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Tuesday, Feb. 26, 2002

Last week, the Supreme Court announced that it would hear a challenge to Alaska's Sex Offender Registration Act. The law is Alaska's version of Megan's Law - a New Jersey statute, named for a little girl who was tragically murdered by a convicted sex offender, that requires sex offenders to register with the state, and provides for notification of the public regarding their release and whereabouts.

Every state now has its own version of Megan's Law, making Otte v. John Doe I a case of enormous interest to every citizen.

Megan's Laws: The Registration and Notification Requirements

Under all of the different states' Megan's Laws, whether a convict has to register turns on the crime he committed. Different states differ on which crimes require registration. In every state, any sexual assault on a minor will trigger registration. Some states cast a wider net: in Alaska, for example, possession of child pornography also requires registration.

What it means to register also varies from state to state. Generally speaking, states require sex offenders to tell them where they are living and provide identifying information (height, weight, fingerprints, etc.). How long an offender remains on the registry depends on the crime. Some states require an offender to update information only when it changes - for example, when he moves; others require more frequent updates.

Coupled with registration is notification: Megan's Laws provide ways for the public to find out who is on the sex offenders registry. Notification regimes vary dramatically across the country.

In New York and New Jersey, for example, offenders are assigned to categories depending on the risk they are deemed to pose to the public, and each category, in turn, involves a different level of notice. In contrast, the entire Alaskan registry is online, and anyone can have a look. The rest of the states generally fall in between these two extremes.

The Case Before the Supreme Court: Due Process and Ex Post Facto Challenges

The first Megan's Law was enacted in New Jersey in 1994. In the ensuing years every state has followed suit, usually requiring all sex offenders - even those who have already completed sentences for crimes committed long before the laws were passed - to register.

Over this time, lower court cases in various states have addressed the arguments that Megan's Laws are unconstitutional because they violate the due process and Ex Post Facto Clauses. The Constitution's Ex Post Facto clause sounds arcane, but is actually relatively straightforward. It prohibits the state from increasing the possible punishment for an act after the act was committed. Critically, the clause only proscribes punishments: the state can place restrictions on defendants after the fact as long as they are not punitive. The case the Supreme Court just decided to hear will represent the first time the Court has ruled on the law's constitutionality.

Each of the two offenders challenging the Alaska Megan's Law before the Court pled nolo contendre (roughly, no contest) to one count of sexually abusing a minor in the mid-1980s, long before the law was passed. The offenders contend that the law's registration requirement is a "punishment," and thus, as applied to them, violates the Ex Post Facto Clause, by punishing them for crimes that predated the law's enactment.

The Ninth Circuit agreed with the offenders, and now the Supreme Court will consider the Ex Post Facto Clause issue. It is a profoundly important question. Megan's Laws are of recent vintage, and there are thousands of sex offenders who will not be listed in the registries if the Supreme Court decides that the laws violate the Ex Post Facto clause.

Does Megan's Law Impose "Punishment" Or Simply Protect the Public?

The crucial question the Court must resolve in deciding the Ex Post Facto Clause question is whether the registration requirement imposes a "punishment." Courts look at a number of factors to resolve this issue. Most importantly for present purposes, courts recognize the principle that protecting the public is not the same thing as punishment. If the law is aimed at public safety, that is analytically distinct from punishing a specific individual.

Courts have generally begun the analysis by looking at the legislative intent behind the many Megan's Laws. This has not, in the main, been an enlightening exercise. Every state legislature has announced that the registry is designed to provide information so that the public can act to protect children. But the legislative records are also replete with fulminations against the criminals who target our children. How could it be otherwise?

It is too easy to pluck rhetoric from the record and say that the legislature has blurred the line between punishment and protection. The announced intentions of state legislatures, and not the (understandably) overheated rhetoric of individual lawmakers, should govern the inquiry into what the states intended in enacting their versions of Megan's Law.

