By KATHLEEN HOPKINS
Some sex offenders no longer on registry
When a package of bills known as Megan's Law took effect in 1994, some took comfort in the notion that the activities and whereabouts of convicted sex offenders would be forever monitored.
But that isn't necessarily the case in New Jersey, where a provision allows some sex offenders to apply to get off of Megan's Law restrictions if they have kept out of trouble for 15 years.
With the law now almost 16 years old, the first trickle of sex offenders has been making those applications, some with success.
Megan's Law, named for 7-year-old Megan Kanka, a Hamilton girl who was raped and murdered by neighbor Jesse Timmendequas, requires convicted sex offenders, or those found not guilty of sex offenses by reason of insanity, to register their whereabouts with police and be subjected to lifetime parole supervision, known as community supervision for life.
But Megan's Law, which took effect on Oct. 31, 1994, contains provisions for some sex offenders to get out of the registration requirements and lifetime parole supervision if they have been in the community for 15 years without reoffending and can prove they no longer pose a threat. And offenders who were younger than 14 when they committed a sexual offense also can apply to get off of Megan's Law restrictions once they turn 18.
- When the constitution still meant something, it was the laws obligation to find someone guilty, or a danger, not the other way around, where the offender has to prove they are innocent, or not a threat.
To get off of the Megan's Law registry, a sex offender cannot have a conviction for the most serious and violent sexual offenses — aggravated sexual assault and sexual assault, and cannot have committed multiple sexual offenses, explained Michael Buncher, a deputy public defender in New Jersey. Those restrictions don't apply to getting off lifetime parole supervision, but in both cases, the sex offender must prove that he has committed no new crimes in 15 years since getting out of prison or being convicted of the original crime, whichever is later, Buncher said. And, the offender must prove to a Superior Court judge in a closed hearing by clear and convincing evidence that he is not likely to pose a threat to the safety of others, Buncher said.
- Like I said above, this is suppose to be the justice systems job, to find someone guilty beyond a shadow of a doubt, or that they are still a threat. But now it's the reverse!
"That's a difficult burden to meet," Buncher said.
- Of course it is, and the injustice system knows that!
Nonetheless, some sex offenders have been able to meet it, although not in great numbers so far.
The Public Defender's Office has been successful in getting 18 offenders off of the state's Megan's Law registry and two off of lifetime parole supervision, Buncher said. None of the latter reside in Monmouth or Ocean counties, he said. Buncher added there have been 19 unsuccessful attempts by his office to get offenders off of Megan's Law restrictions, and there have been many sex offenders who have inquired and were told they don't qualify.
As of Oct. 4, there were 13,612 sex offenders on the Megan's Law registry in New Jersey, according to State Police. Of those, 762 reside in Monmouth County and 704 reside in Ocean County.
Attorneys Alexander M. Iler and Travis Tormey, whose office is in Red Bank, have been advertising on the Internet for such clients. They said they have helped about a dozen sex offenders get off of Megan's Law restrictions in Monmouth, Ocean, Middlesex, Mercer, Union and Essex counties in the past year, and they have a dozen more such clients with applications in the pipeline. All have been successful, so far, they said.
"We started getting our first calls last September (2009)," Iler said. "It's definitely becoming a steady piece of the business."
The two attorneys said the sex offenders who they have been able to get removed from Megan's Law requirements are not the classic sexual predators. They include a man who years ago flashed a school bus when he was drunk, and those who as young men unknowingly had consensual sex with underaged girls.
"These are the guys who did something stupid when they were younger or drunk," Tormey said. "The really bad ones are statutorily barred. And for the ones who are eligible, there are all these hoops to jump through."
Iler said, "Almost all the guys we have gotten off have led law-abiding lives, gotten married and had children."
In Toms River, criminal defense attorney S. Karl Mohel said none of the handful of sex offenders he has been able to get off of Megan's Law in Ocean County has reoffended.
"They are not Jesse Timmendequas," Mohel said. "They are people who do something stupid without the proper forethought. People make mistakes."
To get an offender off Megan's Law, an attorney must file a motion with the Superior Court judge who hears Megan's Law matters in the county where the offender resides. The prosecutor's office in that county can oppose the application. The judge can require a hearing, which is closed to the public.
Monmouth County Assignment Judge Lawrence M. Lawson, who is the county's Megan's Law judge and is the statewide coordinator for Megan's Law, said in order for him to remove someone from the registry and lifetime parole, he must be convinced the person does not pose a risk, and that often entails taking testimony from a psychologist who has evaluated the offender. Prosecutors also may present their own experts.
The psychologists use scales that take into account a variety of things in determining the offender's risk of another crime, including the nature of the crime and degree of force used, age of the victim and how that person came to know the offender, the number of offenses committed, whether the offender has undergone treatment, whether substance abuse problems have been resolved, and the offender's age and lifestyle.
One of the key factors is the length of time an offender has gone without committing another offense, said Timothy Foley, a Camden-based psychologist who has evaluated sex offenders for both the Public Defender's Office and the state Attorney General's Office.
Maureen Kanka, Megan's mother, said she is distressed by the provisions in the law named for her daughter that enable some offenders to be freed from its requirements.
"They should be on it for the rest of their lives," Kanka said. "They cannot be rehabilitated."
- Yes they can!
Foley said that is a misconception. Research has shown that if a sex offender goes for 10 years without reoffending, he poses a negligible risk, the psychologist said. Studies also have shown that only 1 in 10 convicted sex offenders will be charged with and convicted of another crime after five years, and if they are, the offense is more likely to be nonsexual, he said.
"There are a small number who do it repetitively," he said.
But Kanka said there is a difference between committing an offense and being convicted of one.
"People can offend and not get caught," she said.
Lawson said before he makes his decisions on the applications, he takes into account the totality of the person and their crime, including whether a plea bargain to a lesser offense was offered to spare the victim the trauma of testifying at a trial. A sex offender who is categorized as Tier 3, or high risk, would not be considered for removal from Megan's Law, he said.
"I'm very cautious," Lawson said. "I look at how to protect the public."
"I don't give them away easily," he said. "It's not like giving away candy."
Lawson said to date he has entertained no more than 10 such applications, and he has granted seven.
"We haven't had a rush to the floodgates," he said.
In Ocean County, there are one or two motions a month by sex offenders trying to get off Megan's Law, and the Prosecutor's Office opposes most of them, said Assistant Prosecutor William Scharfenberger. About half of the applications have been successful, he said.
"We oppose them all unless our expert tells us otherwise," Scharfenberger said. "You really have to have an individual who has turned their life around and agreed to be a law-abiding person in order to make these applications."
Although the successful applications are few, the impact is profound on the offender.
"We've had clients who were literally weeping with joy, having this reporting requirement taken away from their lives," Iler said.
"To many, they want to get on with their lives without a label," Mohel said. "It's a scarlet letter. They want to go to their graves with a clear record, a clear conscience."