Federal judge halts sex offender law

A federal judge issued a last-minute order Monday that stopped Nevada's new sex offender law from going into effect until constitutional challenges are resolved.

U.S. District Judge James Mahan said he was concerned that if the law goes into effect today as planned, low-level sex offenders would be incorrectly and publicly identified when their information is posted on the state's sex offender Web sites. They would not be able to regain their anonymity if the law is later found unconstitutional, he said.

The cat, Mahan said, would already be out of the bag.

"It's a matter of due process," said the judge, who will hear arguments on whether the law is constitutional on Aug. 26.

The federal challenge to the new sex offender law was brought by the American Civil Liberties Union of Nevada and local defense attorney Robert Langford on behalf of 12 sex offenders. They argue that the law punishes sex offenders again for crimes they already paid for, is cruel and unusual punishment, and is restrictive.

The new law would change the way Nevada classifies sex offenders. Currently, sex offenders are categorized by their risk of re-offending. Under the new law, sex offenders would be classified by the crimes they committed.

The new law would change the number of Tier 3 sex offenders in Nevada from about 160 to more than 2,500.

"The changes to the law don't rationally further public safety," said Maggie McLetchie, staff attorney for the ACLU of Nevada. "So we think this stay is the best thing. There have been people who are afraid they're going to lose their jobs. There are people who are just confused about what the law means."

The state attorney general's office and several law enforcement agencies contested the challenge brought by the ACLU and Langford. They argued that challenges should have been filed a year ago when legislators passed the law, not a week before it was to be enacted.

McLetchie countered by saying that the ACLU and Langford needed time to study the law and did not yet have standing to make a challenge.

The law, AB579, faces several challenges in state court. A district judge last week granted an injunction that temporarily bars the Nevada attorney general's office and the Nevada Department of Public Safety from implementing the law in Clark County.

Mahan's order takes that ban one step further and prevents the state agencies from implementing the law statewide, at least until late August.

Mahan said Monday that the appropriate thing to do is grant the delay and "give everyone a chance to sort this out."

Deputy Attorney General Binu Pilal said after the hearing that he respects the judge's decision and will "continue to defend the public safety and the constitutionality of Nevada's statutes."

The law requires new Tier 3 sex offenders to register with authorities every 90 days, submit to fingerprinting and, in some cases, wear GPS monitoring devices.

The new Tier 3 offenders will have their personal information and photos posted on the state's sex offender Web sites. Under the new law, Tier 3 sex offenders are defined as those who have been convicted of the most serious offenses, such as sexual assault and sexual abuse of children under the age of 13.

The sex offenders represented by the ACLU and Langford are not identified. They are from Clark County and Washoe County. Many will change from Tier 1 to Tier 3 if the new law takes effect.

One plaintiff, identified only as "Doe D," pleaded guilty in 2005 to three counts of attempted lewdness with a child under 14 and was given a suspended sentence of 12 to 60 months.

He is "emotionally distraught and depressed" with the enactment of the new law, the complaint said.

Another plaintiff, identified only as "Doe E," pleaded guilty to attempted lewdness with a child under 14 and two counts of statutory sexual seduction in 2002. He was sentenced to 48 to 120 months. He is afraid he will lose his job if he has to take a day off of work every three months to register.

The new law has caused Doe E "extreme anxiety, inability to sleep and caused him to cry for two to three hours without reason," court documents said.

The Legislature passed AB579 in 2007 to put Nevada in step with the federal Adam Walsh Act, signed into law by President Bush in 2006. The intent of the federal act is to push all states to categorize sex offenders the same way.

Supporters of AB579 and the federal act contend sex offenders will have a harder time evading detection nationally if all states comply. They argue the public has a right to know whether sex offenders are living in their communities.

Assemblyman David Parks, D-Las Vegas, was chairman of the legislative committee that introduced the bill. Since it was passed, Parks said he has seen similar challenges to similar state laws across the country. So it did not surprise him Monday to hear that Mahan issued a stay in the law's enactment.

Though AB579 is being challenged in state and federal court, Parks said he does not regret supporting it. He said not complying with the federal act put Nevada in danger of losing about $300,000 of $3 million in federal grants.

He also said he supports what the federal law set out to do, such as create a nationwide database of sex offenders.

"I do believe in the basic tenants of it," Parks said.

Contact reporter David Kihara at dkihara@reviewjournal.com or 702-380-1039.