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A divided federal appeals court has declared that a provision in Pennsylvania’s Megan’s Law is unconstitutional because it automatically subjects out-of-state sex offenders to community notification while granting in-state offenders a hearing on the issue of whether they qualify as a “sexually violent predator” before community notification is ordered. “Pennsylvania’s interest in protecting its citizens from sexually violent predators is certainly compelling. However, subjecting out-of-state sex offenders to community notification without providing equivalent procedural safeguards as given to in-state sex offenders is not rationally related to that goal,” U.S. Circuit Judge Richard L. Nygaard wrote in Doe v. Pennsylvania Board of Probation and Parole. Nygaard, who was joined by U.S. Circuit Judge Theodore A. McKee Jr., rejected Pennsylvania’s argument that it would be impossible to replicate the process it affords in-state offenders for out-of-state offenders. “Certainly in this digital age court records, transcripts, hearing records and pre-sentence reports can be transmitted interstate electronically. There is no doubt that the Commonwealth can accomplish its goal of ensuring the public safety of its citizens and yet assure out-of-state probationers and parolees procedural rights equivalent to that which it offers in-state offenders,” Nygaard wrote. Nygaard also found that since Pennsylvania is a signatory to the Interstate Compact Concerning Parole and Probation, it has promised that out-of-state parolees will be afforded “the same standards that prevail for its own probationers and parolees.” “The Commonwealth promised to treat all parolees, in-state and out-of-state, the same under the compact. � It cannot now argue that concerns about increased costs and expenses are rationally related to its ultimate public safety goals � goals the Interstate Compact seeks to reach through the equitable distribution of costs and expenses,” Nygaard wrote. But in dissent, U.S. Circuit Judge Thomas L. Ambro said he would have reversed the lower court’s decision that struck down the provision because Pennsylvania’s justification satisfies the “rational basis” test. “Any hearing that would be conducted for an out-of-state offender would necessarily be conducted by a judge who is unfamiliar with the offender and nearly always would take place at a time further removed from the conviction, increasing the likelihood that, as a general matter, there would be less relevant information available in an out-of-state offender’s hearing than in an in-state offender’s hearing,” Ambro wrote. “This would make the results of out-of-state offenders’ hearings generally less reliable than those for in-state offenders. Such reasoning is rational,” Ambro wrote. The ruling, which upholds an August decision by U.S. District Judge Louis H. Pollak, is a victory for attorneys Witold J. Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, and John J. Kerrigan Jr. of Langhorne. The plaintiff in the suit, identified in court papers only as “John Doe,” was arrested in New Jersey in August 1999 on charges of molesting an 11-year-old girl. In July 2000, Doe pleaded guilty in New Jersey to second degree sexual assault and was sentenced to five years’ probation and parole supervision for life. In a sentencing report, the New Jersey judge found that “[Doe's] sexual deviation is not compulsive nor repetitive and it appears was the result of an intoxicated condition on the evening of the offense,” and that Doe was “unlikely to commit another offense.” Ordinarily, under New Jersey’s Megan’s Law, Doe would then have had a civil hearing to determine whether his likelihood of recidivism was sufficiently substantial as to warrant his being made a subject of community notification. But because Doe intended to return to Pennsylvania to serve his sentence, New Jersey did not hold a community notification hearing. Instead, Doe requested that his supervision be transferred to Pennsylvania. The Pennsylvania Board of Probation and Parole then held an “equivalency hearing” in which it determined that, if Doe had been convicted in Pennsylvania, he would have been guilty of indecent assault. Under Pennsylvania law, where the victim is under age 13, indecent assault is a first-degree misdemeanor and is designated a “sexually violent offense.” Pollak found that if Doe had been convicted in Pennsylvania, he would have been required to register with the state police and would have been granted a civil hearing to determine whether, under Pennsylvania’s Megan’s Law, he was a “sexually violent predator” for whom community notification was warranted. But because Doe was an out-of-state offender, Pennsylvania officials concluded that he was not entitled to such a hearing. Instead, Doe was notified that he would be automatically subjected to community notification. When Doe refused to consent to community notification without a hearing, the Pennsylvania Board of Probation and Parole denied his application for transfer of probation and informed him that he had to leave the state. Doe’s lawyers then filed both an administrative appeal with the parole board as well as a federal civil rights suit challenging the state’s policy of treating in-state and out-of-state offenders differently. In July 2001, the board gave Doe permission to remain in Pennsylvania pending resolution of his administrative appeal and then stayed the appeal pending resolution of the federal suit. Deputy Attorney General Sue Ann Unger urged Pollak to uphold the law, arguing that out-of-state sex offenders are not similarly situated to in-state sex offenders, and that providing hearings for the out-of-state offenders posed significant problems since the Pennsylvania judges would not be familiar with their cases. But Pollak found that Unger had failed to address “the factor that is at the core of Doe’s claim that Pennsylvania would subject him to community notification without having made the predicate showing that he is a ‘sexually violent predator.’” Now the 3rd Circuit has upheld Pollak’s decision, finding that none of Pennsylvania’s justifications for the law satisfy the rational basis test. Nygaard rejected Unger’s argument that the publicity given to a sex offender’s trial in Pennsylvania rationalizes the disparate treatment of out-of-state offenders whose trials are less likely to receive media attention in Pennsylvania. “Residents of local communities may have limited � if any � information about an out-of-state sexual offender. However, the same is likely to be true about in-state offenders. This lack of general information is one of the principal reasons Megan’s Law was enacted in the first place,” Nygaard wrote. “Because any concerns over the public’s lack of information about out-of-state sexual offenders applies equally to in-state offenders, the Commonwealth’s proffer simply does not rationalize Pennsylvania’s disparate treatment of the two groups, nor does it correlate the illegitimate procedural disparity to its legitimate public safety goal,” Nygaard wrote. But in his dissent, Ambro said he considered the media argument a valid one. “It is not irrational to think that, on the whole, Pennsylvania communities are more likely to be aware of in-state sexual offenders than out-of-state offenders,” Ambro wrote. “The Pennsylvania Legislature could have rationally believed that overall there is likely to be a greater lack of public information for out-of-state offenders than for in-state offenders. This is sufficient to survive rational basis review.” (Copies of the 51-page opinion in Doe v. Pennsylvania Board of Probation and Parole, PICS No. 08-0105, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) •

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