Does Congress abuse its Spending Clause power by attaching conditions on the receipt of federal law enforcement funds to a state's compliance with "Megan's Law?"

• Author: Koenig, Paul

1. INTRODUCTION

   In July 1994, young Megan Kanka was violently raped and murdered by her neighbor, thirty-two-year-old Jesse Timmendequas.(1) Timmendequas lured seven-year-old Megan into his home by offering to show her a puppy.(2) He then fled a belt around her neck and raped her as she was dying.(3) Timmendequas dumped Megan's body next to a portable toilet in a weeded area in a neighborhood park and then joined a search party formed to look for the missing girl.(4) Megan's body was found days later in the same location where Timmendequas had left it.(5)

   Timmendequas had twice been convicted for committing other child sex offenses.(6) Yet it appears that no one in the community knew about his past.(7) Rather, the revelation of Timmendequas's history of sex offenses stunned the neighbors, including Megan's parents.(8) On May 30, 1997, a New Jersey jury found Timmendequas guilty of kidnapping, four counts of aggravated sexual assault, and two counts of felony murder.(9) On June 20, 1997, he was sentenced to death.(10)

   No other crime evokes outrage in a community more than sex crimes against children. The story of what happened to Megan Kanka quickly gained national attention and resulted in the recent passage of numerous state and federal laws targeting the perpetrators of these acts. Part I of this Comment will first explore the crimes that led to this national explosion of legislation. This section will then look at some of the state laws and the amended federal version of Megan's Law. Part II looks at the constitutional challenges to state versions of Megan's Law. Part III examines in greater detail a potential Spending Clause challenge to Megan's Law. This Comment questions whether the amended federal statute violates Congress's limited power under the Spending Clause to attach conditions to a grant of federal funds to the states. If the relationship between the condition set upon the receipt of federal funds and the purpose for the federal expenditure is tenuous, the Court should find the condition to be an unconstitutional attempt at federal regulation. Because the relationship is not tenuous, Congress has not violated its powers under the Spending Clause in attaching a condition of state compliance with the amended Megan's Law statute on the state's receipt of federal law enforcement funds.

   Part III also addresses whether Congress should involve itself in the regulation of sex offenders. Congress should not always legislate simply because it has the power to do so. This Comment argues that while the problem of how to control crimes against children is an issue of national concern, resolution of this problem is best left to the states. States should be allowed to form their own decisions without risking the loss of their share of federal crime fighting funds.

   1. BACKGROUND

      Unfortunately, Megan is just one of many children who became the victim of a child predator. For example, in 1990, a seven-year-old boy was lured into the woods of Washington, abducted, raped, stabbed, and mutilated.(11) The perpetrator, Earl Shriner, cut off the boy's penis and left him to die.(12) The boy was found cowering the woods, naked, and in a state of shock.(13) He survived and identified Shriner as his attacker.(14) At the time, Shriner was out on bail pending a rape charge, and had multiple previous convictions for sexual offenses involving children.(15)

      Similarly, on September 4, 1989, Westley Dodd abducted and killed two young brothers, Cole and William Neer, in a park in Vancouver, Washington.(16) Dodd had packed a lunch that day so that he could stalk children without interruption.(17) After hours of waiting for a suitable target, Dodd spotted the Neer boys tiding their bikes.(18) Dodd tied the boys' hands and proceeded to sodomize Cole.(19) Dodd then stabbed both boys with a fish fillet knife and left them dead in the park.(20)

      A month later, Dodd preyed again, this time on a four-year-old boy named Lee Joseph Iseli.(21) Dodd sexually abused the boy for hours and then strangled him.(22) The next day when he returned from work, Dodd sexually abused the corpse.(23) Dodd later estimated that he had previously molested around thirty children.(24) In a brief to the court, Dodd stated, "[i]f I do escape, I promise you I will kill again and rape again, and I will enjoy every minute of it."(25) The State of Washington executed Dodd on January 5, 1993 in the first legal hanging in the United States since 1965.(26) Similar tragic stories abound.(27)

