Megan's Law Part 2: Offenders Oppose
the Law in Court
Dateline: 08/11/97
The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act encouraged the states (under penalty of losing federal funding) to develop sex offender registration plans and every state has a statute requiring sex offenders to register and notify law enforcement officials of appropriate information such as address and employment(1). As discussed in Megan's Law - Part I: Federal and State Legislation, the federal government enacted Megan's Law in 1996 which amended the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act to allow states to release the information obtained through the registration process wherever state law allowed for such release and to require the release of the information "that is necessary to protect the public concerning a specific person required to register".
The same publicity that helped advocates of Megan's Law persuade Congress and various state legislatures to enact laws providing for community notification also made the law a target for attack. In some states, the ink on the governor's signature was barely dry before cases challenging the statute were brought. In the Proposed Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act the Office of the Attorney General of the United States addressed some of the challenges to these state statutes:
Some state registration and notification systems have been challenged on constitutional grounds. The majority of courts that have dealt with the issue have held that systems like those contemplated by the Jacob Wetterling Act do not violate released offenders' constitutional rights. A few courts, however, have found that certain provisions of the state systems violate (or likely violate) the Constitution. See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) (on motion for preliminary relief) (notification provision), appeal dismissed, 85 F.3d 635 (9th Cir. 1996); State v. Babin, 637 So.2d 814 (La. App.) (retroactive application of notification provision), writ denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701 (La. App. 1993)(same), writ denied, 637 So.2d 497 (La. 1994); cf. In re Reed, 663 P.2d 216 (Cal. 1983) (en banc) (registration requirements for misdemeanor offenders violate the California Constitution).
There has been extensive litigation concerning whether aspects of New Jersey's community notification program violate due process or ex post facto guarantees as applied to individuals who committed the covered offense prior to enactment of the notification statute. The Department of Justice believes that the New Jersey community notification statute at issue in those cases does not violate the Ex Post Facto Clause and that the Fourteenth Amendment's Due Process Clause of its own force does not require recognition of such a liberty interest on the part of offenders affected by that statute, and has filed "friend of the court" briefs supporting the New Jersey law.
The New Jersey Supreme Court, in John Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), upheld the New Jersey statute, although it imposed certain procedural protections under federal and state law. In Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995), the District Court held that retroactive application of the notification provisions of New Jersey's Megan's Law violated the Ex Post Facto Clause. On appeal, however, this part of the District Court's decision was vacated on ripeness grounds. 81 F.3d 1235, rehearing denied, 83 F.3d 594 (3d Cir. 1996). Then, the District Court ruled in a class-action case that the notification provisions of New Jersey's Megan's Law, as modified by the New Jersey Supreme Court's decision in Doe, are constitutional, even when retroactively applied. W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), appeal pending.
There is ongoing litigation over the validity of notification systems -- and particularly the validity of their retroactive application -- in other states as well. See, e.g., Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996) (enjoining retroactive application of community notification as an ex post facto punishment), appeal pending; Doe v. Weld, 1996 WL 769398 (D. Mass. Dec. 17, 1996) (declining to enjoin retroactive application of community notification provisions); Stearns v. Gregoire, Dkt. No. C95-1486D, slip op. (W.D. Wash. Apr. 12, 1996) (same), appeal pending; Opinion of the Justices, 423 Mass. 1201, 668 N.E.2d 738 (1996) (advisory opinion that community notification provisions are constitutional, even as retroactively applied); Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding that retroactive application of community notification violates the Ex Post Facto Clause), petition for cert. pending. The United States has filed briefs in several of these cases supporting the state laws. The United States Supreme Court soon will decide whether to grant a petition seeking review of the Kansas Supreme Court's holding that the retroactive application of Kansas' sex offender community notification provisions violates the Ex Post Facto Clause.
The most compelling and successful argument mounted by offenders challenging various states' versions of Megan's Law has been the argument that, as applied to offenders convicted prior to the law, there was a violation of the Ex Post Facto clause of the United States Constitution. The Ex Post Facto Clause (Article I, Section 10, of the United States Constitution) has been interpreted by the United States Supreme Court as proscribing legislatures from retroactively altering the definition of crimes or increasing the punishment for criminal acts(3). In Doe v. Pataki(2), the United States District Court for the Southern District of New York held that the public notification provisions of New York's Megan's Law as applied to offenders who committed sex offenses prior to the enact ment of the statute violated the Ex Post Facto clause and issued an injunction banning the publication of information about them. Doe v. Pataki is on appeal before the Second Circuit Court of Appeals.
