The predator law

Published: Saturday, January 25, 2003 at 6:01 a.m.
Last Modified: Friday, January 24, 2003 at 11:34 p.m.
A recent ruling states that sexual offenders can speak out before given a lifetime stigma, and the state should act.
Politicians may scream about a Florida appellate court's declaration that a popular law regulating "sexual predators" is unconstitutional, but the decision showed considerable restraint and highlighted a problem that is easily fixable.
The 3rd District Court of Appeal in Miami released its decision last week. A three-judge panel ruled unanimously that the predator law - similar to "Megan's Laws" enacted initially in New Jersey and ultimately in every state - violated an offender's right to "procedural due process."
That means the offender had no opportunity to show why the law's sanctions shouldn't be applied to him.
One of the criteria for being labeled as a sexual predator is whether the offender is likely to commit future sexual offenses.
So why was this decision a sign of judicial restraint rather than the kind of judicial activism that conservative politicians so abhor? The DCA panel spelled it out in a footnote:
"New Jersey's original Megan's Law' did not provide for a judicial hearing on the risk of future offenses, but the state's Supreme Court read such a requirement into the statute. . . .Without this judicial amendment to the statute it would have been unconstitutional. . . . We however, cannot judicially amend [the Florida statute], as that province in Florida is left solely to the Legislature."
So it was the New Jersey court that was guilty of "judicial activism" because it established, by judicial fiat, a procedure that made the law passed by that state's Legislature constitutional.
The Florida court said that would be an intrusion into the Florida Legislature's domain, so it had no choice but to declare the law unconstitutional.
If all that sounds too technical, it boils down to this: The Legislature, which meets in March, can solve the problem by providing for a judicial hearing in which an alleged sexual predator can demonstrate he doesn't deserve that lifetime stigma.
Will the Legislature do it? Probably, but not without a lot of bellowing about how the courts are interfering with the Legislature. That's politics.
The "Megan's Law" sanctions are significant. Anyone determined to be a sexual predator must register with with the state. The registration is a public record, which public officials are required to disseminate widely.
Anytime they move, sexual predators are required to notify the state in advance. And sexual predators are prohibited from working anywhere that children regularly congregate.
The law was passed out of concern for the safety of children. Sexual predators get that designation automatically when found guilty of certain sexual crimes.
But under the current law, they have no opportunity to contest that designation, even if mitigating circumstances exist.
It is not unreasonable for state law to provide a judicial forum in which a convicted sexual offender can attempt to demonstrate that he doesn't deserve lifetime sexual predator sanctions.
The appellate court agreed that the constitution affords that protection. The Legislature should act accordingly.

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