Scarlet letter sex offender databases and community notification: sacrificing personal privacy for a symbol's sake.

• Author: Kabat, Alan R.

1. THE GENERAL PROBLEM: RELEASE OF SEX OFFENDERS TO

   COMMUNITIES AND RECIDIVISM II. THE RIGHT TO PRIVACY OF SEX OFFENDERS VS. THE PUBLIC'S

   RIGHT TO KNOW III. STATE-LEVEL STATUTORY RESPONSES

   1. Retroactivity

   2. Duration

   3. Petition to End

   4. Record Review

   5. Public Records

   6. Public Databases

   7. Disclosure Upon Request

   8. Community Notification

   1. Who is Notified

   2. Whether Notification is Discretionary or Mandatory

   3. Unitary Notification or Levels of Notification

   4. What Information is Provided

1. State Actor Immunity IV. FEDERAL STATUTORY RESPONSES V. PRIVATE DATABASES AND NON-CONVICTED SEX OFFENDERS VI. A CODE OF FAIR INFORMATION PRACTICES FOR SEX OFFENDER

   DATABASES

   1. Notice Regarding Databases

      1. Openness Principle

      2. Duration Principle

      3. Collection Limitation Principle

      4. Purpose Specification Principle

   2. Reliability of Information

      1. Individual Participation Principle

      2. Data Quality Principle

   3. Use Limitation Principle

   4. Security Safeguards Principle

   5. Accountability Principle VII. CONCLUSION

1. THE GENERAL PROBLEM: RELEASE OF SEX OFFENDERS TO COMMUNITIES AND RECIDIVISM

   In this decade there has been widespread legislative and public concern about the presence of released sex offenders (on probation or at the completion of their sentence) in neighborhoods where they reside near previous or potential victims. This concern was primarily manifested for "child sex offenders," those who had committed sex offenses against children.(1) Previously, law enforcement agencies were limited to "registration" systems for monitoring the presence of released sex offenders,(2) but registration alone did not allow for community notification, since the registration records were typically not public records, or were otherwise not readily accessible.(3) Furthermore, courts were then unwilling to require community notification upon the release of child sex offenders, holding that doing so would be unwieldy and detrimental to rehabilitation.(4)

   Notwithstanding this judicial concern regarding the ineffectiveness of community notification, the 1990s saw intensive public pressure to make this information, hitherto kept in confidential law enforcement databases, available to the public. In 1990, the state of Washington enacted the first of what became a nearly nationwide system of community notification statutes.(5) This process was accelerated by the tragic 1994 slaying of Megan Kanka in New Jersey,(6) which led to many statutes (commonly termed "Megan's Laws") which required not only registration, but also notification to the community where a given sex offender plans to reside upon release. As of late 1997, three states had registration systems only;(7) six states had registration combined with some form of disclosure upon request to the public but no community notification(8) and the remaining forty-one states and the District of Columbia had registration, disclosure, and some system of community notification.(9)

   The proffered rationale for opening up the information in these databases for community notification was the perceived recidivism problem--that released sex offenders are likely, upon contact with potential victims in their neighborhood, to relapse and commit sexual offenses which could have been prevented had the victims or their parents been aware of their presence.(10) However, the actual data on recidivism is not as clear-cut as typically presented; some statistical analyses have shown that sex offenders are no more likely to relapse than other criminals, and that the recidivism rate is otherwise difficult to determine,(11) while others have asserted a higher level of recidivism for sex offenders.(12) Nonetheless, this Note assumes arguendo that some level of recidivism occurs, and that community notification may prevent some future sex offenses.

