Megan's Law and the protection of the child in the on-line age.

• Position: Protection agains sexual offenders - Panel Discussion

Professor Nadine Strossen v. Professor Ernie Allen Moderated by Mr. Walter Pincus April 15, 1998 Georgetown University Law Center

PAUL KAPLAN: Good afternoon and welcome to the Third Annual American Criminal Law Review Debate. My name is Paul Kaplan. I'm the Editor-in-Chief of the ACLR and it's my pleasure to welcome all of you to the event this afternoon.

This debate series was inaugurated three years ago to mark the ACLR's twenty-fifth anniversary at Georgetown, and this event is the centerpiece of our summer issue each year. Past events have brought a number of noted and vibrant speakers to campus, including Alan Dershowitz, Johnnie Cochran, Stephen Bright, Akhil Amar, Judge Alex Kozinski, and the late Judge Harold Rothwax. Today we are very pleased to add to those ranks once again.

To introduce today's participants to you, I'd like to turn over the event to the organizer of this debate, the ACLR's Executive Editor, Robert Kwak.

ROBERT KWAK: Thank you. My name is Robert Kwak and I'm the Executive Editor of the American Criminal Law Review. On behalf of the Journal let me also welcome our distinguished speakers, students, faculty, and members of the administration to our annual debate, this year entitled "Megan's Law and the Protection of the Child in the On-Line Age."

Before I introduce today's participants, a word about our format. Our moderator will direct each question to one participant. He or she will have five minutes to respond, and our other speaker will have three minutes for rebuttal. At the end of the debate each participant will have five minutes to make a closing statement. I now have the distinct privilege of introducing our distinguished guests.

Ernie Allen is the co-founder, president, and CEO of the National Center for Missing & Exploited Children. Based in Arlington, the National Center is a private, non-profit organization which has aided in the recovery of close to thirty-nine thousand missing and abducted children. In addition, his organization helps to train local law enforcement to combat child abduction and exploitation, operate the child pornography tip line in cooperation with the United States Postal Service, and has recently established the Cyber Tip Line, allowing individuals to report incidents of child pornography and sexual exploitation through current on-line services.

Prior to his current post, Mr. Allen worked in public service in his native Kentucky as Director of Public Health and Safety for the city of Louisville, and Director of the Louisville Jefferson County Crime Commission. Mr. Allen, a graduate of the University of Louisville and the University of Louisville School of Law is a member of the Kentucky Bar. In addition to teaching at his alma mater, he has held faculty positions at the University of Kentucky, Indiana University, and has served as visiting faculty at Northeastern and the University of Wisconsin. We are honored to have him here today.

Debating against Mr. Allen is Ms. Nadine Strossen, President of the American Civil Liberties Union. Founded in 1920, the ACLU is considered the nation's foremost advocate of individual rights. It has been involved in some of the most famous and infamous litigation in our nation's history, including' the Scopes anti-evolution case, the forced relocation of Japanese-Americans during World War II, and most recently in overturning the Communications Decency Act. Ms. Strossen was elected to her current position with the ACLU in 1991 after serving as general counsel to the organization since 1986.

In addition to her duties at the ACLU, she is a professor of law at New York Law School, where she teaches constitutional law and international human rights. She is the author of numerous articles and books, including Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. A native of Minneapolis, Professor Strossen graduated with high honors from Harvard Law School, where she was an editor of the Law Review.

Finally, our moderator today is Walter Pincus, senior correspondent for the Washington Post. In his four decades in journalism he has worked for a variety of major newspapers, television networks, and has served as the Executive Editor for the New Republic. Mr. Pincus has covered some of the most important stories of the last half of the twentieth century for the Washington Post, including the Watergate hearings, the hostage crisis in Iran, the Iran-Contra Affair, and the Aldridge Ames espionage case. In 1981 he received an Emmy for writing on a CBS News documentary series on defense of the United States.

