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Judicial Restraint and Megan's Law

By James L. Hirsen, J.D., Ph.D.

This week the U.S. Supreme Court did something they need to do more often. Nothing. At issue before the Court was a New Jersey law that had been challenged as unconstitutional. The law in question was "Megan's Law," named after a seven-year old victim of an abduction, rape and murder.

On July 29, 1994, seven year old Megan Kanka was walking home after playing at a friend's house. She was about to ring the doorbell of her home when Jesse Timmendequas, a thirty-three year old landscaper, called to her from across the street. He asked her if she would like to pet his new puppy. Little Megan followed him into the house to an upstairs bedroom. She was then strangled, raped, asphyxiated and unceremoniously dumped in some bushes near a local soccer field, her lifeless body stuffed casually into one of Timmendequas' toolboxes.

The monster that committed this vile, unspeakable act had been convicted not once, but twice, for sexual offenses with young, innocent girls. Without the community's knowledge, for approximately one year Jesse Timmendequas had been living across the street from little Megan Kanka's Hamilton Township home, in perfect proximity for his reprehensible plans.

Due to the tremendous public outcry over this heinous and unnecessary tragedy, the New Jersey State Legislature drafted a statute. The law mandated that authorities must notify the community where convicted sex offenders are located when they have moved into the area. On October 1, 1994, only three months after Megan's death, Governor Christine Todd Whitman signed into law an eleven-bill package known as Megan's Law.

Like any reasonable parents, Mr. and Mrs. Kanka insisted that they would never have allowed their Megan to have unrestricted access to the neighborhood if they had only known of Timmendequas' past. Maureen and Richard Kanka, Megan's parents, led the fight for the notification law.

Who would ever challenge such a law? We can credit none other than those pseudo-guardians of freedom, the ACLU. They argued that the law violated the "Double Jeopardy" clause found in the Fifth Amendment of the Constitution and the "Ex Post Facto" clause found in Article 1, Section 9 of the Constitution.

Double jeopardy prevents a criminal from being tried, convicted or punished for the same offense twice. Under the Ex Post Facto clause, any subsequent law that inflicts a greater punishment than the original law that prohibited the crime is contrary to the intended meaning of the Constitution.

The ACLU focused on the penalty that they contended Megan's Law created. They argued that the law had no remedial effect or purpose, and that it added further punishment in violation of the Ex Post Facto clause. Additionally, they asserted that its primary objective was punitive, comparing it with the historical, colonial practices of a scarlet letter or public display of a prisoner in stocks. Since the alleged punishment occurs after the offender is released from prison, they also maintained that it violates the Double Jeopardy clause.

Thankfully, the Supreme Court refused to hear such nonsense. Clearly, this law was not designed to punish. If society were to create a suitable penalty, no doubt suggestions would more closely resemble medieval practices than current methods utilized.

The essential goal of the registration and notification procedure contained in Megan's Law is to provide law enforcement officials, and those most likely to encounter a sex offender, an awareness of a potential hazard. The law simply gives a modicum of notice to the local community that a dangerous offender is in its midst. Moreover, the information involved is not private, but rather, it is a matter of public record.

Most often, this type of criminal activity is committed over time, cloaked in the shadows of secrecy. As in little Megan's case, the perpetrator usually seeks to establish a relationship of trust with the vulnerable and unguarded victim. Statistics regarding repeat offenses are staggeringly high.

The legislators in New Jersey, and thirty-seven other states that responsibly passed this law, deserve our praise. And while we are giving accolades, we should commend our Supreme Court for respecting the legislative process and safeguarding state sovereignty. Let's hope this truly signals a trend.

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James L. Hirsen, J.D., Ph.D.

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