By Caleb O. Brown
SNITCH Contributing Writer
Megan Kanka was 7 years old when she vanished during a bike ride in her small suburban New Jersey neighborhood in July 1994. Police, firefighters and volunteers of all kinds shone lights up and down the residential street searching for her. Megan's mother pleaded with reporters to help the community find her daughter.
The community responded. Everyone up and down the block offered their help, including Jesse Timmendequas, a man who had recently moved into the house across the street. In fact, Timmendequas had seen Megan the day she disappeared. He'd been outside working on his car. He offered to carry a picture of the little girl, to put up flyers pleading for her return.
In his heart, Timmendequas knew Megan Kanka was not going to make it home, because he had abducted, raped and murdered her, then dumped her strangled body into the weeds of a county park.
No one knew Timmendequas had already been convicted twice of sexual assault. In 1979, he sexually assaulted a 5-year-old New Jersey girl and received a suspended sentence. He eventually served nine months for not fulfilling the terms of the suspended sentence.
He struck again in 1981, assaulting a 7-year-old girl. Timmendequas pleaded guilty and spent six years in prison. He then moved into Hamilton Township. No one in the town knew of his past.
After their daughter's death, the Kankas launched a crusade so Megan would not have died in vain. New Jersey and the nation took notice.
Megan's Law
Registering sex offenders is not new. California has been doing it since 1944. Kentucky has done it since 1994. In fact, registering those who commit various other offenses isn't new, either.
But Megan's Law added something very new: Convicted sex offenders suddenly had to keep the police aware of their residence and local police had to notify the community of the arrival of a sex offender in their midst.
New Jersey's ambitious attempt set off a flurry of such laws, and in 1996 President Bill Clinton signed a federal mandate telling states to either put Megan's Law on the books or lose federal funds.
Kentucky, like all states, quickly fell in line, turning its Sex Offender Registry into the primary means to notify communities of sex offenders. That included expanding the number of crimes covered by the registry maintained by state government.
Lt. Brad Bates with Kentucky State Police says the crimes included in the initial 1994 list of "registerable" sex offenses are first-, second- and third-degree rape, first-, second- and third-degree sodomy, first-degree sexual abuse, incest and first-degree unlawful transaction with a minor.
"The list expanded quite a bit after the federal law," he said.
Thanks to the federal mandate, offenses requiring registration now include promoting sexual performance of a minor, first-, second- and third-degree promoting prostitution (if the victim is a minor), second- and third-degree sexual abuse (if a minor is a victim), kidnapping, unlawful confinement and any attempt or solicitation for any of those crimes, Bates said.
And the number of registered offenders has grown as well. Bates said 50 to 60 new names are added to the sex-offender registry each month. From 1994 to 2000, around 1,800 offenders were added to the database. Since 2000, 1,250 offenders have been added. Right now, there are around 3,000 registered sex offenders in Kentucky. Indiana has more than 15,000 registered sex offenders.
The online registry maintained by state police is the principal method of making communities aware of sex offenders in various neighborhoods in Kentucky. Registered sex offenders in Indiana must register with local authorities. That information is then forwarded to the Indiana Criminal Justice Institute. Offenders' names, addresses, crimes and photos hit the web on or before the day they're released, according to state authorities.
Before the new sex-offender law went into effect, local sheriffs were charged with handling community notification, sometimes going door to door in neighborhoods to inform the public of a sex offender's presence. Since the federal mandate, that responsibility has shifted from authorities to individuals. If you want to know if a sex offender lives near you, you have to go online or call a hotline (1-866-564-5652) for the information.
Those sex offenders who have committed offenses that will get them listed in the registry must then check in with authorities at regular intervals and notify authorities whenever they move to another address inside or outside Kentucky.
Controversy
So is the registration requirement de facto probation?
Is it a scarlet letter hung over the necks of sex offenders that could possibly prevent them from getting employment or housing?
Opponents of portions of Megan's Law say the mandatory registration imposes an additional penalty on convicts, essentially punishing them twice for the same crime: They go to prison first, and then their names, addresses, photos and sex-crime backgrounds appear in public for all to see. They fear that reformed sex offenders may be the targets of harassment, and Kentucky even has a law protecting sex offenders from harassment.
Kentucky's sex offender registry states that "use of information from this website to harass a sex offender is a criminal offense punishable by up to 90 days in the county jail. More severe criminal penalties apply for more severe crimes committed against a sex offender."
Some supporters of the requirement say the registry and community notification is nothing more than an administrative penalty, like the removal of voting rights for convicted felons. The community, the supporters argue, has a right to know if a sexual predator lives among them. They say there is no constitutional right for offenders to keep that information from other citizens.
