Sex Offender Notification Laws

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"Megan's Law" is the name commonly used to refer to statutes that require the registration of those convicted of certain sexual offenses, and in some cases require the notification to the public of the release of a sexual offender into the community. These statutes were enacted primarily to address the particular dangers of recidivism posed by offenders who commit predatory acts against children, but by their terms usually embrace all forms of sexual predation. By 1999, each of the fifty states had enacted some form of registration and community notification provision, and federal law now requires, as a condition of federal funding, that each state engage in some form of community notification when "necessary to protect the public concerning a specific person required to register."

New Jersey's law, which was enacted in 1994 in reaction to the public outcry over the murder of six-year-old Megan Kanka by a convicted sex offender living in the neighborhood, is typical. It requires those convicted of serious sex-related offenses to register with state authorities, and classifies those registrants into three tiers representing low, moderate, or high risk of reoffense. Notification of low-risk registrants is made only to local law enforcement authorities, while notification of moderate-risk registrants is made to schools, women's shelters, or other institutions having custodial care of potential victims. High-risk registrants are the subject of widespread community notification of individual information, including photograph, place of residence, place of work or school, vehicle license plate number, and a general description of the victim of the registrant's prior sexual offense.

Various constitutional challenges have been brought against different aspects of Megan's Law. The most significant are challenges to the community notification provisions based on (1) due process of law, where the tier classification process has not been subject to some form of judicial review; (2) the ex post facto, double jeopardy, and bill of attainder clauses, where community notification has been imposed upon those whose offenses predated the legislation; and (3) the right of privacy against government disclosure of individual information. Due process challenges have been the most successful, and most courts now require that some form of judicial review of the offender's classification in "moderate risk" or "high risk" categories be available before notification is made. At least one federal appellate court has also required that the state prove the elements necessary for notification by "clear and convincing evidence."

Challenges under the ex post facto and related clauses had some initial success in lower courts, based on the tentative conclusion that community notification constituted a form of "punishment." Absent a clear test for ascertaining what constitutes "punishment," those courts usually focused on the stigmatic and ostracizing effects of community notification, as well as the historical understanding of public humiliation as a punitive measure. Subsequent decisions, however, have upheld retroactive application of community notification provisions as remedial measures rather than punitive ones, and the Supreme Court recently suggested in Hudson v. United States (1997) that the test for punishment lies more in the subjective intent of the legislature than in the objective effects of the measure in question. As a practical matter, the doctrinal shift probably forecasts a limited likelihood of success for challenges to Megan's Law should the issue ever reach the Supreme Court, because legislatures will be able to shield laws that have harsh or punitive effects through outward manifestation of a subjective nonpunitive intent.

Ronald K. Chen