November 18, 2007
The Modern Day Scarlet Letter
Sex Offender Registration and Notification Laws (“SORNLs”) have been dubbed the modern day scarlet letter.  Tantamount to public branding in the technology age, SORNLs have secured a permanent place among the state’s measures to protect its citizens from sexual predators. Whether prosecution for statutory rape is based on the intentional act of exploitation of a young child or strict liability, those convicted are subject to SORNLs and the burdensome consequences of such registration in the vast majority of jurisdiction.
Origin of SORNLS, or “Megan’s Law”
SORNLs gained prominence following the tragic circumstances of two children: eleven-year-old Jacob Wetterling, who was abducted at gunpoint and presumed murdered in 1989; and seven-year-old Megan Kanka, who was sexually assaulted and murdered in 1994 by a neighbor who, unbeknownst to Megan’s family, had prior convictions for sexual assault against children. As a result of national attention, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which was included in the Federal 1994 Omnibus Crime Bill, and which required the states to adopt sex offender registration laws within three years of the Act’s passage in order to receive federal law enforcement funding. In what is often termed “Megan’s Law,” community notification statutes were added when Congress amended the Jacob Wetterling Act in 1996.
SORNLs were designed to protect the public’s safety through the release of certain information about sex offenders to public agencies, and, as initially envisioned, were intended to facilitate data banks of sex offenders for law enforcement officials. With the advent of Megan’s Law, the focus on public safety shifted from informing law enforcement agencies to alerting the community to the convicted sex offender’s location. Community notification has been deemed a justifiable intrusion into the registrant’s expectation of privacy because of “the public’s interest in safety.” Currently, all states and the District of Columbia have passed SORNLs.
Critics of SORNLs
Many people believe that sex offenders are one of the nation’s leading social problems and that registration laws are the answer. Registration laws, however, are not without their critics who argue that the laws are ineffective. Specifically, critics argue that the laws are ineffective because they fail to accomplish the goals and purposes surrounding their creation. Critics further argue that the laws actually do more harm than good to both the registered offender and the community as a whole. Critics of registration laws have developed a laundry list of negative effects that registration laws have on the sex offender and the community. Almost every state allows the public access to the state’s sex offender registration database. Many states, as well as the District of Columbia, have established internet websites where the public, from the privacy of their own home, can freely browse through any state’s sex offender registration database. Allowing the public free access to these databases arguably helps to further the purpose of the statute, but the downfalls are numerous. One downfall to allowing the public free access to the sex offender registration database is the possibility of accidental release of victims’ names.
Substantive Due Process & Residency Restrictions
As legislation restricting sex offenders proliferates, it will continue to spawn constitutional challenges. … Key differences exist between residency restrictions and registration-notification laws. Although minor restrictions on where people may live are not fundamental infringements of liberty, when more comprehensive residency restrictions practically bar sex offenders from entire towns, they do infringe liberty so severely that a fundamental interest is implicated and heightened scrutiny if appropriate. Second, courts should consider whom residency restrictions target. The judiciary has a constitutional duty to protect citizens from the “tyranny of the majority” by checking the legislature’s power.
Constitutional Challenges to Megan’s Laws
The United States Supreme Court, the Connecticut Supreme and Appellate Courts have held that it is not a violation of procedural due process to require registration without first conducting an evidentiary hearing on dangerousness. In 2003, the Supreme Court decided the first of what will likely be many challenges to the constitutionality of SORNLs, holding that procedural due process does not require the state to establish a sex offender’s present level of dangerousness prior to placing him on a sex offender registry. See Conn. Dep’t of Pub. Safety v. Doe.
In Conn. Dep’t of Pub. Safety v. Doe, the appellants were Connecticut agencies, and the Commissioners and directors of those agencies responsible for overseeing the Sex Offender Registry. Doe was a Connecticut resident who was required to register because he was convicted of an offense listed in the act, even though his conviction was based on conduct that occurred before the law went into effect.
Doe filed suit in federal court in 1999, alleging a violation under 42 U.S.C. § 1983, asserting that the registration laws were a violation of his Fifth and Fourteenth Amendment Due Process rights and that the registration act constituted an ex post facto law. Doe claimed that the registration law was a violation of his due process rights because it deprived him of a liberty interest – his reputation combined with the alteration of his status under state law – without notice or a meaningful opportunity to be heard. Doe’s basis for the ex post facto claim was that the law subjected him to punishment for conduct committed before the law took effect. Doe sought declaratory and injunctive relief prohibiting Connecticut from enforcing the registration law and prohibiting public disclosure of information contained within the registry.
