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Hawaii’s version of “Megan’s Law” — a statute requiring convicted sex offenders to register with local law enforcement authorities — violates state constitutional guarantees of procedural due process, the Hawaii Supreme Court held Nov. 21. State v. Bani, No. 22196. The court said the law’s registration requirement alone did not impose on any protected liberty interests, but found the state could not disseminate registration information to the public without providing the offender an opportunity to argue that public notification was unnecessary or that limited notification would be more appropriate. Aside from damage to his reputation, the offender also risked erroneous deprivation of tangible interests, the court said. Writing for the panel, Justice Mario R. Ramil said the stigma of being known as a sex offender could impact a person’s employment opportunities and housing choices, as well as expose him to vigilantism. Eto Bani, who pleaded no contest to a misdemeanor fourth-degree sexual assault after twice grabbing a 17-year-old girl by the buttocks while he was drunk, challenged the law. He was sentenced to one year’s probation, subject to special conditions of two days’ incarceration with credit for time served, an alcohol use assessment, a $300 fine and a $50 contribution to a criminal injuries fund. Because the current version of the law does not distinguish between levels of sex-based offenses, all sex offenders are subject to the same lifelong reporting and dissemination provisions. Under the law, at sentencing, the trial judge notifies a defendant of his duty to register. Later, the attorney general’s office administers the public notification component of the law, which provides for public access to such information at designated police stations and via an Internet Web site. But, as a result of the court’s declaration that the notification provision was void and unenforceable, public access has now been discontinued, said Liane Moriyama, administrator of the Hawaii Criminal Justice Data Center. Alexa D. M. Fujise, who prosecuted the case, said it was not clear yet how the state will proceed with regard to Bani or any other sex offender. Because the court left the registration component of the statute intact, she speculated that judges would continue to notify defendants of their duty to register. Both she and Moriyama said it was their understanding that the state could continue to collect such information and use it, as long as it was not released to the public. According to Fujise, the attorney general’s office is working on a proposal to submit to the legislature, whose upcoming session begins in January. An amended notification provision might give the prosecutor discretion to pursue public access, with a subsequent hearing in front of an administrative officer or sentencing judge, Fujise said. Asked about the possibility that the hearings would be rubber-stamp formalities, deputy public defender Robert T. Nakatsuji, who represented Bani, said that clear guidelines could prevent that. “Our office testifies in front of the legislature every year,” he said. “So far, our suggestions have not been followed.”

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