The "Scarlet Letter laws" of the 1990s: a response to critics.

• Author: Feldman, Daniel L.

1. The Ex Post Facto Prohibition as the Central Issue

   Under federal legislation enacted in May 1996, states must enact legislation to let their local communities know the whereabouts of convicted sex offenders or suffer reduced eligibility for certain crime control grants.(1) As of November 1996, forty states had already enacted qualifying legislation.(2) The constitutionality of such sex offender notification laws, and the public policy they implement, has been sharply criticized by several federal courts and by authors of law review articles, as well.(3)

   One law review article, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s,(4) particularly exemplifies this kind of criticism. In it, the author, Michele L. Earl-Hubbard, has created the erroneous impression that community notification laws are necessarily unconstitutional when applied to sex offenders convicted prior to their enactment.(5) By basing her argument on some fundamental errors, her article provides an unusually good point of reference for a demonstration that the retroactive community notification provisions of the New York law, and similar provisions of other states' laws,(6) meet high standards of constitutionality and sound public policy. The following passage provides an archetype of the tone of that criticism:

   Many of the existing laws-including Megan's Law,

   Zachary's Law, and the Jacob Wetterling Act -- were passed

   following a highly publicized crime against a child and were

   pushed through their respective legislative bodies on a tide of

   hysteria, fear, and anger. Due to the hasty passage of many

   of these laws, lawmakers did not adequately consider their

   potential constitutional implications or policy concerns.(7)

   Even allowing some credence for that tenuous generalization, at least some of the legislators responsible for drafting those statutes first carefully considered and resolved the relevant constitutional and public policy issues.

   The author of this Article was the principal sponsor of New York's Megan's Law (Megan's Law or Act)(8) in his House of the Legislature, and in drafting the statute gave careful consideration to the issues in question.(9) In fact, legislators have won passage for their community notification statutes not because they were unaware of or careless about the arguments that have persuaded the critics, but because those critics remain unaware or careless in the midst of the sound arguments that trump their own.

   Critics of Megan's Law, or sex offender registration and notification statutes, raise a variety of constitutional and public policy questions.(10) However, the issues raised converge on one central question, which is based on the Constitution's ex post facto prohibition. That question is whether sex offender notification constitutes punishment.(11) If it does not represent punishment, then the Constitution does not bar notification statutes, because legislatures may impose burdens on citizens so long as they are not new punishments for previously sentenced criminals.(12) Furthermore, if the burdens imposed are not classified as punishment, they must be no more than necessary to achieve worthy, non-punitive social goals in order to survive a constitutional challenge.(13)

   Aside from the ex post facto prohibition, other challenges to Megan's Law have been based on constitutional prohibitions against unreasonable search and seizure of fingerprints and photographs, denial of equal protection of the law, cruel and unusual punishment, double jeopardy, bills of attainder, invasion of privacy by virtue of government disclosure of certain types of information to the public, and violations of procedural due process.(14)

   Those challenges, as well as challenges to registration requirements, either have been or can easily be met. In the courts, the registration provisions of Megan's Laws "have almost universally been sustained."(15) For example, the Supreme Court of New Jersey has held that the statutory requirement for sex offenders to provide fingerprints and a photograph "as part of the registration process does not constitute a search."(16) When discrimination has a rational basis, it does not violate the Equal Protection Clause, even if the classification is broad.(17) Other arguments fail even when applied to the notification process, once the ex post facto hurdle is passed, as was demonstrated by the New Jersey Supreme Court.(18) In order for an ex post facto challenge to be overcome, it must be met by proof that the imposition of community notification does not constitute punishment.(19) Once this is shown, there can be no further challenge based on the prohibitions against cruel and unusual punishment, double jeopardy or a bill of attainder.(20)

   If community notification constitutes an invasion of privacy, it may implicate a liberty interest, which justifies an inquiry as to whether the statute provides adequate procedural due process. The New York statute, however, clearly provides sufficient procedural due process protections. Included with the offender's right to a court hearing prior to any final order of classification are the attendant right to counsel, right to subsequent appeal, and limits on notification enforced by criminal and civil sanctions.(21)

2. Which Definition of "Punishments"?

   The application of the ex post facto prohibition to community notification requirements is the centerpiece of the constitutional challenge to Megan's Laws. The question of applicability turns on whether the burdens imposed by the statute in question constitute punishment.(22) The courts have utilized a variety of tests to determine whether any accompanying burdens are a punishment.

