New Jersey’s Megan’s Law: Has it Successfully Expedited the Decline of Sexual Crimes?

In response to the brutal rape and murder of seven-year-old Megan Kanka by a twice-convicted sex offender, the New Jersey legislature quickly enacted 11 bills designed to combat sexual predators, which became collectively known as Megan’s Law. Megan’s mother, Maureen Kanka, believed that every citizen living in New Jersey had a right to know whether or not there was a sex offender living within their community that they would be likely to encounter. In order for this right to be realized, Mrs. Kanka led the drive to enact a community notification bill. While the law has undoubtedly served to increase public awareness about the dangers posed by sex offenders, Megan’s Law (as initially enacted) contained several shortcomings, primarily due to its hasty passage. As it turns out, this expedited method of enacting Megan’s Law precluded its effective enforcement during the first three years, primarily due to numerous court-imposed changes in the original legislation. Furthermore, while Megan’s Law may successfully achieve the goals of incapacitating and registering sex offenders, it should have devoted more resources toward treating sex offenders in order to ensure their successful reintegration into the community. Despite these shortcomings, Megan’s Law was a valiant attempt on the part of New Jersey’s legislators to quickly respond to a horrific event under a plethora of pressure from the State’s active citizenry. Thus, while in many ways this revolutionary legislation can be seen as a monumental achievement, the New Jersey legislature should continue to look for ways to refine it in order to improve its implementation and better protect the welfare of New Jersey’s citizens.

The centerpiece of New Jersey’s Megan’s Law was the community notification provision. This section provided for community notification when a sex offender is released from prison or moves into a new community (Koch 4). This provision promulgated that all sex offenders should be classified into three distinct tiers, based on their perceived risk of re-offense. While the law left it up to the Attorney General to create more detailed implementation guidelines, it did lay out a broad description of this three-tiered system. For low-risk Tier I offenders, notification would be limited to law enforcement agencies likely to encounter the offender. For moderate-risk Tier II offenders, notification would also be extended to certain community organizations, such as schools. For high-risk Tier III offenders, notification would be “designed to reach members of the public likely to encounter the person registered” (Koch 7). This section also specified that after the Attorney General had promulgated specific classification guidelines, the actual risk assessment and implementation would be left up to the 21 individual county prosecutors.

 The assumption underlying this provision was primarily the one expressed so adamantly by Mrs. Kanka: that if she had known about Timmendequas’ past criminal history, Megan would still be alive today. “The commonly cited goal of these statutes is to increase the public’s ability to protect itself by warning potential victims if a convicted sex offender lives nearby” (Levenson and Cotter 2). The primary justification for enacting this controversial provision was that it would effectively decrease recidivism by allowing individual members of the community to be more vigilant while supervising their children. Therefore, released sex offenders would find it more difficult to commit further sex crimes once this provision was in place. “A large neighborhood sign counted the days that past without legislative results” (Koch 1). In addition to providing for enhanced safety, the extraordinary public activism after this atrocity served as another incentive for legislators to act quickly. Individual legislators who questioned the law’s legal implications would be branded as pro-sex offenders by their local constituents. However, the legislature had no way to empirically prove that community notification would substantially decrease recidivism, due to the fact New Jersey’s community notification measure was among the first in the Nation. Thus, the assumption behind the law was not that it would guarantee the safety of all of New Jersey’s children, but rather that it would undoubtedly at least aid in saving the lives of a few children. As acknowledged by Governor Whitman, even if only a single child were saved as a result of the legislature’s deliberations, it would have certainly been worth the effort (Koch 4).

The other key provision of New Jersey’s Megan’s Law required all convicted sex offenders to register with local law enforcement (Megan’s Law). Registered sex offenders were required to verify their address every 90 days, and report any change of address at least ten days prior to relocating. After 15 years, if a registered sex offender could offer evidence to the Superior Court that he no longer poses a threat to society, then the court may decide to relieve him of any further registration obligations. The law specified that registration would consist of the offender’s description, picture, address, offense, and place of employment (Koch 6). 

