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January 23, 2008

Third Circuit strikes down part of Pennsylvania's sex offender notification statute

Thanks to this post at DotD, I see that divided panel of the Third Circuit in Doe v. Pennsylvania Board of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008) (available here), has struck down part of Pennsylvania's sex offender notification statute because its "disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."

A brief scan of the opinions in Doe suggests that Con Law folks ought to be interested in this ruling.  For example, consider this final footnote from the majority's opinion:

An undercurrent to our dissenting colleague’s argument is that under rational basis review, the government always wins.  That, quite simply, cannot be so.  In fact, were that the case, our review of issues under this standard would be equivalent to no review at all. A necessary corollary to and implication of rationality as a test is that there will be situations where proffered reasons are not rational.  That precise situation is graphically presented here. Put simply, every reason proffered by the Commonwealth for its disparate treatment of Doe in this case is meritless, and hence irrational. No reason the Commonwealth offers for disparate treatment can be considered “rational” because each is contrary to the promises it made to the other signatories when it signed-on to the Compact. Indeed, in the several instances, the stated purposes of the Interstate Compact itself contradict what the Commonwealth claims are its reasons for the disparate treatment it gives to in-state and out-of-state offenders.

January 23, 2008 at 05:33 PM | Permalink

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Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false:

"For certain, 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. Indeed, the crime that inspired the first Megan’s Law was committed by a twice-convicted, in-state sexual predator, a fact unknown to his new neighbors. See Paul P. v. Farmer, 27 F.3d 98, 99 (3d Cir. 2000) (citing E.B. v. Verniero, 119 F.3d 1077,
1097 (3d Cir. 1997)."

While it may be true the Kankas did not know, most neighbors did know:

"There is, however, considerable controversy regarding the question of whether the Kanka family may indeed have known that a sex offender (not necessarily Timmendequas, however) lived in the house across the street. Although the Kankas vigorously deny any such knowledge, evidence suggests that the criminal past of at least one of the residents of the house where Timmendequas lived was common knowledge in the neighborhood.

"Timmendequas lived in a house with two other convicted sex offenders with whom he had served time at the Adult Diagnostic & Treatment Center, the state's treatment-oriented correctional facility for sex offenders. One of the other offenders, Joseph Cifelli (who had been convicted of sexually abusing a 5-year-old girl), had lived in the same house as a child, and his past was well known in the community. According to a neighbor who lived on the same block:

"'When I read that in the papers [that neighbors had no knowledge that three sex offenders were living on the block], I was pissed. They all knew what Joey Cifelli did. It was common knowledge. How could those neighbors go to bed at night and sleep and say that they didn’t know that he was a pervert? [1] p. 37'

"Other neighbors also stated that they knew about the three men's pasts, including one neighbor who trimmed back tree branches so she could keep an eye on her granddaughter when she was playing by the men's house. Megan's father, Richard Kanka, also admitted to having heard "vague stories" about the men, but insists that he knew nothing of their pasts. Maureen Kanka has stated she knew nothing of the men's past, but has also asserted that people shouldn't have to rely on "gossip" and "rumors" about possible sex offenders living in the neighborhood, suggesting at least the possibility that she too had heard rumors about at least one of the men's pasts.[2]" (footnotes at the link)

Posted by: George | Jan 23, 2008 10:35:28 PM

Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false

Yes, George, all neighbors always know when a sex offender moves into their neighborhood. Sometimes it's through Google, sometimes gossip, but sometimes it's just through a magical telepathic sex offender information transmission service. It's hard to imagine how judges and legislators could be so stupid as to think otherwise. It's a pity you're not in charge.

Posted by: anonymous | Jan 24, 2008 8:49:44 AM

Ironically, the “true” story of Megan Kanka is open to factual dispute. At the core of supporters’ claims for Megan’s Law was the assumption that Richard and Maureen Kanka were in fact unaware that a sex offender lived nearby. Yet this assumption may not be true. Several of the Kankas’ neighbors stated that they knew a sex offender—albeit, not Timmendequas himself—lived in the house where Megan was killed.246 Moreover, they asserted that Maureen Kanka admitted she knew that this individual lived there.247 The Kankas fervently denied this claim.248 One neighbor was very critical of what he saw as an intentional campaign of denial within the neighborhood:

"When I read that in the papers [that neighbors had no knowledge that
three sex offenders were living on the block], I was pissed. They all knew
what Joey Cifelli did. It was common knowledge. How could those
neighbors go to bed at night and sleep and say that they didn’t know that
he was a pervert?"

("Making the Case for Megan’s Law: A Study in Legislative Rhetoric" by DANIEL M. FILLER, Indiana Law Journal, Vol. 76, No. 2, 2001.)

Posted by: George | Jan 24, 2009 2:58:00 AM

I would like to know how much money Pa gets for sentencing each SVP?

Posted by: Helen | Jul 25, 2009 12:06:56 AM

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