   2. THE STATE LAWS

      These crimes against children sparked local movements, often led by the parents of the victims, for legislative reform.(28) The parents and communities cried out that if they had known the danger posed by their previously convicted neighbors, they may have been able to protect their children.(29) The politicians responded.(30) Starting in Washington, the site of the seven-year-old boy's kidnapping and mutilation, and continuing in New Jersey, where Megan Kanka was abducted, state after state passed statutes designed to protect their children from sexually violent predators.(31) Today, all fifty states have statutes requiring released sex-offenders to register with local law enforcement agencies.(32) These statutes differ in the scope of persons who fall within the purview of the registration requirements.(33) The state laws also differ in the information a registrant must give when (34) registering. Two states do not apply their law retroactively.(35) Most importantly, significant variation exists in the extent to which this information will be made available to the public.(36) Only seven states do not allow for public notification.(37)

      The rationales behind these laws are compelling. Because of the appalling nature of child sex crimes, legislative debate often focuses on their horrors. Legislators also have noted that the Government has a duty to protect its citizens, especially the young, who are the least able to protect themselves,(38) Furthermore, the problem is widespread. Estimates are that one of every three girls and one of every seven boys will be the victim of sexual abuse before the child reaches the age of eighteen.(39)

      Also, the rate of recidivism for sexual offenders is higher than that for other crimes.(40) The perpetrators often seem unable to prevent themselves from repeatedly engaging in sexually violent behavior. Congressman Charles Schumer of New York addressed this issue in the congressional debate over Megan's Law, stating that "sexual offenders are different."(41) Congressman Schumer noted that long prison terms often do not deter these men from committing future acts of violence.(42) Additionally, attempts at rehabilitation frequently fail.(43) In the words of Congressman Schumer, "[n]o matter what we do, the minute they get back on the street, many of them resume their hunt for victims, beginning a restless and unrelenting prowl for children ... to molest, abuse, and in the worst cases, to kill."(44)

      Because of the disturbing nature of these crimes and an understandable lack of sympathy for the perpetrators, lawmakers have overwhelmingly supported community notification laws. The laws often pass with little debate and strong bipartisan support.(45) It appears that no politician wants to vote against such a bill and be left with the unenviable task of explaining to her constituency that she voted for the rapists over the children because she had constitutional concerns.

      However, this has not prevented legal commentators, who are immune from the pressures of the popular vote, from raising their own doubts as to the constitutionality of Megan's Law. Additionally, released offenders who were required to register with local law enforcement agencies under the act have also brought constitutional challenges.(46) Part II will examine the substance of these challenges to the state laws and the treatment the challenges have received in court.

   3. THE FEDERALIZATION OF MEGAN'S LAW

      In 1989, Jacob Wetterling was abducted near his home in Minnesota.(47) Jacob has not been found to date, and law enforcement officers have not apprehended the perpetrator.(48) Jacob's abduction occurred prior to the passage of a Minnesota State law requiring sex offenders to register,(49) and spurred communities nationwide to press for change.(50) Furthermore, the disappearance of Jacob was the first of these crimes to have an impact at the federal level, leading Minnesota Congressman Jim Ramstad's work on what would eventually become the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (Wetterling Act).(51)

      1. The Origins of the Federal Law

         Congress passed the Wetterling Act as part of the Violent Crime Control and Law Enforcement Act of 1994.(52) The bill gave the States an incentive to "implement a system where all persons who commit sexual or kidnapping crimes against children or who commit sexually violent crimes against any person (whether adult or child) are required to register their address with the state upon their release from prison."(53) The law also allowed state law enforcement agencies to release "relevant information" about the convict that the agencies believed the public should know for protection.(54)

         The 1994 Act did not require the states to comply with its mandates. However, it did provide that "a State's failure to implement such a system by September 1997 will result in that State losing a part of its annual federal crime-fighting funding."(55) If a state failed to comply, it would lose 10% of its allotted share of federal crime fighting funds.(56) Thus, a state which elects not to comply with the federal requirements will currently lose a part of its portion of over $100 million in federal funds.(57) As a result, Congress reserved the ability to exert further pressure on the states to notify the public when sex offenders are released into their communities.

      2. Amendment to the 1994 Act

         The efficacy...