Sex offender law controversial

If a new Nevada law concerning sex offenders goes into effect, Carson City will go from zero, to an estimated 23, Tier 3 offenders " a term once used to identify an offender who was believed most likely to commit a sexual crime again.

The increase in Tier 3 offenders won't be because those people suddenly moved here.

They've lived here all along, deemed either Tier 2, "moderate risk" or Tier 1, "low risk" under Nevada's former system based on a individual assessment of an offender's risk to the community.

Buckling under the pressure to enact the federal Adam Walsh Child Protection and Safety Act rather than lose out on tens of thousands of dollars in federal funding, Nevada legislators adopted the new system which replaces the individualized risk-based assessments with tier levels dictated by the type of crime committed.

The law changes the penalties for some crimes against children and aims to have states adopt a uniform criteria to categorize offenders.

No longer will the tier levels indicate whether or not a sex offender is low risk, moderate risk or high risk to the community.

That, according to the American Civil Liberties Union, is dangerous to the community and in violation of a number of rights afforded individuals in the U.S. and Nevada constitutions.

"The new system is totally divorced now from risk to the community," said Lee Rowland, northern coordinator for the ACLU of Nevada. "Now all of a sudden the designation of Tier 3 no longer has any relationship to risk."

ACLU lawyer Maggie McLetchie, on behalf of a dozen unnamed plaintiffs, filed an injunction on Tuesday in the U.S. District Court of Nevada in Las Vegas. On Wednesday, McLetchie filed a restraining order. Both are designed to prevent the law from going into effect. On Monday, Judge Jim Mahan granted the injunction and scheduled a hearing for Aug. 26.

On Thursday, Las Vegas Judge David Wall issued a preliminary injunction in a case filed on behalf of two convicted sex offenders who challenged the constitutionality of Assembly Bill 579.

Wall granted the delay until Aug. 29, when he will hear arguments on the constitutionality of the law passed by the 2007 state Legislature.

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For Steve in Lyon County, a man who pleaded to a charge of lewdness with a minor 14 years ago, the lawsuits are a small light at the end of a dark tunnel that engulfed him when he learned of the change in his tier level.

"I feel as though I'm a terminal cancer patient who has just been told that he is in remission," said Steve. "I'm cautiously optimistic."

The 56-year-old factory worker received a letter from the Department of Public Safety stating that as of July 1, he would be deemed a Tier 3 offender.

Since 1994, when Steve pleaded no contest to an allegation that he put his hand on the genitals of the 13-year-old daughter of his estranged girlfriend, the state of Nevada has classified him as a Tier 1, or a low risk to the community.

He was considered to be a low-risk to the community meaning his information was only shared with law enforcement, courts and prosecutors. He was not listed on the state's sex offender registry Web database.

Under the new law, it does not matter that he was evaluated as a low risk or that he's had no such offenses in the years since his conviction.

He will be subjected to community notification and be required to register with law enforcement every 90 days instead of the previous requirement of once a year or when he moves or changes employment.

He must also provide his Social Security number, photograph, e-mail addresses, Internet user names, home address, work address, any professional licenses he holds, a description of the vehicle he drives and his normal travel routes, all of which, it is assumed, will be available to the public on the sex offender registry Web site.

In addition to the increased requirements, Tier 3 offenders will be subjected to lifetime registration and any violation of the requirements can result in a felony arrest. There is also confusion over whether or not another law enacted last summer concerning where Tier 3 offenders on state supervision can live and work, will apply to all Tier 3 offenders now.

The new restrictions are baffling, said Steve, a lifelong Nevada resident who asked that his real name be withheld to protect his identity.

It was his understanding that after 15 years faithfully following the requirements, he could petition the courts to be removed from having to register.

"I've been living for that day, next year, when I could do so. I've followed all the rules, and have gone every year and each time I've moved to re-register," he said.

Under the Adam Walsh Law there is no provision that entitles an offender to petition for a reduction in tier level.

"As each day passes and July 1 draws nearer, I grow more stressed ... this issue is the last thing I think of at night and the first thing when I awake," he said. "It is never far from my consciousness no matter what I'm doing. It is simply eating me alive."

Steve fears community notification will mean that he will be ostracized by his neighbors, singled out by vigilantes, lose his job and be forced to move.

He sees the change as a breach of the contract he signed with the state when he entered into the plea agreement more than a decade ago on the assurance that as a Tier 1 offender, no one need ever know he was convicted of a sex offense.

"When I plead 'no contest' instead of fighting, I sentenced myself to all the crap that goes with being a convicted felon and sex offender," he said. "But now they want to take even my privacy away from me and destroy me and make it a life sentence at that?"

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In the injunctions filed by the ACLU and Las Vegas attorney Randall Roske on behalf of an unnamed client, breach of contract is among several arguments made to stop the law from taking effect.

"Nevada state constitution has a contract clause in it, very similar to the federal constitution contract clause, which talks about Congress not making laws that impair contracts. And the state has its own version that says the state of Nevada shall not do that," said Roske. "They've both done that for anybody who has entered into a plea bargain under existing law. It's the same as if you made a deal to have milk delivered to your door and for the state to interfere with that."

Both Roske and the ACLU also point to the law's vagueness as a major problem.

The definition is broad and far-reaching, according to the ACLU. It includes crimes committed as far back as July 1, 1956, and the only sexual conduct that appears to be exempted is consensual sexual conduct if the victim was an adult or at least 13 years of age and the offender was no more than four years older, the ACLU complaint reads.

"The meaning of 'sexual act' or sexual conduct is not defined, nor is any other statutory definition referenced. Under a separate chapter ... "sexual conduct" (is defined) as "acts of masturbation, homosexuality, sexual intercourse with a person's unclothed genitals or pubic area," the complaints states. "While it is unclear whether this definition is applicable for the purpose of defining sexual conduct under (the Adam Walsh Law), it shows how broadly 'sexual conduct' could be interpreted and how many individuals could be subject ..."

There is also confusion in the new law over whether or not a child is considered someone under 18 or someone under 14.

"It is unconstitutional because it is so vague," said the ACLU's Rowland.

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Bob in Reno, also received notification from the state that his tier level was to increase from 1 to 3.

"To put a law into effect for the people who have served their time and have tried to make peace with themselves and learn from these mistakes ... throws everybody into one big pot to be punished for the rest of their lives," said Bob's wife Susan. The couples names have been changed to protect their identities.

"Now with this going into effect, I have to fear my life, my husband's life and my 11-year-old son's because of what this will stir up in my neighborhood. I now fear being in my front yard because of what neighbors might be thinking, not knowing the circumstances of what and who my husband really is. I also fear for my son in grade school and the harm kids will cause him once they find out who his step dad is."

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The way in which Nevada enacted the law should be of concern to all Nevadans and Americans, said McLetchie.

"Right now these laws only affect sex offenders. Next time the legislators might be wanting to enact some laws against a bunch of other people," McLetchie said. "This is really about how the state of Nevada can enact laws and how they can't enact laws."

"In the court of public opinion, some will find me guilty of touching a girl under 14 inappropriately one time. Some will find me guilty of being just plain stupid and gutless for pleading no contest rather than risk prison if I was innocent," said Steve. "I expect no sympathy either way. What I would expect is that reasonable people would ask themselves if it is OK in this country to ruin a man and label him a monster and a predator for the rest of his life when he has played by their rules for the past 14 years."

- Contact reporter F.T. Norton at ftnorton@nevadaappeal.com or 881-1213.