   The key issue is the effect of these sex offender information databases upon the right to privacy of sex offenders, and whether this privacy right is trumped by the community's right to know about the presence of sex offenders. This Note is limited to analysis of child sex offenders, as opposed to those who rape other adults, because most of the statutory response has addressed the former group; but much of the analysis would be similar for the latter group of offenders.(13)

   Part II of this Note briefly delineates the constitutional sources of the right to privacy which sex offenders may have, and the limits to such rights, and contrasts this with the public's right to know about the presence of sex offenders, and the value of such notification. Part III analyzes the statutory response at the state level, by comparing and contrasting the statutes enacted or proposed by the fifty states and the District of Columbia in terms of the information which is collected and the database usage, including various approaches taken to providing community notification. This experimentation at the state level will be analyzed in terms of its effect on information privacy issues. Part IV considers the statutory response at the federal level, discussing the three statutes enacted by Congress in 1994 and 1996 which attempted to provide a uniform national baseline and centralized national database for sex offender registration and community notification, while also precluding much of the state experimentation that has occurred. Part V contrasts these public databases with secret databases maintained by several private organizations or by private individuals, on sex offenders associated with the organizations, with regard to their effects on the privacy rights of sex offenders, their victims, and the public's right to know. Part VI proposes a "Code of Fair Information Practices" which attempts to provide constitutionally valid standards for sex offender databases, both public and private, in order to maintain the privacy rights of sex offenders and their victims while also allowing for an appropriate level of community notification.

   Although the law review literature contains a number of articles and notes discussing "Megan's Law" and related issues, the previous literature has invariably been limited to the analysis of a single state's statute or a single court case (with the New Jersey statute and cases the most popular subject). None that I have found have done a combined fifty-state and federal comparative analysis, nor focused primarily on privacy issues raised by sex offender databases and their diverse information uses, as I have. Nor has there been a comparison of public and private databases (both organizational and non-organizational) in this context, as far as I know. Thus, this Note represents a new contribution to the literature in its comprehensive compilation and analyses, which provides new insights that can be gleaned from the "forest" of statutes.

   It must be emphasized that this Note does not treat the equally important issue of the civil commitment of sex offenders, whereby sex offenders, upon "completing" their sentence are not released but instead ordered committed to a non-penal institution (presumably a state hospital or mental institution for the criminally insane).(14) The constitutionality of such civil commitment statutes was recently upheld by the Supreme Court in Kansas v. Hendricks,(15) and it is possible that this favorable ruling will encourage the states to enact such statutes as a way of keeping such offenders locked up in perpetuity.(16) In this context, community notification, ironically enough, may be viewed more favorably by sex offenders and civil libertarians than will civil commitment.(17)

2. THE RIGHT TO PRIVACY OF SEX OFFENDERS VS. THE PUBLIC'S RIGHT TO KNOW

   Privacy is often defined as "the right to be let alone,"(18) which, in the context of child sex offenders, represents a claimed right to remain anonymous as against their neighbors, if not their local law enforcement system. There is no explicit, per se constitutional right to privacy. However, the Supreme Court has recognized a right to privacy inherent in the Bill of Rights and the Fourteenth Amendment.(19) The doctrinal development and implications of this constitutional right has been discussed by other authors;(20) I will briefly discuss this development as it affects child sex offenders and their victims. Griswold v. Connecticut(21) is the watershed case in recognizing a privacy right as fundamental to due process interests in marriage and procreation. The reach of this privacy right into other areas, such as the rights of criminal offenders and suspects, has proven contentious.

   There are actually two components for recognizing a right to privacy--subjective and objective--as delineated by Justice Harlan in Katz v. United States:(22) "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'"(23) Harlan's two components represent a balancing test: the individual's subjective expectation in remaining private versus the public's objective expectation regarding what can reasonably be kept private. This tradeoff as applied to child sex offenders is the focus of my analysis.(24)

   The Supreme Court has not extended an overarching right to privacy to criminal offenders. Although Wisconsin v. Constantineau did impose a due process requirement of notice and hearing prior to public disclosure of alleged "problem drinkers,"(25) the Court in Paul v. Davis quickly retreated on Constantineau by allowing public disclosure of the names and photographs of unconvicted shoplifters as not violating any constitutional right to privacy as inherent in the due process liberty interest.(26) Paul is significant with regard to an analysis of sex offenders, because its holding seems to imply that even accused but unconvicted sex offenders could suffer community notification without having a constitutional cause of action.

   The metes and bounds of the privacy rights...