Arrest raises questions on recent sex offender registry changes

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LEWISTON — The Tuesday arrest of a Mexico man on charges of possessing child pornography drew attention to a 2009 law change that allows convicted sex offenders to petition the state to have their names removed from a public sex-offender registry.

State and local police said Thursday that the arrest of Larry L. Smart, 66, of 53 Roxbury Road, is an example of what they feared could happen once convicted sex offenders were allowed to stop registering with local law enforcement.

Authorities believe Smart is the only person to be charged as a repeat offender after being removed from the registry.

In 1988, he was convicted of gross sexual misconduct in Oxford County Superior Court, a Class A felony involving a child under the age of 14. He was 42 years old at the time of the offense, which occurred in 1985.

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Smart was sentenced to 10 years in prison, serving six years behind bars and six years of probation. He was required to register as a sex offender.

Last year, soon after the law change, he petitioned the state — one of the first offenders to do so — and was removed from the registry in October 2009.

A month after that he was the subject of a joint Maine-Wyoming State Computer Crimes Unit investigation, which culminated in his arrest on Tuesday. He is accused of transporting, purchasing or possessing pornography depicting a child younger than 12 years.

Smart is among 304 people who have been removed from the state’s registry since the change went into effect on Sept. 1, 2009. The requests of another 405 convicted sex offenders have either been denied or are pending, said Matthew Ruel, director of the Maine State Bureau of Identification, the agency tasked with maintaining the registry.

“This Mexico case highlights the concern we’ve had all along,” Deputy Chief Jason Moen of the Auburn Police Department said Thursday. “This is a classic example of what can go wrong when you change laws like that.”

Moen said 15 Auburn residents were removed from the sex offender registry after they petitioned to be removed under the 2009 law change.

“Once they are off, they are off,” Moen said. “We can no longer keep track of them and they are no longer having any contact with us.”

Offenders on the registry have to update their status every 60 days with local police, including notifying police of any address changes.

In Lewiston, an estimated 10 residents have been removed from the registry under the law change, said Lt. Mark Cornelio, that department’s public information officer.

Lawmakers have wrestled with changing the registry since its inception in 1999. This year, they have taken up two bills that would further change the way the registry is used and maintained. Criticism that the registry law amounted to a form of double punishment prompted the 2009 change.

Lawmakers, reacting to concerns raised by the Maine Supreme Judicial Court, instituted the changes, state Sen. Stan Gerzofsky, D-Brunswick, said Thursday.

Gerzofsky said the Legislature is trying to balance the concerns for public safety with the constitutional issues raised by the courts. Finding the right balance hasn’t been easy, he said. Most concerning for the courts were changes to the law that allowed the state to place offenders on the registry who were convicted before it was created.

“The law was supposed to be about public safety, and not punishment,” said Gerzofsky, chairman of the Legislature’s Criminal Justice Committee. Lawmakers were reluctant to loosen eligibilty for removal from the registr,y but failing to change the law could risk a constitutional challenge.

“We were absolutely compelled to change it, if we wanted to keep the registry,” Gerzofsky said. “You have to be respective of the court. We didn’t want to lose the registry; we didn’t want the court to find parts of the registry unconstitutional because we do believe the registry does provide for public safety.”

Those who were convicted between 1982 and 1992, were released from jail before Sept. 1, 1998, and have not re-offended since their release can petition to be removed from the registry.

The process, however, does not involve notifying victims or police. The criteria also don’t consider the degree or seriousness of the underlying conviction that landed a person on the registry in the first place. A person convicted of the most serious violent sex offense, including gross sexual assault, has the same right to petition for removal from the public registry as a person convicted of a lesser sex-related crime.

Also excluded from the right to petition were those convicted of sexual assaults against children or those who had mulitple offenses, Gerzofsky said.

One proposal being considered by the Legislature would expand eligibility for removal from the list by allowing those convicted before the registry was in place in 1999 to petition for removal. This change and others would help address constitutional issues the courts have with the law that created the registry.

Ruel, with the Bureau of Identification and also a Maine State Police trooper, said the law-enforcement community has testified to and requested the law be changed to allow both the public registry and a so-called “silent registry” that would allow police to continue to monitor those removed from the public list.

While their names, addresses, place of work, photos and conviction information would not be available to the public, they would still have to register with local police and keep their information current.

So far, the Legislature hasn’t enacted those changes based on the objections that determining which sex offenders would be more likely to re-offend after they become eligible to come off the registry would be too subjective, Ruel said.

A bill that would have set up a risk-assessment process aimed at determining eligibility for removal from the registry was killed by Gerzofsky’s committee this session. He said the costs associated with the bill in the state’s current budget climate were part of the reason it was spiked. He expects it to be brought up again in 2011.

A committee bill being drafted likely will include a provision for the silent registry, a measure Gerzofsky said he and other lawmakers support.

Under the Maine Supreme Judicial Court ruling, lawmakers and the governor have until March 31 to change the registry law.

sthistle@sunjournal.com

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