Sex Offenses

The enactment of state and federal sex offender notification and registration laws came at a furious pace in the 1990s and has continued through the 2000s. Legislators and their constituents have endorsed notification and registration as simple but effective ways of protecting public safety. Even though support for such laws has been over-whelming, concerns have been raised by some legal commentators that these laws invade the privacy of released sex offenders and make it difficult for them to rebuild their lives.

Defenders of these laws note that requiring released offenders to register with the police is an easy way for police to keep tabs on potentially dangerous persons. With the release of large numbers of sex offenders into the general population, public safety demands that the police know where these potentially dangerous persons live. In the event of a new sex offense, the police have the ability to round up possible suspects quickly. Registration also gives police in nearby towns and cities the opportunity to share information on suspects and to help locate suspects for questioning.

The law's proponents believe, however, that notification is the most important element. Prior to the passage of MEGAN'S LAW in New Jersey, as well as similar laws throughout the United States, citizens did not know when a released sex offender moved in next door or down the block. Because certain sex offenders are likely to commit criminal acts again, no notification means that offenders can use their anonymity to help conceal their criminal pursuits. Community notification laws rob the released offender of anonymity by letting neighbors know the offender's criminal history and his place of residence. Public safety is enhanced, and, armed with this information, neighbors can be on guard and assist in the monitoring of the released offender's activities.

Communities also use notification to prevent a released offender from moving into the neighborhood. Once a public hearing is held and information is distributed, landlords often become reluctant to rent housing to a person who makes community members apprehensive. Even if the released offender does move into the community, the person will be isolated from his neighbors. Communities are therefore empowered to take control of their neighborhoods and assert their right to safe and secure homes.

Defenders of these laws agree that registration and notification do have an impact on the lives of released sex offenders. However, they believe that society as a whole should have more rights than an individual sex offender. Felons, for example, are not entitled to vote or possess firearms and can suffer other civil disabilities because of their criminal convictions. Registration and notification are legitimate civil disabilities that flow from the underlying criminal act. Public safety mandates that such laws be used effectively.

Critics of registration and notification are troubled by the departure these laws take from the traditional belief that once individuals serve a criminal sentence, they have paid their debt to society and should be allowed to reenter society without significant restrictions on privacy or liberty. According to the critics, released offenders share the same expectations of privacy as other citizens. Though some courts have acknowledged that notification laws infringe upon sex offenders' privacy interest by disseminating in a packaged form, various pieces of the registrant's personal history, the state's strong interest in protecting its citizens through public disclosure substantially outweighs the sex offenders' privacy interest. Critics contend that such rulings are a slippery slope, for they provide future legislatures with the opportunity to broaden the types of crimes that are subject to notification. Society will always have a strong interest in protecting its citizens, thereby allowing more intrusive government actions over an individuals' right to privacy.

Critics also believe registration and notification laws constitute CRUEL AND UNUSUAL PUNISHMENTS, which are banned by the EIGHTH AMENDMENT. These laws are penal, because they subject the released offender to additional punishment. Defenders of the laws may claim that notification is merely a way to provide information to the public, but the impact on released offenders clearly can feel like punishment. Critics note that convicted sex offenders now have difficulty finding a place to live. Communities often use this information to prohibit entry or to try to remove the individuals from their surroundings. Offenders who do move into the community are subjected to taunts and threats, and their property is sometimes vandalized. It is unfair and unconstitutional, the critics allege, to subject individuals who have served the sentence of the court to another layer of punishment that is indefinite in length or scope.

Opponents further claim that notification has a detrimental effect on rehabilitating a released offender. Public notification may have improved personal safety, but it has also created public hysteria. Sex offenders are viewed as modernday lepers, increasing the difficulty for them to find and retain jobs. For those released offenders who truly want to make a new life, notification makes such an effort almost impossible.

In addition, critics argue that notification laws undermine a community by promoting fear. Notification may inflame passions and sometimes lead to mob rule. Instead of providing rehabilitation or deterrence, notification shames convicted offenders in a way that registration and other civil disabilities do not. Though such laws satisfy a public demand that officials crack down on offenders, critics remain skeptical as to whether such laws truly promote public safety enough to justify their intrusiveness.

The criticisms of Megan's laws ultimately led to two cases that reached the U.S. Supreme Court in 2003. In Smith v. Doe I, ___ U.S. ___, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the Court upheld Alaska's version of Megan's Law against a challenge that this law constitutes an EX POST FACTO LAW in violation of the U.S. Constitution. The same day, the Court in Connecticut Department of Public Safety v. Doe, ___ U.S. ___, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003) held that Connecticut's version of Megan's Law does not deprive sex offenders of procedural DUE PROCESS OF LAW.

In Smith, the Court reviewed an argument that because Alaska's sex offender law applies to sex offenders who committed acts prior to the enactment of the statute, the law inflicted retroactive punishment and thus constituted an ex post facto law. In a 6–3 opinion written by Justice ANTHONY M. KENNEDY, the Court rejected the argument, finding that the law was designed to protect the public from sex offenders, rather than to punish sex offenders themselves. Under the Supreme Court's doctrine governing the Ex Post Facto Clause, if a law establishes civil proceedings that are not punitive in nature, then the law does not violate the Constitution even if offenders convicted prior to the statute must adhere to certain regulatory consequences, such as registering as sex offenders. Since the Court found that Alaska's legislature intended to establish a civil proceeding, rather than to impose punishment, the law was constitutional.

In Connecticut Department of Public Safety v. Doe, a unanimous Court rejected an argument that sex offenders were denied procedural due process because they were not afforded an opportunity to determine whether they were dangerous to the public. Chief Justice WILLIAM REHNQUIST, writing for the Court, found that the sex offenders were not entitled to a hearing about their dangerousness because the sex offenders' propensity for danger was not an issue of consequence under Connecticut's law. Because the law applies to all convicted sex offenders, rather than only those who are considered dangerous, dangerousness was not a material under the state statute. Accordingly, Connecticut's Megan's Law does not deprive the offenders of any procedural due process rights.

Although the Court's decisions in 2003 strongly indicate that the Court was inclined to uphold Megan's Laws, the Court did not address several key issues, such as whether these sex offender laws violate the offenders' SUBSTANTIVE DUE PROCESS or EQUAL PROTECTION rights. Several legal commentators expected that Megan's Laws would continue to be challenged in the courts, and it might take years before all of these issues were finally resolved.