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New Jersey’s Megan’s Law has survived yet another court challenge now that the 3rd U.S. Circuit Court of Appeals has ruled that the state has the right to post the home addresses of convicted sex offenders on the Internet. The decision in A.A. v. State of New Jersey overturns a lower court’s injunction that limited the state to posting only the offenders’ county of residence on the Internet registry. “Whatever privacy interest the [convicts] have in their home addresses is substantially outweighed by the state’s interest in expanding the reach of its notification to protect additional members of the public,” U.S. Circuit Judge Dolores K. Sloviter wrote. Lawyers for the convicts argued that by placing the information on the Internet, New Jersey was providing it to people who do not have any “particularized need” for such information. But the New Jersey Attorney General’s office argued that the convicts’ argument was flawed because it ignores a “fundamental characteristic of our modern society, that of mobility.” The 3rd Circuit agreed, finding that New Jersey had supported its interest in providing the information via the Internet by citing examples of how it will be used in today’s mobile society. “Consider parents with young children who want to purchase a new home in New Jersey,” Sloviter wrote. “Without the registry, they would not be notified of the presence of convicted sex offenders, even those with a high risk of re-offense, until they had already purchased their new home which may be in the proximity of a registrant’s home,” Sloviter wrote. Under the original notification system, Sloviter noted, parents had “no ability to obtain this information.” Likewise, a family planning a vacation at the New Jersey shore would have no opportunity to obtain information about convicted sex offenders living in the area without the listing of geographic information on the registry. New Jersey was the first state to pass a Megan’s Law, named for the 1994 case in which 7-year-old Megan Kanka was abducted, raped, and murdered near her New Jersey home by a neighbor who had previously been convicted of sex offenses against young girls. Congress later passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which conditions certain federal funds for law enforcement on the states’ adoption of a Megan’s Law. By 1996, every state, the District of Columbia, and the federal government had passed a Megan’s Law. While the laws vary from state to state, they generally require convicted sex offenders to register with law enforcement officials, who then notify community members of the registrants’ whereabouts. New Jersey’s Megan’s Law has faced legal challenges at every step of the way. In 1996, the 3rd Circuit upheld the registration provisions of New Jersey’s Megan’s Law, rejecting arguments that the law violated the ex post facto and double jeopardy clauses of the constitution. Just one year later, the 3rd Circuit rejected similar challenges to the law’s notification requirements. In 1999, the 3rd Circuit rejected claims that the notification requirements violated the privacy rights of the convicts. The New Jersey Supreme Court also upheld the constitutionality of the original Megan’s Law, but conditioned its enforcement on the implementation of certain safeguards. Specifically, the court construed the notification provisions to require a “likely to encounter” standard based on geography and required the state to provide offenders with notice of their proposed scope of notification and an opportunity for judicial review before the notification was undertaken. In response to the state Supreme Court decision, New Jersey’s voters approved a referendum in November 2000 that amended to the state constitution to authorize the legislature to enact new statutory provisions permitting the disclosure of sex offender registry information to the general public. The New Jersey Legislature later passed a statute authorizing the creation of an Internet registry that contains information about certain high- and moderate-risk sex offenders. The latest federal suit focused on the Internet registry, challenging the constitutional amendment authorizing the creation of the registry and the registry itself. In the suit, convicts claimed that the registry violated their rights under the ex post facto and double jeopardy clauses as well as their constitutional right to privacy in their home addresses. U.S. District Judge Joseph E. Irenas of the District of New Jersey rejected the ex post facto and double jeopardy arguments, but found that the convicts had established a reasonable likelihood of success on the merits of their privacy claim as to their home addresses. Both sides appealed to the 3rd Circuit, but the case was put on hold when the U.S. Supreme Court agreed to hear a challenge to an Alaska law that established a similar Internet registry for sex offenders. The Supreme Court later upheld the Alaska law, finding that the Internet registry was not punitive and that its retroactive application did not violate the ex post facto clause. The New Jersey convicts concede that the Supreme Court’s decision in Smith v. Doe effectively disposes of their ex post facto and double jeopardy claims. As a result, the 3rd Circuit appeal proceeded only on their privacy claims. Lawyers for the convicts argued that “well-established precedent” in the 3rd Circuit supported their argument that there is a constitutionally protected privacy interest in the confidentiality of their home addresses. Sloviter disagreed, saying the court has so far held only that “there is some ‘nontrivial interest’ in one’s home address.” In those same cases, Sloviter noted, “we concluded that the state’s interest in informing the public about the location of prior sex offenders and preventing sex offenses was compelling.” As a result, Sloviter concluded that “it is clear that a [convict's] right to privacy in his or her home address gives way to the state’s compelling interest to prevent sex offenses.” Sloviter’s opinion was joined by 3rd Circuit Judge Marjorie O. Rendell and visiting Senior U.S. District Judge James F. McClure Jr. of the Middle District of Pennsylvania. Attorney Edward L. Barocas of the American Civil Liberties Union of New Jersey argued the appeal for the convicts and was joined on the brief by attorneys Peter A. Garcia, Michael Z. Buncher and Brian Neff of the New Jersey Office of Public Defender. Assistant Attorney General B. Stephan Finkel argued the case for the state and was joined Acting Attorney General Peter C. Harvey, Deputy Attorneys General Rhonda S. Berliner-Gold and Victoria L. Kuhn and Assistant Attorney General Nancy Kaplen.

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