New sex offender laws could rise out of limbo

By Abigail Goldman

Wednesday, Oct. 8, 2008 | 2 a.m.

Last month the fight over Nevada’s new sex offender laws appeared to have ended. Rulings in three courts indicated the controversial Adam Walsh Act wasn’t going to fly in Nevada. A Sept. 13 newspaper editorial wrote its epitaph under the headline: “Even sex offenders are entitled to protections of the Constitution.”

But the Walsh Act isn’t half-dead.

Here’s why we should care: The Walsh Act would force Nevada to come down much harder on sex offenders. This doesn’t sound bad, until you consider that the law treats people who committed crimes years ago and haven’t committed any offenses since the same way it treats people with recent offenses. Sex offenders who have long since been deemed low risk would find themselves under a slew of new restrictions.

Another factor is cost. The more closely sex offenders are monitored, the more it costs. Law enforcement insiders have said the law could cost the state millions of dollars each year. Among other things, hundreds of low-risk offenders could end up wearing GPS monitors paid for by taxpayers.

Even if you like the Walsh Act, and many do, remember that the state is paying to battle it out in three courts. The legal system is weighing the laws, and we haven’t yet enforced them.

Here’s a look at the three cases, and why the act is still alive:

The Walsh Act creates a new categorization system for future sex offenders and for existing sex offenders charged in the past 52 years.

In federal court, however, U.S. District Judge James Mahan ruled the laws couldn’t be applied retroactively. Mahan’s ruling spared offenders whose crimes have occurred, but he made no ruling on the fate of future offenders. So he left the constitutional question half-answered.

In District Court, Judge David Wall put a preliminary injunction on the Walsh Act while he evaluates it. This means that nobody is being punished according to its regulations, originally set to take effect in July.

This injunction put the American Civil Liberties Union of Nevada in a bind. The organization successfully defended convicted offenders who would be retroactively affected by the act, but it could not defend future offenders. Now the civil liberties organization is in an awkward position, waiting for someone to be penalized by the Walsh Act so the case can be taken to court. This won’t happen until Wall lifts his injunction.

And while all this was going on, Family Court Judge William Voy ruled that one element of the act was arbitrary — making a teenage sex offender subject to adult punishments at age 14. The case went all the way to the Nevada Supreme Court, where it seemed a definitive ruling would emerge. Instead, the court sent the case back on a technicality. The process must begin again.

The Family Court delay puts judges such as Wall and Mahan on hold, because many think the lower courts will wait to see what the Supreme Court does with the case. The case in Voy’s court could set the tone for the other two, as soon as it works its way to the top again.

The court challenges mean the Walsh Act is stuck in a holding pattern. Future offenders could face regulations that would uproot their families, prohibit them from living near parks and schools and put their faces online — provided the act survives in one form or another.

And it might.