The district court granted Doe’s motion for summary judgment on the due process issue, but denied the ex post facto claim. The Second Circuit affirmed the district court’s ruling. The Supreme Court granted certiorari to determine the due process issue. The Supreme Court reversed the Second Circuit. The Court held, in a short opinion, that even if an offender could prove beyond all reasonable doubt that he was not dangerous and posed absolutely no threat to the community, it did not matter because Connecticut’s law requires all sex offenders to register, no matter how dangerous they are. Thus, since dangerousness was not a material element to the statute, the offender was not afforded the constitutional procedural protections of notice and an opportunity to be heard. The Court explained that states are not barred by procedural due process requirements in creating registration databases. In addition, the Court stated that the claims must ultimately be analyzed in terms of substantive, not procedure due process. However, the Court declined to rule on a substantive due process challenge to registration laws because the issue was not properly before the Court.
The Court basically said that if Doe had argued the case under substantive due process, he would have won. Justice Ginsburg joined Justice Souter’s concurring opinion, which stated: “I join the Court’s opinion and agree with the observation that today’s holding does not foreclose a claim that Connecticut’s dissemination of registry information is actionable on a substantive due process principle.”
Retroactive Application Megan’s Laws
The constitutionality of SORNLs under the ex post facto clause has spawned a substantial amount of litigation. The ex post facto clause outlaws four distinct types of laws: (1) laws that criminalize an act that was not previously criminal; (2) laws that make the crime greater than it originally was at the time it was committed; (3) laws that raise the punishment attached to the crime; (4) laws that change the rules of evidence allowing for less or different testimony than that which was required at the time the offense was committed.
Sex offenders argue that SORNLs fall under the third category, essentially asserting that these laws create an additional punishment that is inflicted retroactively on sex offenders. The ex post facto doctrine serves three main goals. First, it assures individuals that they will receive fair warning of the boundaries of legal conduct, allowing them to reasonably rely on the legal situation at the time at which they act. Second, it serves as a check on the power of government. More, specifically, it acts to prevent legislatures from imposing vindictive or arbitrary legislation on unpopular groups or individuals. By doing so, it protects the separation of powers between the legislative and judicial branches of government. Finally, the prohibition recognizes an interest in fairness by holding the government to the rules it created.
Ex Post Facto Clause
In a companion case to Connecticut Department of Public of Safety v. Doe, the Supreme Court also delivered it opinion in Smith v. Doe on March 5, 2003. The Supreme Court evaluated the constitutionality of the Alaska Sex Offender Registration Act, which is applied to sex offenders retroactively. The Court concluded that the intent of the Alaska Legislature was to create a civil, non-punitive scheme, and as such did not violate the ex post facto clause of the U.S. Constitution.
Since Megan Kanka’s death in 1994, federal and state versions of the law which bears her name have been challenged; however, it appears that Megan’s Law has survived those challenges, and will continue to remain in effect. Despite this fact, the Supreme Court has seemingly left the door open with regard to attacks on Megan’s Law alleging violation of substantive due process and equal protection.
1. The “scarlet letter” refers to Nathaniel Hawthorne’s novel by the same name, published in 1850, and involves an adulterous relationship between a married woman and a young minister, where upon discovery of the affair, the heroine is forced to wear a scarlet letter around her neck. See Nathaniel Hawthorne, The Scarlet Letter (New York, Fleet Press Corp. 1969) (1850). For an early look at the stigmatizing effect of sex offender registration and notification laws, see Michele L. Earl Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 Nw. U.L. Rev. 788 (1996). See also Daniel Farber & Suzanne Sherry, The Pariah Principle, 13 Const. Comment 257, 282 (1996) (noting that sex offender registration “seems very close to a scarlet [letter]”)
2. See, e.g., 42 U.S.C. § 14071 (2000) (establishing state sex offender registration guidelines).
3. A description of the abduction of Jacob Wetterling and the history and programs of the Jacob Wetterling Foundation are available at http://www.jwf.org.
4. See Smith v. Doe, 538 U.S. 84, 89 (2003) (recounting the tragic killing of Megan Kanka and the genesis of “Megan’s Law”). See also Mission Statement of the Megan Nicole Kanka Foundation, at http://www.megannicolekankafoundation.org.
5. 42 U.S.C. § 14071 (2000) (establishing federal guidelines for state sex offender registration laws).
6. Id. at 14071(g). States that did not comply were faced with decreased funding. See id. at 14071(g)(2)(A) & (B). See also Abril R. Bedarf, Examining Sex Offender Community Notification Law, 83 Cal. L. Rev. 885, 899 (1995).
