EFTA01091933.pdf

The Evolution of Unconstitutionality in Sex Offender Registration Laws CATHERINE L. CARPENTER* AND AMY E. BEVERLIN** More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearfiul public, have been given unfettered freedom by a deferential judiciary. This Article does not challenge the state's legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes—what this Article dubs super-registration schemes—are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations. Two intertwined causes are responsible for the schemes' constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this Article is a cautionary tale oflegislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach. • Professor of Law. Southwestern Law School. The authors wish to thank Dean Bryant Garth and Vice Dean Austen Parrish of Southwestern Law School for their support of this scholarship. We arc also grateful for the valuabk feedback we received from Professor Alexandra D'Italia and for the research assistance of Tannaz Hashcmi and Michael Morse. •• J.D. Candidate. Southwestern Law School. 2012. I would also like to thank Professor Carpenter for the opportunity to collaborate with her on this piece and for her guidance throughout the writing process. EFTA01091933 lop HASTINGS LAW JOURNAL [Vol. 63:1071 TABLE OF CONTENTS INTRODUCTION 1073 I. A RACE TO THE HARSHEST: A SNAPSHOT OF THE NEW GENERATION OF SEX OFFENDER REGISTRATION LAWS 1076 A. GROWING NUMBER OF REGISTERABLE OFFENSES I08I B. INCREASED REGISTRATION BURDENS 1087 .r. Duration 1087 2. Additional Personal Information 14)88 C. EXPANDING NOTIFICATION REQUIREMENTS 1090 .r. The Nature of the Information Released 1091 2. Access to the Information 1093 3. Removalfrom Registries 1095 D. THE NEW GENERATION OF RESIDENCY RESTRICTIONS 1096 E. INTRODUCTION OF GPS MONITORING SYSTEMS 1098 F. ON THE HORIZON: EVEN HARSHER LEGISLATION I 100 II. REGULATORY VS. PUNITIVE: A PRIMER ON THE DIFFERENCE I IOI III. PROVING PUNMON I 105 A. AFFIRMATIVE DISABILITY OR RESTRAINT no8 1. Banishment 1109 2. Loss of Freedom of Movement 1111 3. Public Shame and Humiliation 1113 4. Occupational Employment and Housing Disadvantages 1115 5. Conditions Similar to Probation or Supervised Release II i6 B. EXCESSIVENESS 1117 IV. IS THE TIME RIPE FOR A SUCCESSFUL DUE PROCESS CHALLENGE? I122 A. MAKING THE CASE FOR SUBSTANTIVE DUE PROCESS RIGHTS 1122 B. ASSERTING PROCEDURAL DUE PROCESS PROTECTIONS 1125 V. ENOUGH IS ENOUGH: THREE COURTS SPEAK OUT 1130 CONCLUSION 1132 EFTA01091934 May 2012] SEX OFFENDER REGISTRATION LAWS 1073 Excess: action that goes beyond a reasonable amount. —Webster's New World Dictionary and Thesaurus' INTRODUCTION More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary. It has been a perfect storm of intersecting legislative action and judicial inaction that has produced ever-escalating registration burdens. Set against this backdrop, a new breed of law has emerged—what this Article terms super-registration schemes —resulting from unchecked legislative action spurred on by emotionally charged rhetoric. If sex offender registration laws originally were designed to protect the children of a community,' then according to prevailing political thought, harsher sex offender laws surely must protect children more effectively. Unfortunately, that philosophy is neither accurate nor constitutional: inaccurate for its reliance on unproven recidivism statistics' and false claims of security; and unconstitutional for its ,. WEBSTER'S NEW WORLD DICTIONARY AND THESAURUS 214 ( I996). 2. See infra notes 21-31 and accompanying text. 3. Some have criticized the blind adoption of statistics claiming that sex offenders recidivate at a higher rate than do other types of offenders. See, e.g., Catherine L. Carpenter. Legislative Epidemics: A Cautionary Tale of Criminal Laws Thai Have Swept the Country. 58 BUFF. L REV. 1. 57-58 (2ozo) (referencing Department of Justice statistics to rebut the claim that sex offenders rccidivate at higher rates); Wayne A. Logan, Megan's Lairs as a Case Study in Political Stasis, fa SYRACUSE L REv. 371. 393-94 (20, r) (explaining the various sociological and political factors that may account for the daim of recidivism): Doron Teichman. Sex. Shame and the Law: An Economic Perspective on Megan's Lairs. 