After Doe v. Pataki, however, the United States Supreme Court issued its decision in United States v. Ursery. A New York trial-level court in People v. Afrika held, pursuant to the Ursery decision, the first line of inquiry is whether the legislature intended the statute to be punitive or remedial. The Court found that the New York State legislature clearly intended the law to be remedial. The Court noted that there is a second aspect to the inquiry:
The second aspect of the Court's inquiry is to determine if the Act is "so punitive in form and effect" as to cause it to be considered punishment, despite the legislature's evident intent to the contrary (United States v. Ursery, supra at ----, 116 S.Ct. at 2148). "Only the clearest proof" that the Act is, in fact, punitive, will suffice to transform what was intended as a civil remedy into a criminal penalty (United States v. One Assortment of 89 Firearms, supra at 365, 104 S.Ct. at 1106; Flemming v. Nestor, supra at 617, 80 S.Ct. at 1376; see also United States v. Ursery, supra at ----, 116 S.Ct. at 2142; Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 [1956] ). The examination for punitive effect will be directed primarily at the notification aspect of the law, since registration and classification, standing alone, have relatively little impact on the sex offender. Indeed, statutes requiring registration of sex offenders have repeatedly withstood constitutional challenges (see, e.g., Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 [3d Cir.1996]; Snyder v. State, 912 P.2d 1127 [Wyoming]; State v. Ward, 123 Wash.2d 488, 869 P.2d 1062; State v. Noble, 171 Ariz. 171, 829 P.2d 1217; State v. Costello, 138 N.H. 587, 643 A.2d 531; State v. Manning, 532 N.W.2d 244 [Minn. Ct. of Appeals] ).
In Collins v. Youngblood, supra at 50, 110 S.Ct. at 2723, the court elucidated the scope of the Ex Post Facto Clause by declaring that it does not bar any law which simply "alters the situation of a party to his disadvantage". Moreover, the recent opinion in Ursery, decided June 25, 1996, further contributed to the understanding of what is considered to be remedial, as opposed to punitive legislation, by repudiating the notion, engendered by its earlier decision in United States v. Halper, supra at 448, 109 S.Ct. at 1901-1902, that a statute constitutes punishment if it has any deterrent effect. The court noted that such a rule would cause "virtually every sanction to be declared as punishment: it is hard to imagine a sanction that has no punitive aspect whatsoever" (United States v. Ursery, supra at ---- at fn. 2, 116 S.Ct. at 2145 at fn. 2; see also Opinion of the Justices, 423 Mass. 1201, 668 N.E.2d 738).
The decision in Doe v. Pataki, supra, predated Ursery and labored under the crucial misconception that any deterrent effect stamped SORA as punishment. In his decision, Judge Chin listed five attributes of the public notification component which expressly persuaded him that the statute was punitive. Specifically, he determined that the Act was punitive because it:
(1) has traditionally been viewed as punitive;
(2) serves a deterrent purpose;
(3) "places a public stigma" on sex offenders;
(4) has provisions that are classic indicia of a punitive scheme; and
(5) has indirectly caused harsh results.
(Doe v. Pataki, supra at 701).Without question, public disclosure of a person's crime for the sole purpose of disgracing and humiliating the offender was once employed as a punitive measure (see People v. Letterlough, 86 N.Y.2d 259, 266, 631 N.Y.S.2d 105, 655 N.E.2d 146, citing Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke LJ 1357). These antecedents from bygone days do not dictate the conclusion that in this era, emanating from a very different context, public notification is necessarily punishment (see Flemming v. Nestor, supra at 616, 80 S.Ct. at 1375--each case turns on its own "highly particularized context"). Instead, the historical use of shaming as punishment serves to alert the court to that potential use. It is evident, however, that the Act "is not the product of lust for retribution; it is a measured attempt to achieve remedial with attendant deterrent goals. The shaming punishments of colonial times were intended to and did visit society's wrath directly upon the offender; Megan's Law has different, protective purposes" (W.P. v. Poritz, supra at 1217).
With regard to the stigma and opprobrium that may result from the disclosure of an individual's status as a sex offender, it must be recalled that criminal convictions are matters of public record (see Matter of Thompson v. Weinstein, 150 A.D.2d 782, 542 N.Y.S.2d 33). Furthermore, this Court agrees with the conclusion reached by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1, 43, 662 A.2d 367, wherein that court upheld the constitutionality of "Megan's Law," that "... a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish."
The mere fact that the law is responsive to a person's prior criminal conduct is insufficient to render it punitive (see United States v. Ursery, supra at ----, 116 S.Ct. at 2149), since our legislature reasonably concluded, with regard to sexual offenders, that their past behavior is a strong predictor of future conduct, and accordingly, implemented appropriate measures to protect society.
"Not every change in a convicted person's situation violates the Ex Post Facto Clause" (Rise v. Oregon, 59 F.3d 1556 [9th Cir.1995] ). Our jurisprudence is replete with decisional law sustaining the imposition of new disabilities or requirements, some of which are severe, on those previously convicted of criminal acts where the legislation's overall design and effect is non-punitive, that is, in furtherance of legitimate government objectives, other than mere retribution or deterrence (see, e.g., De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 [1960]--prohibited convicted felons from collecting union dues; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 [1898]--convicted felons disqualified from practicing medicine; Dominique v. Weld, 73 F.3d 1156 [1st Cir.1996]--work release privileges; Rise v. Oregon, supra--collection of blood sample from felons for DNA data bank; Gilbert v. Peters, 55 F.3d 237 [7th Cir.1995]--blood specimen upon release, discharge or parole; Bae v. Shalala, 44 F.3d 489 [7 th Cir.1995)--debarment of former drug company executives due to felony conviction; Martel v. Fridovich, 14 F.3d 1 [1st Cir.1993]--treatment program's revised rules for short-term release; United States v. Huss, supra--restricting felons from carrying firearms; United States v. Powell, 761 F.2d 1227 [8th Cir.1985]--admission to bail pending appeal; Tremblay v. Riley, 917 F.Supp. 195 [W.D.N.Y.1996]--banning Pell Grant funds to prisoners; People v. Doe, 169 Misc.2d 29, 642 N.Y.S.2d 996 [Nassau County Court]--HIV testing of felons convicted of certain sex crimes).
