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Case of Rabbi Lewis Brenner


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Table of Contents:

Court To Hear Sex Offender Registry Case (05/20/2002)

People v. Rabbi Lewis Brenner (03/14/1997)

Retroactive Effect Given Megan's Law Fed'l, State Rulings Diverge, Judge Notes (03/14/1997)



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Court To Hear Sex Offender Registry Case - Case Could Affect Oklahoma Law

May 20, 2002

http://www.channeloklahoma.com/okl/news/stories/news-146914120020520-090533.html


WASHINGTON -- The Supreme Court agreed Monday to consider a constitutional challenge to some registries of known sex offenders, the second case the court will hear involving lists meant to keep tabs on potentially dangerous sex criminals.

The court said it will hear an appeal from Connecticut, where a federal judge struck down the state's sex offender registry last year. The judge found that the law violated the constitutional rights of past offenders, because their names were placed on the list without a chance to prove they are no longer dangerous to society.

SEX OFFENDER REGISTRY

Is it unconstitutional? What do you think?

The New York-based 2nd U.S. Circuit Court of Appeals agreed, and the registry is no longer publicly available.

The case could affect more than 20 states, including Oklahoma, with similar laws requiring community notification based on the offender's record rather than an individual evaluation of his or her current likelihood to repeat the crime.

A high court ruling against Connecticut could force states to hold separate hearings for sex criminals to assess whether their names, addresses or other identifying information will be made public.

All states have laws requiring some kind of list of sex criminals, but some provide the public with names of only those offenders deemed dangerous. Still other states have hybrid laws, making the names public in the cases of serious sex crimes, but taking a case-by-case approach when the crime is considered less egregious.

The registry laws are usually called Megan's law, after Megan Kanka, a New Jersey girl raped and killed in 1994 by a neighbor who was a convicted sex offender. Her parents didn't know his history when he moved in across the street.

The registries take conviction records already publicly available through police or court records, and compile them in one place. Information on Connecticut sex offenders is still publicly available on the old piecemeal basis.

The Bush administration backed Connecticut in asking the Supreme Court to step in.

"Megan's laws serve vital government interests by assisting law enforcement and enabling American communities to better protect themselves, and in particular their children," the administration's top Supreme Court lawyer wrote in court papers.

Solicitor General Theodore Olson noted that federal law requires states to have a registry, or face a reduction in federal funding.

Twenty-three states and the District of Columbia also filed a friend-of-the-court brief backing Connecticut.

The Supreme Court will hear the case in the term that begins next fall.

The court will also hear a separate constitutional challenge to laws in about a dozen states that publish names, addresses or other personal information about convicted sex offenders on the Internet. The question in that case is whether such publicly available lists, which include names of people who long ago served their sentences, amount to unconstitutional double punishment for the same crime.

Connecticut's registry was also available over the Internet, but that factor was not the key to the case the high court agreed to hear Monday.

The registry was created in 1998 and operated by state police. Users could search by town for lists of resident sex offenders. It listed the names, addresses and, in most cases, pictures of nearly 2,100 offenders. The Web site received 150,000 hits per month, state police said.

Two anonymous sex offenders sued the state, claiming they are no longer a danger to society and should not be stigmatized. The men claimed the registry violated their constitutional right to fair treatment in the courts by denying them a chance to keep their names off the list.

According to the Justice Department, laws similar to Connecticut's are in force in: Alabama; Delaware; the District of Columbia; Florida; Georgia; Illinois; Indiana; Louisiana; Maryland; Michigan; Mississippi; Missouri; New Mexico; North Carolina; Oklahoma; South Carolina; Tennessee; Texas; Utah; Virginia; West Virginia and Wisconsin.

The case is Connecticut Department of Public Safety v. John Doe, 01-1231

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Retroactive Effect Given Megan's Law Fed'l, State Rulings Diverge, Judge Notes

New York Law Journal - March 14, 1997, Friday

BY CERISSE ANDERSON

http://www.usajewish.com/scripts/usaj/forum/forum.idc?ForumID=24&ArchiveID=121


A BROOKLYN rabbi who pleaded guilty to one felony count of sexual abuse must register as a sex offender under New York's version of Megan's Law even though the criminal act occurred before the law became effective and though he was sentenced to probation instead of jail time, a state judge has ruled.

