ACLU of NV Wins Permanent Injunction Against Retroactive Enforcement of New Sex Offender Laws
On September 10, 2008, the ACLU of Nevada won a permanent injunction against the retroactive enforcement of A.B. 579 and S.B. 471, Nevada's new sex offender laws. Judge Mahan held that the retroactive application of the laws violated the U.S. Constitution, including the Due Process and Ex Post Facto clauses, making clear that the Constitution applies to all.
The new laws, contained in SB471 and AB579, would have drastically changed how Nevada deals with sex offenders. Regardless of whether their crimes even involved children, sex offenders who committed even misdemeanors with any sexual element since July 1, 1956 would have fallen within the purview of registration and some notification provisions. For example, someone caught masturbating in their truck in 1956 could suddenly be classified as a dangerous sex offender subject to registration and notification. One of the ACLU's clients, a grandfather and solid member of his community, was about to be treated like a dangerous pedophile for committing statutory rape at age 17 back in 1960.
Many, many such rehabilitated, low risk offenders whom the state of Nevada has already determined to be unlikely to re-offend would have retroactively become Tier 3 – "high risk" – offenders based solely on the crime committed. Those offenders would also have been subject to widespread community notification, which in turn would have meant that they and their families faced social ostracism, losing their jobs, and even possible vigilante violence. Further, Parole and Probation was also imposing severe movement and residency restrictions retroactively on some offenders, which meant some people would have had to move and sell their homes.
The ACLU does not in any way oppose tough sex offender laws. In fact, by drawing attention away from offenders who are a known high risk – some of whom would have been reclassified as low risk offenders – SB471 and AB579's changes would have jeopardized public safety. In addition, by retroactively imposing terms on offenders who were known to be low risk and giving people no means to challenge the laws even if they were misapplied, the laws would have violated numerous constitutional provisions. Further, the laws are so confusing that the Attorney General's office itself has repeatedly changed its position on the laws. Nobody seemed to understand what they mean and how they were supposed to be applied.
This case was not about "the rights of sex offenders," but instead about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was very concerned that if the Nevada legislature were allowed to impose laws retroactively in this context, it would pass other laws that take effect retroactively and violate the Constitution.
You can read the Court's permanent injunciton order here.
The ACLU of Nevada cannot provide any individual advice or other assistance regarding the sex offender laws, and the information in this post does not constitute legal advice of any kind. If you have any questions about whether any sex offender registration or other laws apply to you, please contact an attorney.
