Liberty interests in the preventive state: procedural due process and sex offender community notification laws.

• Author: Logan, Wayne A.

"Am I not what I am, to some degree, in virtue of what others think and feel me to be?"(1)

1. INTRODUCTION

   Sex offenders are the scourge of modern America,(2) the "irredeemable monsters" who prey on the innocent.(3) Although this revulsion is perhaps now more widespread and more acute, it is not unprecedented in the annals of American justice. During the twentieth century alone, those accused or convicted of sex offenses have been the subject of repeated social control strategies, including the "sexual psychopath" laws in effect nationwide since the 1930s, which segregate offenders in mental institutions.(4) For its part, the U.S. Supreme Court has been notably unreceptive to constitutional challenges brought against such strategies,(5) signaling its plain deference to the police power of states to target sex offenders with invasive and often quite novel interventions.(6)

   In 1997, for instance, in Kansas v. Hendricks,(7) the Court upheld the nominally "civil" scheme used by Kansas to involuntarily commit "sexually violent predators" after their release from prison. While observing that "freedom from physical restraint `has always been at the core of the liberty protected by the Due Process Clause,"'(8) eight justices reaffirmed that this "liberty interest is not absolute."(9) The states, the Hendricks Court emphasized, should be afforded latitude to formulate their own methods of controlling sex offenders.(10)

   This article addresses yet another police power strategy used by governments seeking to control sex offenders, a strategy that departs from previous historic efforts oriented toward physical constraints: the use of sex offender community notification laws.(11) Pursuant to these laws, sex offenders (typically upon release from prison) live out their lives beyond the walls of confinement, but they do so with the knowledge that not just the State--but also their fellow citizens--are aware of their criminal history and whereabouts in the community.[12] While the practical efficacy of such regimes has been seriously questioned,(13) not least for the sense of false security they perhaps foster among community members,(14) registration and notification laws are in place virtually nationwide, including at the federal level, and are enormously popular with the public.[15] Viewed in context, the laws represent a conspicuous example of what Professor Carol Steiker has referred to as the emerging "preventive state," whereby government acts not as a "punisher ... but rather as preventer of crime and disorder more generally," and seeks to "identify and neutralize dangerous individuals before they commit crimes by restricting their liberty in a variety of ways."(16)

   Since their implementation in the early 1990s, sex offender registration and notification laws have been the subject of repeated constitutional challenges, almost all unsuccessful. Attacks based on the Cruel and Unusual Punishment, Double Jeopardy, and Ex Post Facto Clauses have usually met with defeat, on the reasoning that such laws do not impose "punishment" for constitutional purposes.(17) Less common challenges, sounding in equal protection,(18) the right to unrestricted travel,(19) and the Fourth Amendment(20) have been rejected as well. With these claims exhausted, sex offenders have now turned to another constitutional avenue' procedural due process. Despite the fact that registration and notification can have deleterious, life-long effects, not all jurisdictions afford due process protections to the broad variety of offenders targeted. Moreover, state and federal courts have reached differing results on the question of whether those subject to notification possess a "liberty interest" sufficient to compel due process protections, i.e., notice and an opportunity to be heard.(21)

   This article examines the critical threshold question of whether sex offender registrants enjoy a protectible liberty interest relative to community notification,(22) which threatens the disclosure of highly personal data, including offenders' criminal history and address information, and the State's attendant branding of offenders as citizens worthy of fear and disdain.(23) After describing the various state and federal procedures in place to effectuate community notification, the article examines the Supreme Court's decisions in the areas of privacy and governmental stigmatization. In Part IV, the decisions of the several state and federal courts that have thus far addressed the liberty interest issue are discussed, followed by an analysis of the significant due process and fairness issues raised. Finally, in Part V, the article considers how the Supreme Court is likely to address the question of whether notification implicates a cognizable liberty interest, in light of the Court's relevant precedent and increasing predisposition to regard "liberty" in narrow terms, especially with respect to the liberties retained by those convicted of crimes.