42 HART. J. ON LEGIS. 355. 38243 (2005) (arguing that interpreting recidivism data is more complex than generally acknowledged): Jane A. Small. Note, Who Are the People in Your Neighborhood? Due Process, Public Protection. and Sex Offender Notification Laws. 74 L REV. 1451. 1457 (E999) (identifying the flaws in adjudging recidivism rates of sex offenders). 4. A study commissioned by the Texas Senate Committee on Criminal Justice in 2010 concluded that "(biased on the research land] the testimony provided during the hearing. it is clear registries do not provide the public safety. definitely not the way it is now? S. COMM. ON Cung. JUSI10E. INTERIM RE.roxr TO 82ND LEG.. S. REP. No. 8r. at 4 (Tex. 2010). available at http://www.senate.state.tx.usi 75thenatdcommittc59cWc590InterimReport8E.pdf. One need only review the tragic circumstance surrounding the capture and seventeen-year imprisonment of Jaycee Dugard by convicted sex offender Philip Garrido to appreciate that sex offender registration laws at most aid in the apprehension of suspects. but do little to protect children. See Marisol Bello. Questions Arise on Monitoring of Sex Offenders. USA TODAY. Sept. 2. 2009. at A3 (observing ironically that Phillip Garrido was able to keep Jaycee Dugard captive for so long despite the fad that "(evety April 5 for the past to years. Phillip Garrido registered on his birthday ...as a convicted sex offender"): Maura Dolan, Federal Parole Officials Released Phillip Garrido from 50-year Sentence After Short Interview. LA. TIMES. Sept. 5, 2009. at A9 (reporting that Phillip Garrido was on parole and subject to regular inspections and visits by his parole officers during the time that Jaycee Dugard remained his captive): see also Michele L Earl-Hubbard. The Child Sex Offender Registration Laws The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the twos. go Nw. U. L. REY. 788. 853-54 (1996) (arguing that notification laws create a false sense of security in the EFTA01091935 1074 HASTINGS LAW JOURNAL [Vol. 63:1071 excessive and punitive effect. Like "piling on" penalties in football that can nullify clean tackles,' serially amended sex offender registration schemes are faltering under their own weight and ambition.' This Article posits that two intertwined causes are responsible for these schemes' constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that has become unmoored from its initial constitutional grounding. Despite significant changes to registration schemes over the past several years, courts and legislative bodies continue to rely on two Supreme Court opinions from the 2003 term to define the parameters of constitutionality in sex offender registration laws. In Smith v. Doe, the Court grappled with whether registration schemes violated ex post facto principles by requiring retroactive application to offenders convicted prior to the enactment of the laws.' And in Connecticut Department of Public Safety v. Doe, the Court addressed whether procedural due process demands that we afford convicted sex offenders the opportunity to be heard as to the level of danger they pose before their information is disseminated to the community' In both cases, the Court upheld, albeit on different bases, the constitutionality of sex offender registration schemes as civil regulations, leaving them unencumbered by the substantive and procedural requirements traditionally associated with criminal laws. Smith held that because sex offender registration laws are regulatory in nature, the constitutional ex post facto principle is inapplicable? while Connecticut Department of Public Safety determined that procedural due process did community because of the inherent voluntariness of the system). 5. See James Alder. About Football Glossary—Piling On. Aaour.coM. httpSifootball.about.com/ csffootballzorigigl_pilingon.htm (last visited Mar. z7. 2012) ("An illegal play where several players jump on the player with the ball after he's been tackled?). 6. Several recent state court decisions have declared super-registration schemes unconstitutional because of their excessive and overinclusive nature. See Wallace v. State. o5 N..E.2d 371.384 (Ind. 2009) (concluding that Indiana's amended scheme violates constitutional principles): State v. Letalien. 