Nebraska High court rejects challenges to sex offender law

7-27-2012 Nebraska:

The Nebraska Supreme Court has rejected appeals by two sex offenders who said that changes by the Legislature to the Sex Offender Registration Act in 2009 violated their rights under the U.S. and Nebraska constitutions.

The court ruled Friday in cases involving Doe-1, who was convicted in Buffalo County of attempted first-degree sexual assault in 1995, and Doe-2, who was convicted in Sheridan County of sexual assault of a child and third degree sexual assault in 2001.

Before 2009, only the names of sex offenders deemed by the State Patrol as most likely to re-offend were publicized on the Internet. Those who had committed minor offenses and were considered at low risk of re-offending -- know as Level 1 offenders -- were required to register with law enforcement agencies, but their information wasn't made public.

But Nebraska lawmakers passed a bill (LB285) that included Level 1 offenders in new reporting requirements. The state posted their photos and addresses on a website. The photos are to stay for as long as 25 years, and in some cases, for life.

The Sex Offender Registration Act (SORA) had not been enacted when Gaskill was convicted, but because he was still on probation when it was enacted in 1997, he was subject to the law. After the 2009 changes, Gaskill was required to register for life as a sex offender.

Gaskill and his family, who were living in Lincoln at the time, were then told by their landlord that they were being evicted because he was on the SORA website. Gaskill had not previously been listed on the sex offender website because he was determined to be at low risk to re-offend.

The family later was asked to leave an extended-stay hotel where they were staying while they searched for a new home -- again because of his listing on the website.

On April 9, they were informed that they could no longer stay at the extended-stay hotel because Gaskill was listed on the sex offender registry, and they were given 1 hour to leave. They stayed at another hotel on the night of April 9, and on April 10, they moved into a new residence.

After deputies went to Gaskill's old apartment for a routine check and found the family no longer there, he was arrested for failing to update his registration.

Harris had to register as a sex offender for 10 years after his release from prison in 2003.

In 2009, Harris began to register as what is commonly referred to as a “transient” because he was frequently on the road either for his job as a truck driver or for his work providing sound, light and tour support for national bands. He was required to update his sex offender registration every 30 days.

Harris failed to update his registration in May 2010 because his truck broke down in Iowa and when he returned to Lincoln, he had to leave almost immediately on another trip. He later was charged and found guilty of failing to update his registration.

Both men raised so-called "ex post facto" challenges to SORA -- saying the law imposed retroactive and additional punishment for their prior convictions.

In Friday's rulings, Judge Lindsey Miller-Lerman used Harris' case to lay the foundation for rejecting the appeals.

SORA, she said, "does not punish behavior that occurred before the statute’s enactment. Instead, it operates prospectively to punish violations of SORA requirements occurring after its enactment."

The law "is not additional punishment for the crimes that resulted in a person’s being subject to SORA; instead, it punishes the act of failing to comply with SORA once a person is subject to its requirements," Miller-Lerman wrote. "Because (it) does not punish an offense that occurred before its enactment, we reject Harris’ ex post facto challenges."

She noted that the retroactive requirements in SORA on people based on their past crimes is a civil sanction, not a criminal punishment, and therefore is legal.

The high court also rejected other challenges by Gaskill and Harris, including one that alleged that SORA violated their right to due process by eliminating the individual assessment to determine the level of community notification and by imposing website notification for all registrants.

Omaha lawyer Joshua Weir, who represented both men, said he had not had time to study the rulings. ..Source.. by Kevin O'Hanlon