Once again, the primary justification for enacting this provision was that it would serve to reduce recidivism rates. “Many maintain that the establishment of a registry gives police the perfect tool to monitor a class of criminals for which there is a widespread fear of repeat offenses” (Loberfeld 2). In formulating this provision, the underlying assumption on behalf of the legislature must have been that sex offenders have relatively high recidivism rates. If the bill’s primary sponsors did not assume this from the beginning, then it is unlikely that they would have attempted to formulate a law intended to decrease recidivism rates when they were already low. The other assumption behind this provision was that creating a medium of information, which would be easily accessible by all law enforcement personnel, would facilitate the job of law enforcement officers in alerting the public to potential dangers within their community. Thus, at least from the perspective of Maureen Kanka and the New Jersey legislature, registration and community notification were designed to go hand-in-hand (Koch 5). 

 In addition to making the public more vigilant, another strength of Megan’s Law is that it greatly increased the State’s ability to both incapacitate and supervise convicted sex offenders. The law accomplished this in two ways: mandating increased terms of imprisonment for sexually violent predators, and creating a sentence of community supervision for life for offenders exhibiting a pattern of compulsive behavior (Koch 4). Thus, while some sex offenders who maintain a clean record after serving their sentences may be excused from registration requirements after 15 years, those who demonstrate a pattern of compulsive behavior will be required to register for life. While critics may argue that Megan’s Law is not nearly flexible enough to take into account individual circumstances, it does at least contain a mechanism whereby less dangerous offenders can petition to end their supervision. Furthermore, the increased terms of imprisonment have lengthened the period of time during which it is impossible for an individual offender to recidivate. Due to the fact that locking all sex offenders up for life to prevent them from re-offending would in all likelihood be condemned by the courts, moderately increasing sentences serves as a satisfactory alternative.

One more positive aspect of New Jersey’s Megan’s Law is that the community notification provision was narrowly-tailored in order to accomplish the State’s duty to provide for the safety of its citizens. Despite its hasty action, the legislature certainly did not arbitrarily decide to group all sex offenders together into a single category. The result of this three-tiered system has been to minimize the number of offenders who are actually subject to broad notification within their neighborhoods. In fact, as of 2006 only 210 sex offenders have been given a final classification under Tier III, which is far less than the number of sex offenders who have been placed under the first two tiers (The Examiner). Thus, the New Jersey Legislature spent a sufficient amount of time and effort in carefully formulating this classification system, in order to ensure that the result of its deliberations would not be a completely open notification system in which anyone would be able to obtain the information. “The Notice recipient should understand that he and any other person in the household with whom the recipient shares the information must comply with the applicable Rules of Conduct” (Attorney General’s Guidelines). As further evidence that this system was not designed as an extrajudicial form of punishment for sex offenders, the legislature in conjunction with the Attorney General’s guidelines required residents or organizations receiving a Megan Law notification to sign a receipt form, acknowledging that they will subject to criminal penalties if they disseminate the information contained in the flyer. While by no means is this a perfect system of preventing sex offenders from being subject to threats and harassment by the general public, the legislature did put forth a serious effort to restrict the scope of these community notifications.

On the other hand, a major weakness of Megan’s Law is that it does a poor job of taking into account the nature of sex offenders. This legislation presumes that convicted sex offenders recidivate in great numbers. However, recent studies have shown that this is far from the truth. “The Bureau of Justice Statistics found that of 9,691 sex offenders released from prison in 1994 5.3% were rearrested for a new sex crime within the 3-year follow-up period” (Levenson and D’Amora 176). While 5.3% is by no means an acceptable recidivism rate when the lives of young children are at stake, this rate is significantly lower than the supporters of Megan’s Law would have us believe. In fact, compared to offenders who commit burglary, auto theft, and drunk driving, sex offenders are less likely to be rearrested for the same offense (Levenson and D’Amora 178). Due to the fact that recidivism rates among sex offenders are relatively low to begin with, if the primary aim of Megan’s Law is to substantially reduce this rate even further, it will likely be viewed as unsuccessful. It is extremely difficult to empirically show a tangible decrease in recidivism rates when the base rates are already low. For example, a study conducted in Washington discovered that 19% of the offenders subjected to notification recidivated while 22% of those who were not recidivated (Levenson and Cotter 4). While this research appears to show a slight correlation between community notification provisions and an offender’s probability of re-offense, this decrease does not constitute a statistically significant difference.