Still other supporters of the requirements say that Megan's Law notifications are no penalty at all, criminal or otherwise.
"The Kentucky Supreme Court holds that opinion as well," said Christie Floyd, an assistant commonwealth attorney in Jefferson County.
She cites the Kentucky Supreme Court's 2002 ruling in Hyatt vs. Commonwealth as evidence. The court found that registration statutes are not punitive and that they are reasonably related to the goals of protecting the public and assisting law enforcement.
Floyd, who also serves on Kentucky's Sex Offender Risk Assessment Advisory Board, added that requiring sex offenders to keep the state aware of their address is emphatically not probation.
"When someone's on probation, they're required to check in with a probation officer and do numerous other things," she said. "The registration and notification statutes really just place on the sex offender an obligation to initially provide this information and then to update any changes to that information."
The U.S. Supreme Court may decide otherwise within the next few months. The high court will rule by July of next year whether community notification programs in two states are unconstitutional. The court heard arguments on Nov. 13 on both cases. If it rules a certain way, perhaps hundreds of sex offenders could suddenly vanish from the commonwealth's fast-growing sex-offender registry. State police officials who maintain the registry don't know how many offenders might be affected.
Children vs. convicts
One of the two cases before the court is Smith vs. Doe, an Alaska case in which two offenders argue that they are being punished "ex post facto," or after the fact.
They argue their crimes were committed and they were convicted before the laws went into effect. If the court rules they're being punished after the fact, then dozens or hundreds of Kentucky's sex offenders may fall off the state's registry and out of the purview of interested communities.
In Kentucky's 1998 statute was a requirement that persons who were either convicted after that date or who were released from confinement after that date to register, according to Floyd. Essentially, the legislation was retroactive to include more offenders.
"The people released from confinement, some of their offenses occurred prior to the effective date of the statute," said Floyd.
If the Supreme Court rules against Alaska, Kentucky's registry would shrink to include fewer sex offenders.
Indiana's law differs slightly, and only sex offenders convicted after the effective date of the legislation are subject to registration, not just those released after the date.
The second case in front of the high court has similar implications. Connecticut Department of Public Safety vs. Doe involves two sex offenders who say their constitutional rights were violated because they didn't get a court hearing to determine if they're still dangerous. Twenty-three states have laws that require registration without the consideration of a court. Kentucky may also have to re-evaluate many registered sex offenders to see if their right to a hearing was similarly denied.
"If (the Supreme Court says) it's a penalty, then they might say that we have to give these people a hearing to say that they're not dangerous anymore," said John Powell, a staff attorney for the Kentucky Justice Cabinet.
Floyd added that many cases in Jefferson County have been remanded for hearings. But she said the high court may also effectively alter Kentucky's procedure.
Catherine O'Connor, executive director of Indiana's Criminal Justice Institute, agrees with Kentucky officials that both states' sex offender registries might have to be shut down while officials work with state attorneys general to interpret the court's ruling and adjust the registries.
O'Connor admits that Indiana does not afford convicts the right of a hearing to determine whether they should be put on the registry.
"Our law outlines which offenses require registration," she said. Kentucky, for better or worse, runs its registry the same way. If the court rules that sex offenders deserve a hearing to determine their risk to the community, Kentucky and Indiana may remand many more offenders' cases for such hearings, possibly shrinking sex offender registries even more.
But there is a bright spot parents might consider. Non-compliance with sex-offender registration in Kentucky is a Class D felony, punishable by up to five years in prison. A sex offender who skips town without telling the cops will likely face more aggressive extradition and prosecution than in other states. Few other states treat lack of compliance so harshly.
Delicate balance
Some of the most vocal critics of efforts to expand the scope of Megan's Law are also the most concerned with children's welfare.
Dan Armagh is an attorney for the National Center for Missing and Exploited Children. He advocates a balanced approach to applying the law, so that courts won't end up throwing out the good with the bad. Armagh cited the case of a truck driver who was convicted of soliciting a prostitute, then found himself to be a registered sex offender, even though there was no evidence that the man was a danger to anyone, least of all his grandchildren.
"Should he not be allowed to be unsupervised with his grandchildren?" Armagh said. "That kind of case demonstrates that you have to be somewhat judicious in what sex offenses you include in the registration requirement. The more selective you are, the better it's going to be in terms of withstanding constitutional scrutiny."
He says there's always a concern that if legislators go too far and apply Megan's Law to crimes that weren't anticipated when the original laws were passed, courts could end up throwing out the constitutional basis for the entire law.
That might not turn out to be a big risk in these Supreme Court cases, but Armagh says the cases here will still have a huge effect on how Megan's Law functions for communities all over the United States.