985 A.2d 4. 26 (Mc. 20°9) (concluding that the states new registration scheme violates cx post facto principles): State v. Williams. 952 N.E-2d t toll. 1113 (Ohio 2oz z) (ruling that sections of the states sex offender laws unconstitutionally increase the punishment for crimes committed before the law took effect). Apart from the potential constitutional infirmities, the new sex offender registration schemes come with an exorbitant pricetag and arc proving very difficult to enact and enforce. See Emanuella Grinberg.5 Years Later, States Struggle to Comply with Federal Sex Offender Law. CNN.coM (July 2.8. 2011. 11:51 AM). httpilwww.cnn.comf2oz 0CRIME/o7/28/sex.offender.adarn.waLsh.acUindex.htrnl?hpt=hp 7. 538 US. 84.89 (2003). 8. 538 U.S. 1. 1 (2003). 9. 538 U.S. at 105. EFTA01091936 May 20121 SEX OFFENDER REGISTRATION LAWS 1075 not require individualized assessment for the dissemination of registrants' information to the community.' Together, the decisions impart a striking message: Sex offender registration laws will be allowed to flourish as valid regulatory measures despite their intrusive impact. It is only human nature —indeed it is the best of political nature — that left unchecked, drafters will test constitutional boundaries with ever- broadening legislation." It is not surprising, then, that these interrelated decisions gave politicians an implicit "green light" to ramp up registration and notification requirements. Even the Court's decisions in Carr v. United States" and Reynolds v. United States" will do little to dampen this message. Although Carr limited the reach of the Sex Offender Registration and Notification Act's ("SORNA") "failure to register" law" to offenders who traveled interstate after SORNA's enactment," and Reynolds defined the role of the Attorney General to specify which pre-Act offenders must comply with SORNA," neither case addressed whether SORNA is punitive in nature or in effect. Instead, both decisions framed the inquiry into SORNA around narrow questions of congressional intent" Parsing language to determine the reach of "failure to register"'" and to define the authority of the Attorney General to implement SORNA' enabled the Court to avoid the fundamental question of whether ex post facto principles are violated by the arguably punitive nature of registration schemes. Therefore, even 10. 538 US at 8 ("States arc not barred by principles of 'procedural due process' from drawing such classifications." (quoting Michael H. v. Gerald D.. 491 U.S. z zo. 120 (1989) (plurality opinion))). i. An interesting example of swelling unchecked legislation can be found in the number of strict liability offenses, which has grown considerably since such offenses were first codified in the mid- nineteenth century. See Eric A. Degroff. The Application of Strict Criminal Liability to Maritime Oil Pollution Incidents: Is There OPA for the Accidental Spinet?. 5o Lov. L RE". 827. 841-843 (nay) (tracing the significant expansion of strict liability offenses). Only recently did the Supreme Court squash the proliferation. See John Shepard Wiley. Jr.. Not Guilty by Reason of Blamelessne,... Culpability in Federal Criminal Interpretation. 85 Va. L Rev. 1021. 1012-23 (mg) (examining recent decisions to conclude that the Court has reinvoked the importance of moral culpability, and therefore mens rea. as a necessary component of a conviction). 12. 130 S. Ct. 2229 (2010). 13. 132 S. ct.srm (2012). 14. Pub. L No. 109-248. 9 141(00). 12o Stat. 587. 6o1-04 (2006) (codified as amended at U.S.C. 4 2250 (2010)). Some states have adopted the "SORNA" acronym for their registration and notification statutes. As the Court explained in Carr. 4 2250 subjects to criminal penalties "any person who (z) 'is required to register under [SORNAr. (2) 'travels in interstate or foreign commerce.' and (3) 'knowingly fails to register or update a registration." 130 S. Ct. at 2232. 19. 130 S. Ct. at 224I. VS. 132 S. Ct at 978. 17. Reynolds. 132 S. Ct. at 98o (exploring whether SORNA applies to pre-Act offenders before the Attorney General so determines); Carr. 130 S. Cl. at 2241 (examining whether the failure-to- register criminal penalties applied to offenders whose interstate travel occurred prior to SORNA's enactment). .8. Carr, 130 S. Ct. at 2234-37. 