Furthermore, the community notification and registration provisions are driven by the misconception that the majority of sex crimes are committed by strangers. In reality, the great majority of sex crimes are perpetrated by someone who is known to the victim. For example, only 7% of the offenders who committed sex crimes against child victims were unknown to the victim (Levenson and D’Amora 178). This fact alone greatly restricts the effective implementation of the community notification provision to those few extraordinary cases in which a child is abused by a stranger. Therefore, an unintended effect of this provision may be to dissuade those victimized by family members to report incidents of sexual abuse.

Another weakness of Megan’s Law is that its emphasis on punishing sex offenders through increased terms of imprisonment may not effectively serve to decrease recidivism. Contrary to popular belief, mandating more punitive sentences is not always a successful method to deter future criminals. “It also appears that as the length of time living in the community offense free increases, recidivism decreases” (Levenson and D’Amora 189). Despite the punitive one-size-fits-all approach to fighting crime articulated by conservatives, a policy of increasing terms of imprisonment is not well adapted to combating the conditions which cause sex offenders to recidivate. Imposing numerous obstacles in the way of low-risk offenders after they have already served their time, only serves to hinder their potential for successful reintegration into the local community. Low-risk offenders who are unable to find employment, housing, and social support in the community as a result of the stigma attached to registered sex offenders, are significantly more likely to recidivate than those who have returned to their normal lives (Levenson and D’Amora 189). Furthermore, another element of sex offender recidivism which has been overlooked by conservatives is the question of treatment: can all sex offenders be treated, and if not, is it possible to single out groups of offenders that will respond to treatment? While it is not practical or financially possible to treat each and every offender, research has shown decreases in recidivism rates for many offenders who do successfully complete treatment programs. For example, sex offenders in Kentucky who had participated in a prison treatment program had a sexual recidivism rate of 3.4%, compared to a rate of 8.7% for those who did not undergo treatment (LaFond 77). Despite the potential success of these sexual offender treatment programs, New Jersey’s Megan’s Law failed to mention them. In fact, only about 14% of imprisoned sex offenders nationwide are actually enrolled in treatment programs (LaFond 62). While legislators may argue that the cost of implementing these programs is excruciating high, there is an even greater cost of failing to implement at least rudimentary sex offender treatment programs: increased recidivism rates leading to the loss of children’s lives. 

There are only two courses of action that the legislature can pursue in order to substantially decrease recidivism rates in absolute terms. The first, which is politically and legally unattainable at the current time, is to mandate life imprisonment for all convicted sex offenders. Due to the fact that this is not the current policy for dealing with convicted sex offenders, the reality is that the great majority of these offenders will be released back into the community at some point in their lives. If in-prison treatment programs are not established soon, these offenders will have a difficult time reintegrating themselves into the community after their release. While the question of treating sex offenders was not considered in the text of Megan’s Law, New Jersey has begun an effort in recent years to treat some of the most dangerous offenders at the Adult Diagnostic and Treatment Center in Avenel. Instead of being sent to prison after their conviction, sex offenders judged to be repetitive, compulsive, and amenable to treatment are housed within this facility (Becker 1). A 2003 study conducted by three New Jersey sex treatment professionals found that while 12.7% of men held within the general prison population had been convicted of a subsequent sex offense within 10 years of their release date, only 8.6% of men released from the Avenel facility had been convicted of a second offense (Becker 3). By focusing their resources on the specific nature and individualized needs of sex offenders as opposed to the general prison population, facilities such as Avenel should be expanded and adequately funded in order to more successfully reintegrate sex offenders into the community. It is hard to argue with the fact that if treatment programs were implemented in all of New Jersey’s prisons, at least some sex offenders would be prevented from re-offending. Thus, while these programs do not guarantee success in every instance, they at least have the potential to decrease recidivism rates for the many sex offenders who will soon be released into the community. 

