Court upholds Nevada’s sex offender law
A federal appeals court Friday upheld a Nevada law requiring sex offenders to be retroactively classified by their crimes instead of their risk of reoffending.
In the same decision, the 9th Circuit Court of Appeals in San Francisco struck down part of another state law that would have retroactively applied residency and travel restrictions on some convicted sex offenders.
The decision overturned a U.S. District Court injunction that had stalled implementation of the laws for more than three years.
Nevada Attorney General Catherine Cortez Masto, whose office appealed the injunction, hailed the appeals court’s decision.
“It has been a long but necessary fight,” Masto said in a statement. “It creates a system that requires sex offenders to be subject to rigorous reporting requirements. We owe it to our community to do our best to protect our citizens — particularly those most vulnerable –from adult sex offenders.”
Maggie McLetchie, who represents sex offenders fighting the laws, called the ruling a “mixed victory.”
The case arises from two state laws passed in the 2007 Legislature to comply with the federal Adam Walsh Act passed by Congress in 2006.
A key part of one law, Assembly Bill 579, reclassified sex offenders based on their original crimes, not their likelihood to reoffend. The appeals court upheld that law. The second law, Senate Bill 471, imposes stricter travel and residency requirements on the most serious Tier 3 offenders. For example, they would be barred from knowingly being within 1,000 feet of a school bus stop. Both laws were written to apply retroactively to sex offenders convicted as far back as 1956.
The appeals court upheld the retroactive requirement for reclassification, but it threw out that requirement for the travel and residency restrictions after a deputy attorney general said during oral arguments in December that the state did not intend to apply those requirements retroactively.
The American Civil Liberties Union of Nevada and lawyer Robert Langford had filed a federal lawsuit on behalf of sex offenders to stop the laws from taking effect in June 2008. They argued that the laws unconstitutionally re-punished sex offenders for years, and in some cases decades, after they had completed their sentences and probation.
The laws would reclassify many Tier 1 offenders as Tier 3 offenders, subjecting them to stricter registration and living requirements. And the extreme residency requirements would make “it impossible for offenders to live or go anywhere,” they said in the lawsuit.
In October 2008 U.S. District Judge James Mahan issued an injunction to stop the new laws from taking effect, saying the retroactive requirements were equivalent to “a new punishment tacked on to the original sentence.”
ACLU lawyer Allen Lichtenstein said his organization and the other lawyers involved were evaluating the decision and looking at what their next legal step might be.
In the meantime, he said, state authorities who track sex offenders will be overwhelmed by a flood of new cases in which lower-level sex offenders are reclassified as more serious risks, even if they committed their crimes decades ago.
Contact reporter Brian Haynes at bhaynes@review journal.com or 702-383-0281.
