Constitutional Challenges to Sex Offender Registration and Community Notification Laws

• Publication year: 2001
• Pages: 51
• Citation: Vol. 30 No. 1 Pg. 51

30 Colo.Law. 1 Colorado Lawyer 2001.

2001, February, Pg. 51. Constitutional Challenges to Sex Offender Registration And Community Notification Laws

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51

Vol. 30, No. 1, Pg. 1

The Colorado Lawyer
February 2001
Vol. 30, No. 2 [Page 51]

Specialty Law Columns
Criminal Law Newsletter
Constitutional Challenges to Sex Offender Registration And Community Notification Laws
by Christopher Gehring

In 1994, the New Jersey legislature?deeming the situation a legislative emergency?enacted "Megan's Law" in response to a highly publicized crime.1 Megan's Law is a sex offender registration and public notification statute Shortly thereafter, the U.S. Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Offender Registration Act").2 Because the Offender Registration Act encourages individual states to adopt sex offender registration laws,3 it is not surprising that all fifty states currently have some type of sex offender registration and community notification laws.4

The purpose of this article is to provide practitioners with information on sex offender registration and community notification laws. More specifically, this article discusses some of the basic constitutional challenges to those laws and reviews when such challenges can be raised

Colorado's Statutes

The Colorado legislature has enacted a sex offender registration statute5 as well as a community notification statute for the more specific statutorily defined class of "sexually violent predators."6 Because these statutes are lengthy and complex, any attorney practicing in this area should read them in detail

In addition to community notification regarding "sexually violent predators," the registration statute itself allows for notification and disclosure of registrants' information.7 Unlike the community notification statute that contains at least some guidelines and procedures and relates only to the limited class of "sexually violent predators,"8 the registration statute's notification provisions apply to all registered sex offenders, allowing dissemination of registrants' information at the discretion of law enforcement agencies.9

Further, the registration requirement applies to "any person who is convicted . . . of an offense involving unlawful sexual behavior," as well as any person convicted of an offense "for which the factual basis involved an offense involving unlawful sexual behavior."10 Thus, if a defendant is originally charged with a sex offense but later pleads guilty or is convicted of a non- sex offense, sex offender registration may still be required.11 This may be true even if the sex offense charges were dismissed or subsequent investigation revealed that the complaining witness' allegations were untrue.

Basic Constitutional Challenges to Sex Offender Statutes

When to Raise Constitutional Challenges

Before describing the basic constitutional challenges, it is important to consider when they can be raised. The first and most obvious opportunity to make a constitutional challenge is after a defendant has been arrested and charged with the offense of "failure to register."12 This may be the most favorable time because there are no ripeness or standing problems.13

A second possibility is after sentencing. When the court sentences the defendant to probation or some other form of supervised release, it may impose additional conditions relating to sex offender treatment and registration.14 In fact, in a recent case of first impression, the Tenth Circuit Court of Appeals held that a defendant is entitled to reasonable presentence notice before a court can impose a sex offender registration requirement as a special condition of supervised release.15

Third, it may be possible to raise constitutional challenges at the time the "sexually violent predator" determination is being made.16 Moreover, if a defendant is labeled a "sexually violent predator"?and thereby subjected to the community notification statutes?without first receiving procedural due process through a hearing or the right to appeal the decision, that in and of itself could give rise to a due process challenge.17

Fourth, defendants can bring civil claims for declaratory or injunctive relief as either individual or class action plaintiffs. In Colorado, this could be accomplished under either Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 106(a)18 or some other type of civil proceeding.19 Plaintiffs also can choose to bring a claim in federal court.20

Finally, Colorado Rules of Criminal Procedure ("C.R.Crim.P.") Rule 35(c) provides for post-conviction relief. If a defendant has been paroled but parole was revoked based on failure to register, C.R.Crim.P 35(c) is an appropriate procedural mechanism to attack the constitutionality of...