Megan's Law: Constitutionality and policy

Abstract

In July, 1994, a seven-year-old girl, Megan Kanka, was sexually molested, then killed, by Jesse Timmendequas, a twice-convicted sex offender who lived with two other sex offenders in a house across from her in Hamilton Township, a small middle-class New Jersey town. Timmendequas had been released earlier from Avenel, New Jersey's prison/treatment center for compulsive, repetitive sex offenders. Timmendequas had constantly refused treatment during his stay at Avenel. Though he had been sentenced to seven and a half years, he maxed after only six because he had earned good credits. The killing of Megan, to which Timmendequas confessed, generated enormous public outrage. More than a thousand people turned out for a vigil in a local park. Over 1500 petitions to the governor were signed insisting that legislation be enacted that would prevent a reccurence of such a tragedy. Less than two months later, in October, the New Jersey legislature, having bypassed hearings on prospective bills because of the alleged emergency created by death, responded to public pressure by enacting a hastily prepared package of nine sex offender statutes that have come to be known collectively as Megan's Law.(1) This article will focus mainly on the constitutionality of the most significant three of these new statutes but will also discuss their soundness as policy. The three statutes discussed here deal with the registration of released sex offenders, community notification of their presence in the community, and the civil commitment of extremely dangerous mentally ill sex offenders.(2) The primary attack on these measures at this time is litigative. The constitutionality of the registration and notification statutes was challenged in federal court almost immediately after their passage. In February, 1995, a federal district court in Newark, in Artway v. Attorney General of New Jersey,(3) which concerned a sex offender who had served seventeen years in prison, struck down portions of the notification statute that applied to sex offenders whose original offences predated the statute's enactment. But the district court did uphold the registration statute as constitutional. The Artway decision was appealed to the Third Circuit Court of Appeals which, on April 12, 1996, affirmed the constitutionality of New Jersey's registration statute. The Court of Appeals then reversed the district court's ruling on the notification statute, holding that the issue of notification was not yet ripe for judicial review since Artway had not yet been evaluated or assigned to a notification category, and that there had been no hearing at which adequate facts concerning notification had been presented. Judge Becker, speaking for the Third Circuit court, characterized the district court's decision by saying that it had allowed no discovery, heard no testimony, and made no finding of fact. Instead it ruled as a matter of law on all the complex issues before it. He concluded that . .we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute `punishment'--the central question under all three clauses--without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated). He further added that Artway's claim that notification constitutes punishment is quite persuasive but simply not ready for judicial review.(4) For the brief time being, then, there is no viable federal determination in New Jersey striking down the notification statute. But there is currently federal litigation pending which raises the question anew. While the registration question now seems fairly well settled, the Third Circuit decision in Artway represents only a delay toward reaching finality of judgment on the community notification issue. The two statutes were also challenged in the state courts. …