2. SEX OFFENDER REGISTRATION AND NOTIFICATION PROVISIONS NATIONWIDE

   As is now well-known, the New Jersey Legislature in 1994 enacted "Megan's Law," officially referred to as the Sex Offender Registration Act, in response to the brutal sexual assault and murder of seven-year-old Megan Kanka.(24) Although New Jersey was not the first American jurisdiction to register sex offenders,(25) Megan's Law served as a dramatic catalyst for the registration movement.(26) Today, all fifty states, the District of Columbia, and the federal government impose some form of registration requirement on sex offenders, however defined.(27) This proliferation of registration laws, in no small part, has also stemmed from the unsubtle influence of the federal government which, in 1994, required states to register and gather information on sex offenders under threat of losing a portion of federal funds if they did not comply.(28)

   Even more recently, jurisdictions in overwhelming numbers have enacted laws that allow public dissemination of registrant information, once again under federal threat. Although the 1994 federal legislation stated that jurisdictions "may release" collected registrant information,(29) Congress in 1996 directed that state law enforcement "shall release relevant information that is necessary to protect the public" concerning registrants.(30) Officially called the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program,(31) the federal law represents "a floor for state programs, not a ceiling,"(32) relative to both the information that must be gathered" and the types of offenders subject to registration.(34)

   Therefore, the federal government has mandated that registrants' information be released,(35) but has largely left to the states, consistent with "public safety purposes," the questions of (1) which offenders should be the target of disclosure; (2) the information gathered and the extent of disclosure; and (3) the standards and procedures, if any, appropriate to these determinations.(36)

   Pursuant to the latitude afforded by Congress, the states now use a variety of methods to determine which offenders warrant registration and notification. One approach, which, in the words of the Federal Guidelines is "consistent with the requirements of the Act,"(37) entails "particularized risk assessments ... with differing degrees of information release[d] based on the degree of risk."(38) A handful of jurisdictions, including Massachusetts, New Jersey, and New York, use such an approach.(39) Under these regimes, the recidivism risk levels of offenders are assessed on the basis of specified criteria during a hearing before a court or a specially constituted board, with due process rights afforded to the offender. The evaluative outcome determines the extent, method, and duration of public notification experienced by offenders. For instance, only law enforcement might be notified of the presence of "low risk" offenders, while community entities at particular risk (e.g., schools or child care facilities) are notified of ":medium risk" offenders, and the community as a whole is warned of "high risk" offenders.(40)

   On the other hand, nineteen states employ a compulsory approach, which requires that offenders satisfying statutory, offense-related criteria be subject to registration and notification, affording offenders no right to a prior hearing on the eligibility determination.(41) Seven others leave it to the exclusive discretion of local law enforcement,(42) despite their presumptive lack of clinical expertise,(43) to determine on an ex parte basis which statutorily eligible offenders pose the greatest community risk, and therefore warrant being subject to notification. Finally, in many states, due process is afforded only to a select group of statutorily specified offenders (e.g., "sexually violent predators").(44)

   The upshot of the present situation is that, although registrants face the acute public opprobrium, and manifold other negative consequences of notification,(45) for periods of time ranging from ten years to life,(46) most states fail to afford offenders due process protections before notification decisions are made.(47)

   Recently, several courts have stepped into this vacuum and required states to afford basic due process rights before individual sex offenders are subjected to notification. For instance, in Massachusetts the Supreme Judicial Court, in the absence of a legislative requirement, has held that due process compels that a hearing be conducted even before "level-one" sex offenders (those posing the least risk) are subject to registration and notification.(48) In Oregon, the State Supreme Court required the State to provide registrants notice and an opportunity to be heard prior to carrying out notification.(49) And the Middle District of Alabama recently enjoined application of the Alabama Community Notification Act,(50) which entails arguably the nation's most aggressive...