The initial implementation of Megan’s Law was also greatly undermined by numerous court-imposed changes. The primary reason for these changes was that the legislature failed to engage in any serious deliberation concerning the legal rights and obligations of sex offenders. For example, the Speaker of the Assembly decided to bring the bills directly to the Assembly floor, bypassing the usual committee hearing process (Koch 3). Thus, the legislators were not exposed to any testimony by legal experts. While the New Jersey Supreme Court did uphold the two key provisions of Megan’s Law in the case of Doe vs. Poritz, it also provided increased protection for sex offenders. A major shortcoming of the original legislation was that an individual prosecutor’s classification of an offender was not subject to any form of oversight. This extraordinary grant of prosecutorial discretion led to a decentralized classification system within the 21 counties. However, the Court found serious fault with this provision. “Fundamentally, due process requires an opportunity to be heard in a meaningful time and in a meaningful manner” (Doe vs. Poritz). The Court mandated that all offenders classified as Tier II and III had the right to challenge their classifications in a judicial hearing. The right to an adjudicatory hearing was required due to the fact that community notification implicated the privacy and reputation interests of offenders. Furthermore, the Court narrowed the original law by stating that notification for Tier II offenders would only be provided to organizations likely to encounter the offender (Koch 5). 

On the other hand, the Doe Court did uphold the centerpiece of the law from challenges on privacy, equal protection, ex post facto, and double jeopardy grounds. With regard to the most contentious legal issue presented here, the ex post facto question, the Court held that since the law was a purely remedial measure, it did not implicate ex post facto concerns. In other words, a law which is retrospective, as opposed to retroactively punitive, is constitutionally permissible under the existing jurisprudence (Kramer 2). While this principle has become readily accepted among constitutional law judges and experts, the Court took this principle a step further in Doe. The Court states that if a law is intended to be remedial, it is not unconstitutional if its impact is partially punitive (Doe vs. Poritz). Therefore, the test used by the Court in this instance is one of legislative intent, with little or no regard for actual results. Under this new precedent, as long as the legislature can articulate a rational basis for a law besides punishment, then according to the Court’s standard the measure will be upheld. 

While the majority of the courts that have considered the ex post facto issue (including the Doe Court) have upheld retroactive community notification provisions, a substantial number of judges have loudly voiced their dissents. One dissenting voice is that of District Court Judge Politan, who held that Tier II and III notification provisions as retroactively applied violate the Ex Post Facto Clause. “This stated objective, regardless of how innocuously it has been couched by the Legislature, clearly constitutes a traditional element of punishment: deterrence” (Artway vs. Attorney General of New Jersey). Judge Politan acknowledges that while one of the objectives of the legislature was to provide for the safety of New Jersey’s citizens, another was to deter sex offenders from recidivating. According to Politan, a law’s intent and actual effect must be scrutinized in conjunction with one another, in order to effectively determine its punitive nature (Artway vs. Attorney General of New Jersey). While Judge Politan’s judgment was eventually vacated by the 3^rd Circuit Court of Appeals, challenges such as this one filed on behalf on sex offenders forced the State to expend a plethora of time and money. The end result of these legal challenges was that the State would now have to spend even more money in order to implement this unforeseen hearing process. As a measure of how slow the law’s implementation would actually take, four years after the enactment of Megan’s Law, approximately half of New Jersey’s 5,834 sex offenders still had not received a final classification (Koch 10). Thus, if the legislature had instead initially spent more time considering the legal controversies which could arise, it would have been able to implement the law more effectively in a shorter period of time. 

