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ACLU says laws unfair toward sex offenders

A pair of Nevada laws that toughened sex offender registration requirements are unconstitutional, a civil rights lawyer told a federal appeals court panel Wednesday.

Maggie McLetchie, a lawyer arguing for the American Civil Liberties Union of Nevada, told judges with the 9th Circuit Court of Appeals in San Francisco that the new laws re-punish sex offenders by upping their tier classifications, in some cases forcing them to move because they lived too close to a school or other place prohibited under the laws.

“It was being applied retroactively,” McLetchie said. “We needed an injunction because parole and probation officers were telling our clients they had to move.”

Deputy Nevada Attorney General Binu Palal countered that the law as written does not require offender tiers to be changed and that state officers who said as much were wrong.

“They never should be applied retroactively,” Palal said.

The case arises from two state laws passed in the 2007 Legislature to comply with the Adam Walsh Act passed by Congress in 2006.

The federal law required states to comply or risk losing 10 percent of a federal criminal justice grant.

The ACLU said Nevada would have lost about $300,000 a year.

A key part of the state laws reclassified sex offenders based on their original crimes, not their likelihood to offend again.

The laws also imposed 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.

The ACLU and lawyer Robert Langford filed a federal lawsuit on behalf of sex offenders to stop the laws from taking effect. In the lawsuit filed in June 2008, just before the laws were to take effect, the lawyers 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.

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 going into action.

“The application of these laws retroactively is the equivalent of a new punishment tacked on to the original sentence,” the judge wrote in the injunction.

The Nevada attorney general’s office appealed the injunction, which led to Wednesday’s hearing.

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.

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