19. Reynolds, 132 S. Ct. at 98o-82. EFTA01091937 io76 HASTINGS LAW JOURNAL No1.63:1071 taking into account the contribution of Carr and Reynolds to the discussion, a natural outgrowth of the Court's jurisprudence is what we have today: a second generation of sex offender statutes more burdensome and stigmatizing than its parent. Part I of this Article examines the current state of sex offender legislation. It traces the growth of sex offender registration laws and community notification statutes after Smith v. Doe and Connecticut Department of Public Safety. Expansion includes more significant affirmative reporting obligations, a corresponding increase in the level and intensity of community notification, and, most important, the systematic elimination of individualized risk assessment. Part II reviews the case law and theories that guide a court's determination as to whether a law is a civil regulation or a criminal statute cloaked in civil rhetoric. Part II further explains the consequences of such determinations. The balance of the Article explores the pervasive theme of excessiveness and its impact on the constitutionality of super-registration schemes. Part III analyzes today's sex offender schemes under ex post facto principles to determine whether the assumptions that controlled in Smith v. Doe continue to have vitality. This Part concludes that new assumptions dominate super-registration schemes, which recast these schemes as criminal penalties cloaked in civil disguise. Part IV makes the case that excessive legislation results in both substantive and procedural due process violations because registrants have been deprived of profound liberty interests under this generation of registration laws. If one observation can be made, it is this: Judicial deference to legislative authority is no longer an appropriate response to ever- harshening registration schemes. Despite the disapproval and fear that sex offenders generate in the community, the judiciary's role must be to support and preserve foundational constitutional principles "without respect to persons." Without judicial intervention to set boundaries, legislators will continue to respond to the community's collective fear with expanding laws that punish the sex offender. That is why Part V, entitled "Enough is Enough," heralds three state supreme courts that have filled the judicial silence with eloquent opinions that recognize the punitive nature of these serially amended schemes. I. A RACE TO THE HARSHEST: A SNAPSHOT OF THE NEW GENERATION OF SEX OFFENDER REGISTRATION LAWS Separate incidents involving three young children —Adam," Jacob," and Megan"—each of whom was abducted and murdered, coalesced in a 20. 28 U.S.C. ¢ 453 (xO1O) ("Oaths of Justices and Judges"). 21. Six-year-old Adam Walsh was abducted and murdered in 1A1. The Adam Walsh Story. NAT'L Cu. FOR MESSING e ExrLona° CHILDREN. http://www.missingkids.com/missingkidsiservleti EFTA01091938 May 2012] SEX OFFENDER REGISTRATION LAWS 1077 national conversation on crimes against children." The accounts are well known, but they are still heartbreaking to hear. Spearheaded by grieving families," the conversation transformed into political action and resulted in a myriad of legislation including the passage of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("SORA")." The Act required each of the fifty states to adopt sex offender registration laws within three years of the Act's passage in order to receive federal law enforcement funding." The first generation of sex offender laws passed in response to SORA "was designed as a tool solely for law enforcement agencies, and registry records were kept confidential."i8 In 1996, under its famous moniker "Megan's Law," Congress amended the Jacob Wetterling Act to include the dissemination of registration information to the community through community notification statutes." PageServlet?Pageld=1156 (last visited Mar. 17. 2012). Adam's father. John Walsh. established the National Center for Missing and Exploited Children in response to Adam's death. About John Walsh. AMERICA'S MOST WANTED. httplivnvcv.amw.comiaboutamw/john_walshcfm (last visited Mar. 17. 