Posted on: Wednesday, August 11, 2004

Megan's Law postings should use the courts

Although the process is moving slowly, efforts by law enforcement to make public the names, addresses and other personal information about convicted sex offenders are picking up steam.

And at the moment, the process seems to be working the way it should, according to a 2001 ruling by the Hawai'i Supreme Court, as reported Sunday by Courts Reporter Ken Kobayashi.

In that ruling, the court threw out the previous version of our sex offender, or Megan's Law, statute as being unconstitutional because it did not offer individuals a due process hearing before their name is posted.

A proposed constitutional amendment will be on the fall ballot that would trigger automatic posting of the names and other information on felony and repeat misdemeanor sex offenders.

Ideally, the next several months will demonstrate that there is no need for such a sweeping listing requirement, that a more deliberate process involving a court hearing will do the trick.

The case-by-case approach requires law-enforcement personnel to make considered judgment on who remains at high risk of re-offending.

This is, admittedly, an extra burden on law enforcement and the courts. With experience, the process will become rather straightforward and expeditious.

These hearings are not to retry the case or to argue issues of recidivism; rather they should be a straightforward analysis of whether the person poses enough of a danger so that his or her name should be automatically posted for all to see.

There is no question that the posting — however much needed confidence it will give to the public — might present difficulties for those on the list, no matter how law-abiding they have become.

Information posted would include the offender's name, photograph, aliases, home and work addresses, school, details that identify his car and a capsule history of his offense.

It is not difficult to imagine how such information could be put to improper or vexatious use.

Arguing for a system that places controls around Megan's Law statutes can sound as if one is putting the rights of convicted sex offenders above the safety of others.

But that is not the case. Clearly, the list of some 1,900 individuals with sex offenses on their record vary from the clearly dangerous to the reformed, from the recent to the ancient.

Should they all be subject to the same degree of post-prison sanction?

This does not mean the public should not be warned of the presence of someone who authorities consider dangerous and likely to re-offend. And it is clear that as a matter of public policy, lawmakers in Hawai'i, as in so many other states, have concluded that disclosure of information on sex offenders is more vital than for other criminals.

The Supreme Court didn't disagree with this basic premise, and neither do we.

We simply argue that these matters should be dealt with on a case-by-case basis, with due process protections and with the burden of proof on the individual seeking to stay off the list.

It's clearly a more arduous course, but it is the right way to go.