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The 3d U.S. Circuit Court of Appeals has declared that a provision in Pennsylvania’s Megan’s Law is unconstitutional because it subjects an out-of-state sex offender to community notification but grants an in-state offender a hearing on the issue of whether he qualifies as a “sexually violent predator” before community notification is ordered. Doe v. Pennsylvania Board of Probation and Parole, No. 05-4200. “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,” Judge Richard L. Nygaard wrote on behalf of the panel. Nygaard rejected Pennsylvania’s argument that it would be impossible to replicate the process it affords in-state offenders for out-of-state offenders. In “this digital age court records, transcripts, hearing records and pre-sentence reports can be transmitted interstate electronically,” Nygaard wrote. Nygaard also said Pennsylvania, as a signatory to the Interstate Compact Concerning Parole and Probation, has promised that out-of-state parolees will be afforded “the same standards that prevail for its own probationers and parolees.” Plaintiff “John Doe” was arrested in New Jersey in August 1999 on charges of molesting an 11-year-old girl. He pleaded guilty 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 apparently was the result of an intoxicated condition on the evening of the 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 didn’t 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, if the victim is under age 13, indecent assault is a first-degree misdemeanor and is designated a “sexually violent offense.” Judge Louis H. Pollak of the U.S. District Court for the Eastern District of Pennsylvania 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 the state’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 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. Pollak said the state had failed to address “the factor . . . 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.’ “

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