Ruling yesterday in People v. Lewis Brenner, filed in Supreme Court, Kings County, Criminal Term Part AP F1,Acting Justice Charles J. Heffernan noted, after an extensive review of 15 opinions in 13 cases across the country which have considered whether Megan's Laws should be applied to all offenders retoactively, that "there is a marked divergence of opinion between federal and state courts."

An edited version of the decision will be published Monday.

Justice Heffernan said he agreed with the majority of state judges who have considered the issue that, when applied to Mr. Brenner, New York's Sex Offender Registration Act (SORA) was not punishment, since Mr. Brenner already had felt the sting of community rejection upon his arrest. Thus, he said, the retroactive application of the notification provisions of the law was not unconstitutional as a violation of the ex post facto clause of the U.S. Constitution.

Furthermore, the judge said, the Legislature intended the law to apply to offenders sentenced to probation as well as to those who serve prison time. But, he said, prosecutors had failed to produce evidence that would justify classifying the 65-year-old man as a Level 2 Risk which would require notification to law enforcement agencies and possible announcement to the community of his "approximate" address (based on his zip code) and criminal background.

A Level 1 Risk, a "low" risk of repeat offense, requires notification of his address and background only to law enforcement agencies.

The original Megan's Law requiring notification to law enforcement agencies, and in some cases the public, of a defendant's status as as previously-convicted sex offender was enacted in New Jersey after the molestation and murder of Megan Kanka by a released sex offender whose history was unknown in the neighborhood where he and the child lived. All the remaining states have since enacted child sex offender registration laws.

Shunned in Community

Last year, U.S. District Court Judge Denny Chin in Manhattan found the notification provisions of SORA amounted to punishment and thus were unconstitutional as an ex post facto law and permanently enjoined its retroactive enforcement in Doe v. Pataki, 940 F.Supp. 603 (appeal has

been argued before the Second Circuit and is pending). Justice Heffernan, however, said he was unable to reach the same conclusion for Mr. Brenner.

"While four of the six state courts which have considered the issue have rejected such [retroactivity-related] challenges . . ., decisions in four of the six federal cases on point have espoused a contrary view, either directly or by pointed suggestion. Appeals in two of those cases are now sub judice before the U.S. Court of Appeals for the Second and Third Circuits," the judge noted in his 111-page opinion.

Justice Heffernan said he agreed with the analyses and holdings of the Supreme Courts of New Jersey and Washington State, the U.S. District Court for New Jersey and a state Supreme Court justice in Rochester, N.Y., all of whom rejected the contention that retroactive notification constituted punishment.

After conducting a hearing last October, the judge concluded that Mr. Brenner had been subjected to shunning within his Orthodox Jewish community (he had to resign from the temple he founded and received a letter threatening him unless he stayed off the block where his congregation was located), but "it would appear that defendant has been able to retain considerable stability in

his life with limited exceptions." Justice Heffernan noted that Mr. Brenner had been accepted by another religious congregation despite knowledge of thecharges in the case.

"[Defendant] failed to demonstrate that the effects of any form of community notification, should it be authorized, would be appreciably beyond those which arose without such notification," he said. Thus there was no basis for a finding that the notification "would be an affirmative disability or restraint upon defendant."

Mr. Brenner had been charged with 14 counts of sodomy, sexual abuse and endangering the welfare of a child arising from sexual contact with the same youth whom he allegedly met in the bathroom of the temple they both attended. The sexual contact was alleged to have been committed over a three-year period until October 1995, when the then 15-year-old told authorities.

He agreed to plead guilty to one count of sodomy in the third degree, a Class E felony, in exchange for a sentence of five years' probation.

Mr. Brenner was represented by Marvin E. Schechter. The case was prosecuted for Brooklyn Assistant District Attorney Nancy M. Slater.

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