7. See 42 U.S.C. § 14071(e)(2) (“The designated state law enforcement agency … shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section.”). For a review of the origins of community notification statutes, see Maureen S. Hopbell, Balancing the Protection of Children Against the Protection of Constitutional Rights: The Past, Present & Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004).
8. See 42 U.S.C. § 14071(b)(1) (2000) (“The Attorney General shall establish a national database at the Federal Bureau of Investigation to track the whereabouts and movement of … each person who has been convicted of a criminal offense against a victim who is a minor.”)
9. See, e.g., Smith v. Doe, 538 U.S. 84, 102-03 (2003) (highlighting the nonpunitive purpose of public safety which is advanced by alerting the public to the risk of sex offenders in their community).
10. See Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U.L. Rev. 295, 326 n.151 (2006).
11. See generally Devon B. Adams, U.S. Dep’t of Justice, Summary of State Sex Offender Registries, 2001 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sssor01.pdf. All but five states make their registries accessible to the public over the internet.
See also KlaasKids Foundation, Megan’s Law Legislation in all 50 States, at http://www.klaaskids.org/pg-legmeg.htm (collecting links to state sex offender registries.).
12. Alison M. Siskin & David Teasley, Sex Offender Registration: Issues and Litigation, in Criminal Justice and Law Enforcement Issues 60 (Katherine A. Neumann ed. 2002).
13. Abril R. Bedarf, Examining Sex Offender Community Notification Law, 83 Cal. L. Rev. 885, 899 (1995).
14. See Melissa R. Saad, Civil Commitment and the Sexually Violent Predator, 75 Denv. U.L. Rev. 595, 607-08 (1998); Jenny A. Montana, An Ineffective Weapon in the Fight Against Child Sexual Abuse, 3 J.L. & Pol’y 569, 594 & n.115 (1995).
15. Saad, supra note 14, at 607; Montana, supra note 14, at 577-79 & 591-94.
16. Bureau of Justice Statistics, U.S. Dep’t of Justice, Fact Sheet: Summary of State Sex Offender Registries, 2001, at 3.
18. Julia Sommerfeld, Megan’s Law Expands to the Internet, at http://msnbc.com/news/297969.asp (Aug. 17, 1999).
19. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803) (justifying courts’ power and duty of judicial review); see also The Federalist No. 78 (Alexander Hamilton) (supporting Supreme Court’s power to review legislative enactments and suggesting “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”).
20. The Supreme Court’s rulings have drawn of welter of commentary and criticism from legal scholars: See, e.g., Jennifer G. Daugherty, Sex Offender Registration Laws and Procedural Due Process: Why Doe v. Department of Public Safety Ex Rel. Lee Should be Overturned, 26 Hamline L. Rev. 713 (2003); Kimberly B. Wilkins, Sex Offender Registration and Community Notification Laws: Will these Laws Survive? 37 U. Rich. L. Rev. 1245 (2003); Connecticut Department of Public Safety v. Doe: Sex Offender’s Due Process under “Megan’s Law” & the Effectiveness of Sex Offender Registration, 36 U. Tol. L. Rev. 789 (2005); Connecticut Department of Public Safety v. Doe: The Supreme Court’s Clarification of Whether Sex Offender Registration and Notification Laws Violate Convicted Sex Offender’s Right to Procedural Due Process, 24 J. NAALJ 383 (2004); A Thin Line Between Concurrence & Dissent: Rehabilitating Sex Offenders in the Wake of McKune v. Lile, 25 Cardozo L. Rev. 1111 (2004); Balancing the Protection of Children Against the Protection of Constitutional Rights: The Past, Present and Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004); The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U.L.R. 295 (2006); Sex, Shame & the Law: An Economic Perspective on Megan’s Laws, 42 Harv. J. on Legis. 355 (2005); Making Outcasts out of Outlaws: The Unconstitutionality of Sex Offender Registration & Criminal Alien Detention, 117 Harv. L. Rev. 2731 (2004).
21. See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003); State v. Waterman, 262 Conn. 484 (2003); State v. Johnson, 76 Conn. App. 410, cert. denied, 264 Conn. 912 (2003).
22. 538 U.S. 1, 7-8 (2003).
23. Doe v. Lee, 132 F. Supp. 2d 57 (D. Conn. 2001).
24. Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001).
25. 538 U.S. 1, 7-8 (2003).