In addition to his responsibility as a journalist, Mr. Pincus serves as a consultant to the Washington Post Corporation, where he's helping to steer the newspaper into the non-print ventures of television and the World Wide Web. A graduate of Yale University, Mr. Pincus is currently a student here at Georgetown in the Law Center's evening division. It is a pleasure to have all three participants join us today and, without further ado, I turn the lectern over to Mr. Walter Pincus.

WALTER PINCUS: Lecturing instead of listening here: It's a new event.

In late July of 1994 a seven-year old New York girl named Megan Kanka was abducted, raped, and murdered by a twice-convicted sex offender who, unknown to her parents, lived just across the street with two Other men who had been convicted of sex offenses. Public outrage about Megan's murder was immediate, intense, and inevitably political. Within two weeks New Jersey's governor and the State General Assembly were considering bills for registration and community notification. By October, the Governor had signed the registration and community notification laws, which had quickly passed both the State Senate and General Assembly.

The horror of the event had been carried into every home in the country, by television, by radio, and by print. The resultant fear within every household with young children created a political wildfire. Similar laws were rapidly passed in other states, so that by the time the first court challenge to Megan's Law reached New Jersey's courts in 1996, forty-nine states, according to a recent Washington Post article, had adopted similar sex offender registration laws, and thirty-seven had maintained some form of community notification program.

Congress had its own version, which President Clinton signed in May of 1996. Last year, the Third Circuit Court of Appeals rejected arguments that Megan's Law violated constitutional guarantees against double jeopardy and ex post facto punishment. Registration and notification were approved. One court decision said the danger of recidivism requires a system of registration which will permit law enforcement officials to identify previous offenders and alert the public, when necessary, for public safety. It rejected the notion that the law was punitive against convicted sex offenders. The dissenting judge, however, said it was punitive, notwithstanding the Legislature's subjective intent to the contrary. Early this year the Supreme Court refused to hear an appeal on the New Jersey decisions. So Megan's Law as passed, and modified by court decisions, is enforced.

We hope today through discussion and debate, to allow you to understand the pros and cons of the laws, as well as the conflicts inherent in the implementation of them. These are untested laws. They exist in widely different forms throughout the country, but they were put together out of honest fears.

Not for the first time in our history will laws reduce the rights of some--in this case, the over one hundred seventy-five thousand classified as sexual offenders--in the name of protecting others. We'll focus on various forms of notification adopted in jurisdictions around the country, including not only distribution of handbills, law enforcement announcements, publication of notices, but the newer techniques of CD-ROM, the Internet, and 900 telephone numbers.

You've heard how the process will begin. I will now start with a question for Mr. Allen.

Megan's Law statutes have been justified as a necessary means of protecting the public from a group of individuals who may be likely to repeat their crimes. These laws have also been attacked as a way to continue punishing offenders after they've served their sentences. What do you say is the purpose of Megan's Law? Do these laws protect the public or punish offenders?

ERNIE ALLEN: Mr. Pincus, these laws protect the public. That is their purpose. They are not punitive; they are regulatory. We are dealing with a category of offenders who represent the highest risk to the community, and particularly, to the most vulnerable sections of the community.

Let me try to provide a little perspective. Megan's Law is one element of comprehensive state sex offender policy. That policy includes aggressive enforcement, prosecution, meaningful sentencing, treatment as a matter of opportunity, not right, and then follow-up in the community for these released offenders. Follow-up includes registration for all convicted offenders and notification for the most serious of those offenders.

Now, a question I suppose one could ask is "why sex offenders?" Well, our view is that sex offenders are different. We would not support, and do not support such approaches and such legislation for auto thieves or bad check artists, but sex offenders are different. Sex offenders create enormous fear among the public. The nature of their act conveys a kind of psychological menace or harm. Sex offenders prey upon the most vulnerable segments of our population.

The majority of the victims of America's sex offenders are kids, and research has shown that a significant subset of the sex offender population represents the highest risk of reoffense. They are coming back into our communities. Therefore, is it not appropriate that government, as an exercise of its legitimate public purpose of maintaining public health and safety, should...