2012). 22. Eleven-year-old Jacob Wetterling was abducted at gunpoint in front of his friends in 1989 and was never found. How We Began and the Need for Transition. JACOB WcrrEatrm RESOURCE CT.. http://www.jwrc.org/WhoWeAretHistoty/tabid/u8JDefault.aspx (last visited Mar. t7. ion). 23. Seven-year-old Megan Kanka was sexually assaulted and murdered in 1994 by Jesse Timmendcquas. a neighbor who. unbeknownst to Megan's family. had prior convictions for sexual assault against children. State V. Timmendequas. 737 Aid 55.66-73 (MI um). 24. See, e.g.. Manuel Mendoza. Nation Responds to Adam Re-Airing. MIAMI NEWS. May z. 6984. at 5A (reporting the flood of tips on missing children after the ahing of Adam Walsh's disappearance); Bud Newman. Missing Children Center Like a Dream for Walsh, Pam BEACH Posr. Apr. 19. 1984. at A2 (announcing the opening of the National Center on Missing and Exploited Children): see also Steve Irsay, The Search for Jacob.. CNN.coM (Nov. i6. 2002. 7:25 PM). http://archives.cnn.com/ iooNLAW/a1191ctv.xetterlingiiindex.html (recounting theories on the abduction Jacob Wetterling). 25. For an account of the contribution each family made to the passage of registration and notification laws. sec Carpenter. supra note 3. at 19-21. 26. See Pub. L No. 103-322. § 170101. I08 Stat. 1796. 2038 (I§§§) (codified as amended at 42 U.S.C. § goy (20o6)) (repealed mob) (establishing federal guidelines for state sex offender registration laws). Some states have adopted the "SORA" acronym for their registration and notification statutes. 27. Id. § t7otot(g). States that did not comply were faced with a decrease in federal funding. See id. Although congressional action provided the final push for nationwide sex offender legislation. there were a few states that passed sex offender registration laws much earlier. See Abril R. Bedarf. Comment, Examining Sex Offender Conununity Notification Laws. 83 CALIF. L REv. 885. 887 n.4 (t995) (noting that the first slates to introduce sex offender registration laws were Alabama. Arizona. California. Illinois. and Nevada. all between i947 and 1967). 28. Doc V. Mich. Dept of State Police. 490 F.3d 49t. 495 (6th Cir. 2007) (relating the history of SORA). 29. Pub. L No. 104-145, § 2. TO Stat. t345 ( z 996) (Waffled as amended at 42 U.S.C. § 14071 (limo)). The act provided that the designated state law enforcement agency "shall rekase relevant information that is necessary to protect the public concerning a specific person required to register under this section." Id. So strong was the public's reaction to the Kankas' call for reform, that New Jersey passed the first Megan's Law just three months after Megan's murder. See E.B. v. Vemicro. nq F.3d 1077. 1081-82 (3d Cir. l§§7). EFTA01091939 lo7S HASTINGS LAW JOURNAL [Vol. 63:1071 However, SORA was only the beginning. In 2006, Congress passed the Adam Walsh Child Protection and Safety Act ("AWA")." Encompassed in the AWA is SORNA," which includes a set of regulations, penalties, and punishments for sex offenders, and a comprehensive national system for their registration." Passage of SORNA redefined the landscape. The ensuing years have been marked by a dizzying array of increased registration and community notification requirements, the emergence of harshening residency restrictions, and the elimination of individuated risk assessment.' Although jurists and scholars alike decried aspects of the original sex offender registration schemes,' in retrospect, those laws were tame by comparison to SORNA and its progeny." 30. Pub. L No. tog-248.120 Stat. 587 (2006) (codified as amended in scattered sections of 18 and 42 US.C. (2010)). The Act has been the subject of considerable scholarly criticism. See, e.g., Steven J. Costigliaeci, Protecting Our Children from Sex Offenders: Have We Gone Too Fart 46 FAIL Cr. REV. .80. 183-84 (2008) (criticizing the lack of flexibility in determining registrants' status under the AWA): David A. Singleton. Sex Offender Residency Statutes and the Culture of Fear The Case for More Afeaningftd Rational Basis Review of Fear-Driven Public Safety Laws, 3 U. Sr. Trioaks LJ. 600. 