26. U.S. Const. art. I, § 10, cl. 1 (“No State shall … pass any … ex post facto law.”).
Ex post facto adj. Latin for “after the fact,” which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed. Such laws are specifically prohibited by the U. S. Constitution, Article I, Section 10. Therefore, if a state legislature or Congress enact new rules of proof or longer sentences, those new rules or sentences do not apply to crimes committed before the new law was adopted.
27. See, e.g., Danielle Kitson, It’s and Ex-Post Fact: Supreme Court Misapplies the Ex-Post Facto Clause to Criminal Procedure Statutes, 91 J. Crim. L. & Criminology 429 (2001).
28. See, e.g., Miller v. Florida, 482 U.S. 423, 429-30 (1987); Weaver v. Graham, 450 U.S. 24, 28-29 (1981).
29. See, e.g., Miller, 482 U.S. at 429; Weaver, 450 U.S. at 28-20.
30. See Weaver, 450 U.S. at 28-29; Calder v. Bull, 3 U.S. 386, 390 (1798).
31. See Weaver, 450 U.S. at 29 n. 10; Calder, 3 U.S. at 390.
32. Carmell v. Texas, 529 U.S. 513, 533 (2000); see generally Danielle Kitson, It’s an Ex-Post Fact: Supreme Court Misapplies the Ex-Post Facto Clause to Criminal Procedure Statutes, 91 J. Crim. L. & Criminology 429 (2001).
33. 538 U.S. 84 (2003).
For Further Reading on Megan’s Law
Jessica A. Orbe, Connecticut Department of Public Safety v. Doe: Sex Offenders’ Due Process under “Megan’s Law” & the Effectiveness of Sex Offender Registration, 36 U. Tol. L. Rev. 789 (2005)
Brett R. Hobson, Banishing Acts: How Far may States go to Keep Convicted Sex Offenders Away from Children? 40 Ga. L. Rev. 961 (2006)
Seth A. Grossman, A Thin Line Between Concurrence & Dissent: Rehabilitating Sex Offenders in the Wake of McKune v. Lile, 25 Cardozo L. Rev. 1111 (2004)
Maureen S. Hopbell, Balancing the Protection of Children Against the Protection of Constitutional Rights: The Past, Present & Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004)
Note: Making Outcasts out of Outlaws: The Unconstitutionality of Sex Offender Registration & Criminal Alien Detention, 117 Harv. L. Rev. 2731 (2004)
Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U.L. Rev. 295 (2006)
Doron Teichman, Sex, Shame & the Law: An Economic Perspective on Megan’s Law, 42 Harv. J. on Legis. 355 (2005)
Gabriel Baldwin, CDPS v. Doe: The Supreme Court’s Clarification of Whether Sex Offender Registration and Notification Laws Violate Convicted Sex Offenders’ Right to Procedural Due Process, 24 J. NAALJ 383 (2004)
Jennifer G. Daugherty, Sex Offender Registration Laws and Procedural Due Process: Why Doe v. Department of Public Safety Ex Rel. Lee should be Overturned, 26 Hamline L. Rev. 713 (2003)
Kimberly B. Wilkins, Sex Offender Registration & Community Notification Laws: Will these Laws Survive?, 37 U. Rich. L. Rev. 1245 (2003)
Caroline L. Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 Harv. C.R.-C.L.L. Rev. 89 (1996)
[Harvard Civil Rights-Civil Liberties Law Review]
Daniel Farber & Suzanne Sherry, The Pariah Principle, 13 Const. Comment 257 (1996)
Abril R. Bedarf, Examining Sex Offender Community Notification Law, 83 Cal. L. Rev. 885, 899 (1995)
Alison M. Siskin & David Teasley, Sex Offender Registration: Issues and Litigation, in Criminal Justice and Law Enforcement Issues 60 (Katherine A. Neumann ed. 2002).
Melissa R. Saad, Civil Commitment and the Sexually Violent Predator, 75 Denv. U.L. Rev. 595, 607-08 (1998)
Jenny A. Montana, An Ineffective Weapon in the Fight Against Child Sexual Abuse, 3 J.L. & Pol’y 569, 594 & n.115 (1995)
Eric S. Janus & Wayne A. Logan, Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators, 35 Conn. L. Rev. 319 (2003)
Danielle Kitson, It’s an Ex-Post Fact: Supreme Court Misapplies the Ex-Post Facto Clause to Criminal Procedure Statutes, 91 J. Crim. L. & Criminology 429 (2001)
Jane A. Small, Who are the People in your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U.L. Rev. 1451 (1999)
Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s,
90 Nw. U. L. Rev. 788 (1996)