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While holding the door open for broader challenges to sex offender registration statutes, the 9th U.S. Circuit Court of Appeals on Monday struck down Alaska’s version on narrow grounds. The unanimous panel relied on a fact-based analysis to agree with a challenge to Alaska’s law that posting sex offenders’ home and work addresses on the Internet, as well as requiring them to report to police every three months, was an unconstitutional punishment. The impact of the ruling for California and others with similar “Megan’s Law” legislation isn’t clear. Nevertheless, the court sounded the bell that sex-offender notification laws present troubling legal questions. “The issues treated in the Alaska Sex Offender Registration Act we consider here are different only in degree from a host of other issues the citizens of this country regularly face in trying to resolve the inherent tension between safety and freedom that exist in any democracy,” wrote Judge Stephen Reinhardt. He was joined by Judges Dorothy Nelson and Sidney Thomas. However, the court declined to decide the case on due process grounds, opting instead for a decision based on the ex post facto clause. Nevertheless, attorneys for two John Does and one Jane Doe who filed the suit were ecstatic. “It’s been almost seven full years since we started this adventure and we haven’t had anyone listen to us until today,” said Anchorage attorney Darryl Thompson. To determine whether the requirements of the statute violated the ex post facto clause, the court first conducted an analysis of the statute to determine whether it constituted a punishment. Other courts — and the 9th Circuit itself — have conducted similar tests on statutes in other states and found that they do not constitute a punishment. Reinhardt compared the case, Doe v. Otte, 01 C.D.O.S. 2845, to a Kansas Supreme Court case, Kansas v. Myers, 923 P.2d 1024, which struck down a law allowing the broad dissemination of offender information, including in newspapers. “Alaska’s system of posting all sex offenders’ information on the Internet is … likely to have a far greater impact on offenders. Because the Internet is much more accessible to the public than records at police departments, the obloquy and scorn noted in Myers are more certain to result,” Reinhardt wrote. Alaska’s law, which went into effect in 1994, was meant to apply to all convicted sex offenders, whether or not the conviction predated the statute. Thompson said his client, convicted of an incest-related offense, is rehabilitated and has been found to be no danger to the community by the Alaska courts. “He made a mistake. He went on with his life,” Thompson said. “The Alaska statute denied that anyone can get better.” Like the court, Thompson differentiated the Alaska law from other state laws. He was specifically upset that authorities posted home and work addresses on the Internet. “You could see it from Helsinki,” Thompson said. “As soon as it went online I was getting calls every day from people who got evicted or lost their jobs.” The effect of the ruling is likely to be profound in Alaska, but the impact in other states is not clear. California’s practice of allowing access to sex offender databases only through computers at local police stations and over the telephone is more akin to Washington’s sex offender law, which the court upheld in Russell v. Gregoire, 124 F.3d 1079 (1997). “The Washington statute we considered in Russell authorizes release of information only when it has been determined that the specific offender poses a risk of reoffending, and even then, the information disclosed is much more limited than the information Alaska discloses,” Reinhardt wrote. Reinhardt also noted that the requirement that an offender report his or her whereabouts to police every quarter is similar to a de facto probation sentence. “While the Alaska statute may have some deterrent effect, it even more directly serves another traditional aim of punishment — retribution,” he wrote.

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