628 (2006) (arguing that residency restrictions have not been proven effective); Brittany Enniss. Note. Quickly Assuaging Public Fear How the Well-Intended Adam Walsh Act Led to Unintended Consequences. 2008 UTAH L. REV. 607.706-08 (noting that the AWA, enacted to protect minors, has harmed juvenile offenders who have been subject to its provisions): Emily A. White. Note. Prosecutions Under the Adam Walsh Act: Is America Keeping Its Promise?. 65 WASH. A LEE L. REV. 1783. 1702-93 nn.64-66 (2038) (noting a split among district courts regarding the retroactive applicability of provisions of the AWA). 3i. Pub. L. No. roq-248. tit. I. 120 Stat. 500 (2006) (codified as amended at 42 US.C. 44 i6qcri- t6929 (2010)). SORNA established "the Jacob Wetterling. Megan Nicole Kanka. and Pam Lychncr Sex Offender Registration and Notification Program." immortalizing three of the most notable victims of sex offenders. See 42 U.S.C.§ .6002 (2010). 32. See 42 U.S.C. §§ 16911-16929 (2010). A brief overview of SORNA's most basic requirements should paint a sufficient picture of the regulations put into effect. SORNA requires every sex offender to register in the jurisdictions where the offender lives, works, and goes to school. Id. § .60.3(a). Registration includes the provision of specified information to law enforcement. which will be included in the jurisdiction's sex offender registry. for a period of fifteen years to life depending on the level of the offender. Id. §§ .60.4(a). t0cit5(a). The Act authorizes the Attorney General to collect certain Internet-related information, as determined by the Attorney General. to be included in a federal registry. See id. §§ 16014(a)(7). r6sits(a). SORNA also requires that every jurisdiction provide for a criminal penalty that includes a maximum term of imprisonment that is greater than one year for a failure to comply with the registration requirements espoused in the Act. Id. 416913(c). SORNA requires each jurisdiction to make the registry information available to the public on the Internet. Id. § .69.8. The Act also established a national sex offender registry. which is accessible by the public via a website. Id. §§ rogria—z 602o. 33. Courts have acknowledged the substantial changes to sex offender registration schemes. See, e.g.. Wallace v. State. 905 N.E.2d 371.374-77 (Ind. 2009) (recounting the numerous changes to the federal and Indiana sex offender registration schemes); see also State v. Henry. 228 P.3d goo. 933-05 (Ariz Ct. App. 2010) (providing a detailed history of amendments to Arizona's offender schemes): State v. Letalien. 985 A.zd 4. 8—.. (Mc. 2000) (detailing the extensive amendments to Maine's registration scheme): Doc v. Nebraska. 734 F. Supp. 2d 882.894 (D. Neb. 2010) (discussing the impact of two 2000 amendments to Nebraska's sex offender registration laws): State v. Bodykc. 033 N.E.2d 753.757-60 (Ohio 2010) (detailing the amendments to Ohio's sex offender registration scheme). 34. For examples of judicial criticism. see Doc v. Pryor. 6t F. Supp. 2d t224. 1226 (M.D. Ala. EFTA01091940 May 2012] SEX OFFENDER REGISTRATION LAWS 1079 The revised registration schemes include an ever-increasing number of registerable offenses, lengthening durational requirements, expanded personal information reporting requirements, harsher residency restrictions, the introduction of the GPS tracking device, and the systematic elimination of individualized assessment as a touchstones One embodiment of the super-registration scheme is California's Jessica's Law," the highly trumpeted ballot measure that was passed by California voters in zoo6.j8 Acknowledged on both the ballot measure" and in subsequent case law as the toughest in the country," Jessica's Law expanded the list of registerable offenses and made more stringent reporting requirements and notification procedures:" 1999) (characterizing Alabama's registration scheme as "among the... most restrictive of such laws in the nation"): Doc v. Pataki. 3 F. Supp. 2d 456.468 (S.D.N.Y. 1998) ("Mhe registration provisions of the Act place a 'tangible burden' on plaintiffs. potentially for the rest of their lives."): Doc v. Dept of Pub. Safety. 92 P.3d 398. .o29-to (Alaska 2oos) (reiterating the burdensome nature of Alaska's registration requirements): State v. Robinson. 