Fairness of additions to sex registry questioned
Toolbox
By DAVE GRAM The Associated Press - Published: July 4, 2009
MONTPELIER — Some Vermont sex offenders who thought they had paid their debt to society years ago are expected soon to face a new one — inclusion on the state's online sex offender registry.
A law passed this year expands from about 400 to about 1,600 the number of people included in the registry available for public viewing. Some 740 of the newly listed people will have already completed their terms of probation and parole.
The change is raising questions about whether it's fair for the state effectively to change the terms of a plea deal a criminal defendant entered into years before Vermont considered creating such a registry.
"The individuals aren't getting the benefit of the bargain that they entered into years ago," said Defender General Matthew Valerio, whose office represents defendants in criminal cases.
"Some of these folks have not had recent contact with the DOC (Department of Corrections) but are subject to an electronic registry that didn't even exist at the time," Valerio said.
Georgia Cumming, director of sex offender treatment programs for the department, said some crimes for which people will be placed on the registry likely date from the 1980s. She could not provide exact dates.
Both Valerio and Allen Gilbert, director of the Vermont office of the American Civil Liberties Union, acknowledged that courts in other states and the U.S. Supreme Court have ruled that inclusion on a sex offender registry isn't considered punishment and therefore doesn't violate the constitutional ban on changing the punishment after the crime.
Rather, registries are considered a public-safety tool that enables members of the public to know when a person with a sex-crimes record moves into the neighborhood.
"The courts long ago determined that being on a sex offender registry is not necessarily punishment, and I don't see it as that," said Sen. Richard Sears, D-Bennington. Sears chairs the Judiciary Committee in the Vermont Senate, which wrote two broad new sex-offender bills passed during the recent legislative session.
Sears said the new law has a provision allowing those soon to be included on the registry to petition for waivers.
Lisa Menard, deputy Corrections commissioner, said nearly one-fifth of the 740 people who are no longer under her department's supervision but are eligible for inclusion had asked for the paperwork by Thursday, the second day the law was in effect. She expects the number to grow by Oct. 1, when the expanded registry is set to "go live" online.
Both Sears and Gilbert said they expect the fairness issue to end up in court. Gilbert said the legal question likely would be not whether the constitutional ban on ex post facto punishments was being violated, but whether the state was violating contracts struck in plea agreements. He said more than 90 percent of sex-crime cases are resolved by plea agreement.
"Each side is supposed to honor the terms of a contract," Gilbert said.
Sears said he wasn't worried about a lawsuit. He said "54,000 Vermonters signed petitions asking for this kind of public policy. I think the Legislature responded to that cry."
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