Writing law is hard. People keep arguing that it shouldn’t be, but that’s because they fail to appreciate that laws intended to be used one way invariably find themselves used in conflicting, unintended ways, because somebody didn’t consider alternative factual scenarios, or shrugged off a variation that would make the law impossible to write.

That would never happen, they tell themselves. It’s implausible, they tell their colleagues.  Opponents just want to sink a law that’s critical to saving society, they tell the media.  But eventually, reality bites them in the ass and the implausible scenario happens. Oopsie.  We never meant for that to happen, which brings little comfort to the poor shmuck burned by inartful law.

There is a relief valve for legislative errors.  It’s called the courts. But then, opening the relief valve, letting out the steam, is a matter of choice.  One can either adhere to the strict language of the statute, proclaiming that it’s not up to a judge to undo the havoc created by the legislature.  The law says so, and foolish and unintended as the law may be, the judge will enforce it.

Or, the judge can see that the legislature failed to take into account a situation where the law is irrational, clearly contrary to what anybody thought would happen when enacted, and say, “I refuse to be a mindless robot, to apply a law in a way that was never, that could never, have been intended. I will not be complicit in harming someone because some lawmaker screwed up and failed to account for the ‘implausible’ situation.”

Nebraska Senior District Court Judge Richard G. Kopf refused to do harm.

[I]f A.W. had done exactly what he did in Minnesota but performed that act in Nebraska, he would not have been required to register as a sex offender and he would not be stigmatized as such. It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska.

A.W. is a boy, now 13 years of age.  When he was 11, he did something that landed him in Minnesota juvenile court, charged with Criminal Sexual Conduct in the First Degree.  He was declared delinquent and was placed on two years probation.  He was also required to comply with Minnesota’s predatory offender registration.

Except A.W. didn’t live in Minnesota. He lived in Nebraska, and immediately sought to transfer his probation to Nebraska, which is how these things are usually done. The problem was that while Minnesota, in its brilliance, puts little boys on its sex offender registry, Nebraska didn’t.  Before you get too teary-eyed about Nebraska’s enlightened attitude toward its sex offender registry, this was one bright spot in an otherwise absurdly dim law.*

When A.W. returned to his home in Nebraska, under probation supervision, he learned of one weird trick.  While he wouldn’t have been placed on the sex offender registry had he been declared delinquent in Nebraska, the fact that he was declared delinquent in Minnesota changed everything.  You see, Nebraska’s enlightened view against putting children on the sex offender registry didn’t follow through to children placed on it elsewhere.

Also part of Nebraska’s sex offender regime was that it didn’t want to be the state where sex offenders came to avoid being on the registry elsewhere, so it included in the law a requirement that anyone on a sex offender registry in another state would be placed on the registry in Nebraska. Those Nebraska legislators were crafty. They weren’t going to let those nasty sex offenders flock to Lincoln, eat in their stylish Nebraska restaurants and get their sex offenderish germs all over the flatware, with impunity. So there.

Except nobody considered that a child adjudicated delinquent in a less enlightened state lived in Nebraska, and while his adjudication (not a conviction, not a sentence, but a juvenile adjudication) wouldn’t have landed him on the sex offender registry had it happened in Nebraska, it would because it happened in Minnesota.  Who woulda thunk?

Seizing upon the language of the statute, requiring conviction and sentence, Judge Kopf noted the irrational inconsistency of the Nebraska law, and refused to play along.  And to add sanity, he noted that placement on the sex offender registry, despite the legislative pretense that it’s no big thing, is punitive, as everyone knows it is.

Maybe Judge Kopf isn’t such a mean-ass judge after all. But clearly, he exercised his authority to save a child from the absurdity of a gap in the law that would have needlessly ruined a kid’s life.  And for those who doubt the existence of karma, it came back to him the next day, when the United States Supreme Court affirmed his decision in Nebraska v. Parker.

* Among the other failings of the concept of a sex offender registry, Nebraska’s took a deep dive into mission creep, such that the list of offenses requiring registration went far beyond any cognizable connection to sex offenses. How crazy did it get? Here’s the list so you can see for yourself:

(I) Murder in the first degree pursuant to section 28-303;
(II) Murder in the second degree pursuant to section 28-304;
(III) Manslaughter pursuant to section 28-305;
(IV) Assault in the first degree pursuant to section 28-308;
(V) Assault in the second degree pursuant to section 28-309;
(VI) Assault in the third degree pursuant to section 28-310;
(VII) Stalking pursuant to section 28-311.03;
(VIII) Violation of section 28-311.08 [unlawful intrusion] requiring registration under the act pursuant to subsection (5) of section 28-311.08 [where defendant is 19 or older and victim is younger than 18];
(IX) Kidnapping pursuant to section 28-313;
(X) False imprisonment pursuant to section 28-314 or 28-315;
(XI) Sexual abuse of an inmate or parolee in the first degree pursuant to section 28-322.02;
(XII) Sexual abuse of an inmate or parolee in the second degree pursuant to section 28-322.03;
(XIII) Sexual abuse of a protected individual pursuant to section 28-322.04;
(XIV) Incest pursuant to section 28-703;
(XV) Child abuse pursuant to subdivision (1)(d) or (e) of section 28-707;
(XVI) Enticement by electronic communication device pursuant to section 28-833; or
(XVII) Attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit an offense listed in subdivisions (1)(b)(i)(A)(I) through (1)(b)(i)(A)(XVI) of this section.

H/T Jacob Sullum at Reason