873 So. 2d 1205. 1213 (Fla. zoos) (recognizing that Florida's statute "imposes more than a stigma." subjecting designated sexual predators to "life-long registration requirements"): State v. Myers. 923 P.2d 1024. cosi (Kan. 1996) (-The practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment?). For scholarly criticism. see, for example. Bedarf, supra note 27. at 939: Earl-Hubbard. supra note 4. at 826 ("Although the registration laws have a regulatory purpose. the laws cause offenders to suffer a disability that is so punitive as to negate this regulatory intent?): Wayne A. Logan. A Study in "Actuarial Justice": Sex Offender Classification Practice and Procedure. 3 BUFF. Cent L REV. 593. 593-95 (20oo) (disputing the assumption that sex offenders recidivate at higher rates); see also Catherine L Carpenter. The Constitutionality of Strict Liability in Sex Offender Registration Laws. 86 B.U. L REV. 295, 299 (2006) (challenging the inclusion of strict liability sex offenses in registration schemes). 35. See Corey Rayburn Yung. One of These Laws Is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions. 46 Hay. J. ON Lams. 369, 370-7z (2009) (contending that SORNA's provisions must be amended to meet constitutional muster). 36. See infra Pan I. 37. Jessica's Law is named in memory of nine-year-old Jessica Lunsford. who was raped and murdered by John Coucy, a convicted sex offender. See Terry Aguayo. Sex Offender Guilty of Rape and Murder ofFlorida Girl. N.Y. TIMES. Mar. 8. 2007. at A15. 38. See Sexual Predator Punishment and Control Act: Jessica's Law. Prop. 83. § 22. woo Cal. Leg's. Scrv. 2155 (West) (codified as amended in scattered sections of Cal. Penal Code). 39. Id. so. See, e.g.. People v. Mosley. lie. Cal. Rptr. 3d 321.332 (CL App. 2010) (listing the "dozens of changes to the laws" concerning the registration and notification schemes). 41. Id. The passage of Jessica's Law sparked controversy and invoked scrutiny. Shortly after the law was approved by California voters, a federal judge issued a temporary injunction against the retroactive enforcement of the law's residency restrictions. lender Warren. Judge Blocks Part of Sex Offender Law. L.A. TISIES, Nov. 9. 20o6. at A32. The law's sponsors. however, did not intend for those restrictions to apply retroactively. See id.: see also Bill Ainsworth. Law Creates Homeless Parolees, Report Says—Sex Offenders Limited by Residency Rules. SAN DIEGO UNION-TRIBUNE. Feb. 22. 2008. at Al (observing that residency restrictions imposed by Jessica's Law have caused many sex offenders in California to become homeless). Nonetheless. the California Supreme Court ruled that the residency restrictions can be applied retroactively to offenders who committed their crimes before the law passed but were paroled after it took effect In re EJ.. 223 P.3d 31.38-{0 (Cal. 2010). EFTA01091941 is% HASTINGS LAW JOURNAL [Vol. 63:1071 Registration schemes like Jessica's Law have been propelled into passage by the public's fear of the stereotypic image of the sex offender —the violent pedophile on the lookout for small children.' Unfortunately, that singular perception ignores the reality that sex offender statutes stigmatize wide-ranging actions and apply to broad segments of the population. Although the cast of characters may change, countless cases relay stories of offenders, no longer dangerous, struggling to maintain stability in lives governed by ever-evolving and increasingly stringent legislation. The face of registration includes Dean Edgar Weisart, who was convicted of indecent exposure for skinny-dipping with his girlfriend in a hotel pool in 1979 and then required to register more than twenty years later.' It contemplates offenders such as Ricky Blackmun, whose family moved to Oklahoma from Iowa for a fresh start after Ricky was convicted as an adult sex offender for having sex with a thirteen-year-old girl when he was sixteen." Even though Ricky's record was expunged in Iowa, he was required to register as a tier III sex offender—the highest level —in Oklahoma until a change in the law terminated his duty to register.' Registration rolls are also populated by children —adjudicated juvenile