The Flawed Analogy to "Shaming" Punishments From Colonial Times

In any event, what ought to be more useful to the Court's reasoning than the legislative intent inquiry is a second inquiry, one that looks to the actual effect of the laws on the sex offenders themselves. In determining what effects count as "punishment," courts usually start with the historical perspective: what types of effects counted as punishment in the past?

Many opponents of the notification rules have compared them to "shaming" punishments from colonial times, seeing the registries as the Internet age equivalent of Scarlet A's for adulterers. But the comparison is flawed, for shaming alone was not what made colonial sanctions punitive.

In colonial times, "shaming" punishments invariably involved the body of the criminal. Sometimes convicts were physically displayed - placed in stocks in the marketplace, for example. Sometimes they were required to apologize publicly. And sometimes they carried the "display" on their bodies, through a sign (like a Scarlet A), a brand (a murderer might have an "M" burned into his skin), or a maiming (loping off earlobes was popular).

In all of these examples, the state controlled the defendant's body, and the defendant physically bore the punishment. It was not merely a matter of giving out information: the state could have done that by posting a sign in the public square. For this reason, Megan's Laws are more properly compared to a town square scroll or town crier's announcement than to a sign or brand.

Moreover, these communities were far different from our own: smaller, less anonymous, more homogenous. Shaming was an effective form of internal exile for a society with few more powerful options for punishment. Megan's Laws, in contrast, address the problems not of a tight-knit society, but of a very loose-knit one, in which a child's parents may know little to nothing about the neighbor whose yard borders on theirs. Whereas "shaming" punishments brought the community's collective force to bear on the offender, Megan's Laws will work even in communities that have little collective force to begin with - replacing the role that market gossip might have played in colonial times.

Megan's Laws Only Disseminate Already-Available Information

We should be careful, as well, to distinguish between "shaming" punishments that demean the offender further, and the release of information that simply publicizes a prior shameful act of the offender. It is shameful to sexually assault a child, but that shame is entirely the product of the defendant's actions.

Of course, it may also be shameful to have the record of that assault publicly available. But it is: Every jurisdiction in America has a court clerk's office, and every one of those offices keeps a complete set of all criminal convictions. Those files are open to all. Megan's Law reorganizes information that was already available; it doesn't create any new information.

The law goes one step further, of course, by disseminating information. But this is just another way for the state to communicate with its citizens, without using the intermediary of the defendant's physical self.

Neighborhood Responses to True Information Are Not "Punishments"

In contending that the "effects" of Megan's Laws are similar to those of punishments, offenders have also claimed that they have been denied jobs, forced to move, or suffered other losses because people found out they were on the registry. This is not, however, the type of "punishment" contemplated by the Ex Post Facto clause.

Punishment is something the state does. If the Krispy Kreme refuses to hire you because you are a felon, that's the Krispy Kreme's affair. Society has a right to shun criminals for its own safety. That's the whole point of Megan's Law, of course, but there's nothing special about it: we've been doing it for a thousand years. These are private, uncompelled choices. As such, they are not proof of any kind that Megan's Law is punitive.

Megan's Laws Do Not Violate the Ex Post Facto Clause

In virtually every state, Megan's Law does exactly what it intends. It reorganizes information that is already, and makes it available or gives it to citizens so that they may protect themselves and their families. That's it. Most states, in fact, provide penalties for misusing the information.

Offenders may suffer as a result of their states' Megan's Laws, but they do so only collaterally - and, therefore, under the Constitution, permissibly. The laws themselves do not violate the Ex Post Facto Clause, for they do not punish, but protect.

There may, of course, be individual parts of individual sex offender registration laws than run afoul of the Constitution's Due Process Clause. Thus, in deciding the Alaska case, the Supreme Court should be mindful of the importance of providing guidance, so that lower courts can identify individual provisions that are problematic and leave the remainder of a state's registration and notification regime in place. It would be a tragedy if lower courts, uncertain about the state of the law, felt the need to interfere with Megan's Laws on a wholesale basis.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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