January 28, 2000
PENNSYLVANIA COURT CASE ON MEGAN'S LAW CONSTITUTIONALITY
By: Lawrence K. Furbish, Acting Director
You asked if the recent Pennsylvania court case finding portions of that state's version of Megan's law unconstitutional indicates any problem with Connecticut's version of Megan's law.
Because our version of Megan's law differs regarding the registration of sexually violent offenders, it does not appear to have any constitutional problem, at least based on the Pennsylvania decision. In Pennsylvania sexually violent offenders were required to register for a minimum of 10 years and then had to remain registered until they proved in court that they were no longer a “sexually violent predator.” The law presumed that they were a sexually violent predator, and the burden of proof was on them to establish in court by clear and convincing evidence that they were not. The Pennsylvania Supreme Court ruled that this shift of the burden of proof violated procedural due process guarantees under the federal and state constitutions.
When Connecticut's version of Megan's law was significantly revised in 1998 it contained a provision very similar to Pennsylvania's, but in 1999 the General Assembly repealed this provision and required sexually violent offenders to register for life with no opportunity to prove that they are no longer dangerous. Thus, there is no shifting of the burden of proof issue, and the Pennsylvania court's reasoning would not apply here. This does not mean that our law could not be challenged under some other legal theory.
Pennsylvania has a State Board to Assess Sexually Violent Predators (42 Pa. C.S.A. § 9799.3). It is made up of psychiatrists, psychologists, and criminal justice experts with expertise in the field of behavior and treatment of sexual offenders. All are appointed by the governor. They serve four-year terms, are paid $200 per case, and receive staff support from the state Board of Probation and Parole.
The board must assess everyone convicted of a sexually violent offense after conviction and before sentencing (42 Pa. C.S.A. § 9794). The statute mandates that anyone convicted of a sexually violent offense is “presumed” by the board and the court to be a sexually violent predator. This presumption “may be rebutted by the offender by clear and convincing evidence at a hearing.”
Two members of the board must assess the offender. They must consider such things as: (1) his and the victim's age, (2) his prior record, (3) if there were multiple victims or a pattern of abuse, (4) the nature of the sexual contact and if it was unusually cruel, (5) any history of mental illness or disability, and (6) prior sex offender treatment. The board issues its report to the court, which must hold a hearing. The offender and district attorney must be given notice and allowed to appear and to call and cross examine witnesses, and the offender has the right to counsel. The court must decide if the offender is a sexually violent predator based on the evidence presented at the hearing.
One year after his release from a correctional institution an offender has the right to a rehearing and at five-year intervals thereafter he can petition the court to reconsider the decision. The person's duty to register continues until a court determines that he is no longer a sexually violent predator (42 Pa. C.S.A. § 9795).
PENNSYLVANIA COURT CASE
In Commonwealth v. Williams, 733 A.2d 593 (1999) the Pennsylvania Supreme Court heard the appeal of an offender who had been found to be a sexually violent predator. He asserted that the statutory scheme violated his procedural due process rights under the Fifth and Fourteenth Amendments to the United State's Constitution and Article one, section nine of the Pennsylvania Constitution because it impermissibly shifted the burden of proof by establishing the presumption. The Court examined the various standards established in relevant cases and concluded that the defendant was right. It found that the determination of whether someone is a sexually violent predator is a separate factual question and that the defendant is entitled to the full panoply of relevant protections guaranteed under due process. Accordingly, the court found the sexually violent predator provisions of the Pennsylvania law unconstitutional, struck them from the act, and sent the case back to Superior Court for final disposition.
Pennsylvania appealed the decision to the U.S. Supreme Court, but the Court turned down the appeal without comment. The effect is to uphold the state Supreme Court's decision.
In 1998 the General Assembly enacted major revisions to our sex offender registration law. Among other things the new law required sexually violent offenders to register for 10 years after which they could ask the court where they were convicted to terminate their registration (CGS § 54-255). The court had to refer the application to a board of sex-offender experts to examine the offender and his potential for further sexually violent behavior. The court had to notify the police and state's attorney and allow them to make a statement. The court was required to grant the request if it concluded by clear and convincing evidence that the offender did not have a mental abnormality or personality disorder making it likely for him to commit another sexually violent offense.
In 1999 the General Assembly repealed this provision as part of PA 99-183 (§ 6). Currently a sexually violent offender must register “for life” (PA 99-183 § 3). In the public hearing on sHB 6785, which became PA 99-183, Mike Cicchetti, of the Office of Policy and Management testified that this change was necessary due to federal requirements (see attached testimony).