Copyright 2001 American Lawyer Media
                          The Legal Intelligencer

                        September 20, 2001 Thursday

SECTION: FRONT PAGE ; meg; Pg. 1

LENGTH: 1365 words

HEADLINE: Component of Megan's Law Found Unconstitutional

BYLINE: By Melissa Sepos and Laurie Mason, Of the Legal Staff

BODY:

I a case of first impression, a panel of three Bucks County judges has
struck down part of the latest version of Pennsylvania's Megan's Law,
saying it violates sex offenders' constitutional rights.

Judges Kenneth Biehn, John Rufe and Edward Biester handed down their
opinion Tuesday, holding that the "clear and convincing" evidentiary
standard in Megan's Law II for determining whether a defendant is a sexual
predator does not protect the defendant's due process rights. The
appropriate burden of proof, the panel ruled, should be "beyond a
reasonable doubt." The order in Commonwealth v. Bannigan came in response
to James Bannigan's post-trial motions. Bannigan, a 69-year-old New Jersey
man who pleaded guilty earlier this year to raping a 31-year-old mentally
disabled Warminster woman, filed for extraordinary relief to challenge the
constitutionality of the sexually violent predator provisions of
Pennsylvania's Megan's Law; to suppress evidence; to bar ex post facto
prosecution; and to bar a second prosecution for the same offense.
Bannigan's attorney, Vanessa Bellino of the Bucks County Public Defender's
Office, argued that the law, which requires lifetime notification to the
community in which the offender resides and mental health treatment, is
unfair in punishment and process. The judges agreed, saying the penalties
faced by sexually violent predators are harsher than those faced by any
other type of criminal. The judges, however, did not find that the law's
requirement that all sex offenders register their home address with the
state police amounted to "double jeopardy" or extra punishment. "The
sexually violent predator provisions of Megan's Law II, violate [a]
defendant's right to due process by subjecting him to a determination of
his status as a sexually violent predator by a standard of proof which is
less than beyond a reasonable doubt," wrote the panel. Bellino challenged
the process by which a person is determined to be a sexually violent
predator and the dissemination of written notification as violations of due
process rights. In order to protect those rights, she said, the
commonwealth's burden of proof at a sexual predator hearing must meet the
"beyond a reasonable doubt" standard and not the lesser standard in Megan's
Law II, which is "clear and convincing evidence."In its discussion, the
panel noted that it was unable to rely on the commonly used 1999 Supreme
Court case, Commonwealth v. Williams, in which certain components of the
first Megan's Law were ruled unconstitutional.In Williams, the justices
ruled 5-1 that requiring defendants to rebut the presumption that they are
sexual predators is unconstitutional, as is forcing them to live in
communities where neighbors and schools have been notified of their
presence.The high court ruled that because the result of a sexually violent
predator proceeding is criminal punishment and the defendant is not given
full due process rights when required to rebut the presumption, Megan's Law
violated the 14th Amendment to the U.S. Constitution. But the Williams
opinion's "conclusions were not dispositive of the procedural due process
challenge raise by the defendant," wrote the Bucks County panel.In the
absence of Williams, the panel relied on the 1976 U.S. Supreme Court
decision Matthews v. Eldridge to examine the standard-of-proof claim.
"Three distinct considerations must be addressed," wrote the court. "First
the private interest that will be affected by the official action; second
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the government's interest,
including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirements will entail.
"Under the Eldridge test, we conclude that due process requires the
commonwealth to prove that an offender is a sexually violent predator
'beyond a reasonable doubt,'" wrote the judges. The court, however, did
rely on Williams to decide whether the distribution of written notification
of an offender's residence was a due process violation. "Notification puts
the registrant's livelihood, domestic tranquility and personal
relationships with all around him in jeopardy," wrote the court. Given the
lifelong status of a violent sexual predator, the court called for a
"heightened procedural protection." The court followed the Supreme Court's
1999 decision Commonwealth v. Gaffney that determined "the overall effects
of the registration requirements were not sufficiently harsh to classify
the law as punishment" and such requirements violated neither the ex post
facto nor double jeopardy clauses of the Constitution. The Bucks County
judges found that the Legislature's purpose for the registration was not
punishment but to enhance law enforcement efforts. It found that
"registration does not impose substantial disability or restraint on sex
offenders." "By requiring sex offenders to register annually with the local
police, Megan's Law II does not inhibit an offender's rehabilitation. The
simple act of registering does not prevent a sex offender from
reintegrating into society. Although there may be discomfort and
inconvenience in the registration, the burdens of registration are not so
onerous or extreme to amount to punishment," wrote the panel.

IMPACT

"The act," wrote the panel, "imposes a life term of intermediate
punishment, maintains a coercive threat of life imprisonment and allows for
wide-spread public dissemination of personal information. Megan's Law II
impacts a sexual offender's life, liberty and property such that the due
process protections afforded by the United States and the Pennsylvania
Constitutions are required."The panel's ruling will affect similar sex
crime cases in Bucks, until the Supreme Court and ultimately the state
Legislature sort out the debate.Several legal groups filed amicus briefs in
support of Bellino's challenge. They include the American Civil Liberties
Union, the Pennsylvania Association of Criminal Defense Lawyers, the
Defender Association of Philadelphia and the Public Defender Association of
Pennsylvania. Bellino was unavailable for comment. Prosecutors contacted
for comment yesterday had not yet read the opinion.

HISTORY

The federal version of Megan's Law was passed in 1996 in response to the
rape and murder of Megan Kanka, a 7-year-old Hamilton Township, N.J., girl,
by a convicted child molester who lived across the street.Nearly every
state has passed a version of Megan's Law with community notification as a
main theme. Pennsylvania's first version of Megan's Law was declared
unconstitutional in 1999 because it placed the burden of evidence
concerning violent predator status on sex offenders and not the state.An
amended version of the law, Megan's Law II, took effect in July 2000. Parts
have been declared unconstitutional by common pleas judges in Delaware,
Erie, Philadelphia, Indiana and Centre counties. Bucks County Common Pleas
Court is the first to form a panel to determine the constitutionality of
the law. Only one judge, from Northampton County, has ruled that the law
did not violate sex offender's rights. Under the law, all sex offenders
must register their addresses with the state police for 10 years after they
are released from prison. Sexually violent predators those considered most
likely, because of a mental abnormality or personality disorder, to offend
again are subject to more stringent notification, including having their
name and photo distributed to their closest neighbors.According to the
state police, there are 4,891 registered sex offenders and one sexually
violent predator in Pennsylvania. That number is likely to rise as
offenders complete jail terms. (Copies of the 25-page opinion in
Commonwealth v. Bannigan, PICS NO. 01-1887, and the 44-page opinion in
Commonwealth v. Williams, PICS NO. 99-1288, are available from The Legal
Intelligencer. Please call the Pennsylvania Instant Case Service at
800-276-PICS to order or for information. Some cases are not available
until 1 p.m.) *

LOAD-DATE: September 20, 2001