Despite these several weaknesses, overall Megan’s Law has served as an important measure in combating sex crimes. While it may not adequately take into account the nature of sex offenders, the community notification provision has undoubtedly contributed to making the community safer. “The community may aid police in preventing crimes by exercising greater attention and caution with regard to sex offenders living among them” (Loberfeld 2). While the police may always try their best to protect the general public, their relatively low numbers prevent them from patrolling every neighborhood at every moment of the day. Therefore, increased citizen awareness of sex offenders living within their local community may help to decrease the number of sex crimes, even if this result is not empirically shown due to the low base recidivism rates.

While it is possible to make a relatively informed judgment about the merits and effects of Megan’s Law at the current time, the process of evaluating the legislation would be greatly facilitated by more research in the area. For example, while the study conducted by the Bureau of Justice Statistics provides us with the valuable information that sex offender recidivism rates are not as high as commonly believed, the follow-up period was only 3 years (American Psychiatric Association). Given the fact that some sex offenders recidivate after being clean for more than 3 years, the study period used by the Bureau of Justice Statistics needs to be extended to 10 years. In addition to research into sex offender recidivism rates, significantly more research needs to be conducted in the area of sex offender treatment programs. The few studies that have been conducted in this area have shown that properly designed treatment programs do have the potential to facilitate the process of reintegrating sex offenders into the community. “As with the sadistic rapist, short prison terms, probation, parole, and treatment are a waste of time and money, at best only delaying the victimization of other children” (Mullen 45). Mullen states that while many sex offenders do respond to treatment, a small percentage of sex offenders are untreatable. Thus, comprehensive research needs to be conducted in order to definitively determine specific characteristics of individual sex offenders which relate to whether or not treatment will be an effective option for them.

For a law that was pieced together in less than 3 months under immense pressure from the general public, New Jersey’s Megan’s Law can be viewed as relatively successful. On the other hand, several policy changes would serve to facilitate the implementation and effectiveness of the law. First, the State needs to develop better procedures for assessing risk after an offender’s release. It is essential to develop an empirically accurate system for differentiating between sex offenders who do and do not present an actual risk, by removing subjectivity from these risk assessment scales. Under the current system, a punitive-minded prosecutor has the discretion to label a high proportion of sex offenders as Tier III, while a more rehabilitation-oriented prosecutor can similarly refuse to label sex offenders as Tier III. As exemplified by the exercise conducted during our tutorial, people with differing ideological predispositions using the same risk assessment scale can produce disparate scores for the same offender. The State should place more of an emphasis on reintegrating low-risk offenders into the community by removing from them the stigma attached to sex offenders, in order to reduce their chances of re-offense. For example, the State of Minnesota has created a panel of experts to assess sex offenders prior to their release in order to determine if they should be subject to community notification and registration requirements (Human Rights Watch 12). Another suggestion for how to remove this stigma would be to allow certain low-risk sex offenders who have successfully undergone treatment and lived offense-free and stable lives in the community for five years after their release from prison, to petition this panel of experts to release them from registration and notification requirements. Alternative approaches such as these would facilitate the process of reintegrating low-risk sex offenders into their local communities. However, the State should also increase the terms of imprisonment for high-risk offenders identified as unable to respond to treatment. For example, after empirically verified information on whether or not certain offenders will respond to treatment is obtained, the State could impose relatively high mandatory minimum sentences on offenders identified as unable to respond to treatment. Only by using these two measures in conjunction with one another will the State be able to show a tangible reduction in sex offender recidivism rates. “Broad policies targeting all sex offenders and that disregard research on risk, recidivism, and responsivity are akin to the Emporer’s new clothes” (Levenson and D’Amora 192). While community notification works well by informing the previously ignorant public, the effectiveness of Megan’s Law as a whole would be enhanced by incorporating empirically verified information on sex offender treatment and recidivism. Hopefully the New Jersey legislature will expend considerable time and effort in improving the implementation of Megan’s Law in the near future.