   Part II of this Article sets forth the approaches used to define punishment for the purpose of evaluating the constitutionality of notification laws. Part III compares the burdens imposed upon sex offenders by notification laws to the societal benefits conferred by them, demonstrating that notification laws do not fall within the constitutional definitions of punishment. Part IV, the conclusion, offers a guide to the practical implications of Megan's Law.

   1. Mendoza-Martinez

      When Earl-Hubbard concluded in her article that sex offender registration and notification laws impose a type of punishment,(23) she applied a set of criteria known as the Mendoza-Martinez factors.(24) The case of Kennedy v. Mendoza-Martinez(25) arose from a statute which provided that leaving or staying outside the United States in order to evade the draft, would result in loss of citizenship for the evader.(26) The Supreme Court held that the statute was unconstitutional because it imposed a criminal penalty -- a punishment -- without proper procedural safeguards.(27) Because the sanction was deemed to be a criminal penalty, Fifth and Sixth Amendment procedural safeguards were required.(28) The Court set forth a seven-factor test to determine whether the sanction "is penal or regulatory" in nature. The factors to be considered are whether the sanction: (1) is an "affirmative disability or restraint"; (2) is of a nature historically regarded as punishment; (3) applies only on a finding of scienter; (4) promotes retribution and deterrence, the traditional components of punishment; (5) applies to behavior that already is a crime; (6) the sanction has an alternative purpose, other than as a criminal penalty, rationally assignable to it; and (7) is excessive relative to that alternative purpose.(29)

      In practice, application of the Mendoza-Martinez factors has been inconsistent at best. In Rowe v. Burton,(30) the federal district court in Alaska applied the Mendoza-Martinez factors to determine that the burden of notification, imposed retroactively on sex offenders by the notification provisions of Megan's Law, did in fact constitute punishment in violation of the Ex Post Facto Clause.(31) However, in Nitz v. Otte,(32) decided two years after Rowe, the court corrected its erroneous decision, after reviewing the history of judicial analyses of the notification issue.(33) In Rowe, the court had incorrectly suggested that the Mendoza-Martinez factors offer "guidance helpful to deciding if the punishment which is present is sufficient to implicate the Ex Post Facto Clause."(34) While the factors are relevant, they are not sufficient by themselves to make the determination of whether the punishment is sufficiently severe to implicate the Ex Post Facto Clause.(35)

      In Artway v. Attorney General of New Jersey,(36) the Third Circuit Court of Appeals, provided a more cogent explanation of why the Mendoza-Martinez factors are inapplicable to sex offender notification laws. As of this writing, they are the only circuit court to have considered the applicability of Mendoza-Martinez to sex offender notification laws. The court "th[ought] it wise to heed the Supreme Court's advice: Mendoza-Martinez is inapplicable outside the context of determining whether a proceeding is sufficiently criminal in nature to warrant criminal procedural protections of the Fifth and Sixth Amendments."(37) The Supreme Court itself has made it clear that the Mendoza-Martinez factors are "neither exhaustive nor dispositive."(38) Even in the Mendoza-Martinez decision, the Supreme Court noted that its seven-factor test "may often point in differing directions."(31)

      Earl-Hubbard premised her conclusion that sex offender registration laws impose punishment(40) on the Mendoza-Martinez factors, making the explicit assumption "that the Mendoza-Martinez factors are still an appropriate source of information when weighing a law's purpose and its effect" to determine whether a law imposes punishment.(41) However, Earl-Hubbard's assumption is incorrect. Courts that have considered the question in depth, have rejected the Mendoza-Martinez test finding it to be inappropriate for this purpose.

   2. The Halper Rule...