Offender statute restricted

A federal judge issued a permanent injunction Wednesday that bars the state of Nevada from applying its new sex offender law retroactively.

U.S. District Judge James Mahan said the law, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, is unconstitutional.

"Many of the plaintiffs here were convicted years ago and have paid their debt to society," the judge said.

He said the law, which would change the way Nevada classifies sex offenders, would subject the plaintiffs to additional penalties -- "not because of anything that they have done."

Mahan likened that scenario to the Legislature passing a law that says anyone ever convicted of burglary must now serve five more years in prison, even though they have been law-abiding citizens since their release from prison. That would be neither fair nor constitutional, he said.

The judge stressed that his ruling would have no effect on existing laws that require the registration of pedophiles or laws that restrict their movement or housing.

Deputy Attorney General Binu Palal said he did not know whether his office would appeal the decision.

"We respect the ruling of the court, and we will review our options after we see the order," he said.

Mahan declined to rule on whether the law may be applied to those convicted of sex offenses in the future. That issue is pending in state court.

District Judge David Wall granted a preliminary injunction in June that prevented the law from taking effect as scheduled on July 1. Mahan issued a preliminary injunction a few days after Wall's ruling.

The new law changed how the state categorizes sex offenders. Instead of categorizing them by their risk of re-offending, it categorized them by the crime they committed.

It would have increased the number of Tier 3 sex offenders in Nevada from about 160 to more than 2,500. Tier 3 sex offenders have been convicted of the most serious offenses, including sexual assault and crimes against children.

Tier 3 offenders must register with authorities every 90 days, submit to fingerprinting and, in some cases, wear GPS monitoring devices. Their personal information, including their photos, is posted on the state's sex offender Web sites.

During Wednesday's hearing, Palal disputed Mahan's contention that the law's notification and registration requirements constitute punishment.

"These are not additional criminal penalties," Palal argued.

The Legislature passed the law in 2007 to bring Nevada in line with the federal Adam Walsh Act, signed by President Bush in 2006. The intent was to push all states to categorize sex offenders the same way.

Backers of both the Nevada and federal legislation contend sex offenders will have a harder time evading detection once all states are on board.

Maggie McLetchie, staff attorney for the ACLU of Nevada, said the federal law "is falling apart at its seams." She said most states have not enacted Adam Walsh Act legislation.

Mahan said Nevada's new law violated a constitutional ban on "ex post facto," or retroactive, laws. He also said it violated due process clauses of the Fifth and 14th amendments, as well as the double jeopardy clause of the Fifth Amendment.

"We're thrilled by the ruling," McLetchie said. "We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders. The ACLU strongly believes that the Constitution applies to everyone, including convicted sex offenders."

However, McLetchie said the case is not about the rights of sex offenders. "It's about the limits on the power of government," she said.

One of the plaintiffs in the federal case, a Las Vegas man identified only as "Doe 2," pleaded guilty in 2001 to attempted lewdness with a minor under 14. The felony conviction resulted in five years of probation and lifetime supervision.

In an interview Wednesday, the man claimed innocence.

"I was accused of something that I didn't do, because my 'ex' was trying to take custody of my son," he said.

He said he has had the same construction job for 28 years, has remarried and has three children. Before the new law was passed, he was placed in the Tier 1 category after he was assessed as a low risk for re-offending.

After the new law was passed, his probation officer told him he would be reclassified as a Tier 3 offender. That meant his neighbors would be notified about his conviction.

"I feared for my family's well-being," he said.

He also worried that the new classification would prohibit him from picking up his children at school. Tier 3 offenders may not go within 500 feet of schools or parks. And the man's boss told him he might lose his job.

When McLetchie told Doe 2 about Mahan's ruling Wednesday, he said, he broke down with joy.

"I've been carrying this on my shoulders for quite some time," he said.

Gary Peck, executive director of the ACLU of Nevada, said Mahan's ruling underscores the need for the Legislature "to pay more careful attention" to what the organization's representatives have to say when advocating for constitutionally sound laws.

"It would have been nice had the AG's office been willing to engage in more constructive dialogue with us throughout the course of this litigation," he said.

McLetchie said the 2009 Legislature will get "another crack at the apple."

"In the ACLU's view, the existing laws worked because they really did focus in on public safety and risk to society," she said.

Attorney Robert Langford, who worked on the case with the ACLU, said Mahan "may have just saved the taxpayers of the state of Nevada several million dollars to institute the bizarre supervision scheme anticipated by the new statutes."

"That was a fiscal impact not considered by the Legislature and in my opinion that is what has kept most other states from adopting this wickedly Draconian statutory scheme imposed by the federal government," he said.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-383-0264.