"The mark of an ex post facto law is the imposition of what can be fairly designated punishment for past acts. The question in each case, however, where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation" (De Veau v. Braisted, supra at 160, 80 S.Ct. at 1155). When judged by this standard, SORA unquestionably passes muster as a remedial law, since the burdens that are imposed were occasioned by bona fide governmental concerns regarding the peril presented to the public by known sexual predators who are at liberty. In conclusion, therefore, the Defendants herein have failed to establish by the clearest proof that the Act is so punitive in its effect as to negate the legislative intention to establish a civil remedial mechanism.
It seems clear that public notification laws modeled after New Jersey's Megan's Law will withstand challenges as applied to those who commit sex offenses after the law was enacted. What remains to be seen is whether those who committed sex offenses prior to the date the law was enacted in their states will be subject to public notification notwithstanding their Ex Post Facto clause challenges to the statutes.
Full text of the relevant cases that are available on the Interent:
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Footnotes:
1)Ala.Code § 13A-11-200 (1994); Alaska Stat. §§ 12.63.010, 18.65.087 (1994); Ariz.Rev. Stat.Ann. §§ 13-3821, 41- 1750(B) (1995); Ark.Code Ann. § 12-12-901 (Michie 1994); Cal.Penal Code §§ 290 to 290.7 (West 1995); Colo.Rev.Stat.Ann. § 18-3-412.5 (West 1995) Conn.Gen.Stat. § 54-102r (1995); Del.Code Ann. tit. 11 § 4120 (1994); Fla.Stat. ch. 775.21 (1995); Ga.Code Ann. § 42-9-44.1 (Michie 1995); Ga.Code Ann. § 42-9-44.1 (Michie 1995); Haw.Rev.Stat. § 707-743 (1995) Idaho Code §§ 18-8301 to 8311 (1995); Ill.Rev.Stat. ch. 730 para. 150/1 (1995); Ind.Code § 5-2- 12-1 to 12 (1995); Iowa Code Ann. §§ 692A.1-692A.13 (1995) Kan.Stat.Ann. § 22-4902 to 4909 (1995); Ky.Rev.Stat.Ann. § 17.510 (Baldwin 1995); La.Rev.Stat.Ann. § 15:540 to 549 (1995); Me.Rev.Stat.Ann. tit. 34-A. §§ 11003, 11004 (West 1994); Mass.Gen.Laws ch. 22C, § 37 (1995); Md.Code Ann. § 27-692 B (1995); Mich. Comp. Laws Ann. §§ 28.721 (1995); Minn.Stat. § 243.166 (1995); Miss.Code Ann. § 45-33-1 (1995); Mo. Rev.Stat.Ann. § 566.600 (1995); Mont.Code Ann. § 46-23-501 to 507 (1994); 1996 Neb. Laws L.B. 645; Nev.Rev.Stat. § 207.151 to .157 (1993); N.H.Rev.Stat. § 632-A:12 (1994); N.J.Stat.Ann. 2C:7-1 to 7-5 (1995); N.M. Stat.Ann. § 29-11A-1 to 11-8 (1996); N.C. Gen. Stat. § 14-208.5 to § 14.208.13 (1995); N.D.Cent.Code § 12.1-32-15 (1993); Ohio Rev.Code Ann. § 2950.01 (Baldwin 1995); Okla.Stat.Ann. tit. 57 § 581 to 587 (1995); Or.Rev.Stat. §§ 181.586, 181.595 (1994); Penn.Cons.Stat.Ann. § 42-9791 (1995); R.I.Gen.Laws § 11-37- 16, (1994); S.C.Code Ann. § 23-3-40 (1995); S.D.Codified Laws Ann. § 22-22-30 to 39 (1995); Tenn.Code Ann. § 40-39-101 to 108 (1994); Tex.Civ.Stat.Code Ann. § 4413[51] (West 1995); Utah Code Ann. § 77-27-21.5 (1994); Va.Code Ann. §§ 19.2-298.1 to 3, 19.2- 390.1 (Michie 1995); Vt.Stat.Ann. § 13-5401 (1996) Wash.Rev.Code Ann. §§ 9A.44.130, 4.24.550 (1995); W.Va.Code § 61-8F-1 to 8 (1994); Wis.Stat.Ann. § 175.45 (1995); Wyo.Stat. § 7-19-301 (1995)
2)Doe v. Pataki, 940 F.Supp. 603, 605, appeal pending, Nos. 96-6249 & 96-6269 (2d Cir. argued Jan. 7, 1997)
3)California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) and Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).