offenders who, despite their ages, face the same burdensome registration requirements for certain offenses as do convicted adults.' The face of registration also comprises offenders displaced from their homes because of onerous residency restrictions!' In New York, a seventy-seven-year-old convicted offender living in Manhattan was banished from his residence of some forty years because of amended New York residency restrictions.a In South Florida, numerous convicted offenders live under the Julia Tuttle Causeway, a large bridge, because there is no community in South Florida where they may reside without violating residency restrictions.' In Georgia, Anthony Mann, a registered .42. This image is scared into everyone's minds because of the tragic death of Megan Kanka. who was killed by a violent pedophile. See supra notes 22-23. 43. See Wiesart V. Stewart. 665 S.E.2d 187. 187-88 (S.C. Ct. App. 2.0:m8): see also State v. Chum 76 P.3d 935. 935-36.. 941 (Haw. zoo3) (concluding that the offense of Llewelyn Chun. a husband and father who pled no contest to indecent exposure and was required to register. was not registration- worthy because it did not entail "criminal sexual conduct"). 44. Emanuella Grinberg. No Longer a Registered Sex Offender. but the Stigma Remains. CNN.com (Feb. Ct. 201o). http://articics.cnn.comhozo-ox-n/justice/oklahoma.teensex.offender_i_ offender-registry-oklahoma-label. 45. Id. .46. See, e.g.. Heiman v. State. 784 A.2d to58 (Del. zoo1) (holding that registration and community notification requirements arc constitutional as applied to juveniles): In re J.W., 787 N.E.2d 747 (III. 2033) (affirming lifetime registration for an adjudicated juvenile offender): ha re Welfare of J.R.Z. 648 N.W.2d 241.247-48 (Minn. Ct. App. zoo2) (upholding lifetime registration for an eleven-year-old). 47. For a description of the changes in residency restrictions, see infra Part I.D. 48. Berlin v. Evans. 923 N.Y.S.2d 828.828 (Sup. Ct. 2011). 4g. Catharine Skipp & Arian Campo-Flores. A Bridge Too Far. NMVSWEEK, Aug. 3. 2009. at 46: EFTA01091942 May 2012] SEX OFFENDER REGISTRATION LAWS loth sex offender, was prohibited from entering the restaurant he half owned and ran because child-care facilities located themselves within moo feet of Mann's business.'" These are the casualties of a system that at the outset was intended to protect the public from dangerous offenders but that has evolved into the politically motivated pursuit of harsher laws designed to satisfy a fearful public." Unfortunately, in that pursuit, these laws have become excessively punitive and, consequently, are no longer rationally connected to their regulatory purpose.' A. GROWING NUMBER OF REGISTERABLE OFFENSES Since the icigos, registration-worthy sex offenses have grown dramatically in number and scope. For example, in 1994, when the Indiana General Assembly adopted Zachary's Law, the state's first registration scheme (named in honor of ten-year-old Zachary Snider, who was molested and murdered by a convicted molester)," a mere eight crimes triggered registration." Currently, Zachary's Law lists forty offenses that trigger registration: twenty-one offenses trigger registration as a "sex or violent offender's and an additional nineteen offenses see Catharine Skipp. A Law for the Sex Offenders Under a Miami Bridge. TIME (Feb. 1, 2010). http://www.time.comitimcfnationlanicielo.85993957778.00.html. 5o. Mann v. Ga. Dept of Corr_ 653 S.E.2d 740. 742 (Ga. 2007) (finding Georgia's residency restrictions unconstitutional only insofar as they permitted the regulatory taking of the defendant's home without just compensation). 51. Much has been written on the public's fear and commensurate desire for harsher punishments. See WAYNE A. LOGAN. KNOWLEDGE AS POWER: CRIMINAL REGIST1tAllON AND COMMUNITY NOTIFICATION LAWS IN AMERICA 85-108 (2029) (exploring the social and political catalysts for the proliferation of registration schemes): Sara Sun Beak. What's Law Got to Do with It? The Political, Social. Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law. I BUFF. Cant L. REV. 23 ( [997) (examining the reasons why the public favors harsh punishments in the face of countervailing evidence): Singleton. supra note 3o. at 602-07 (arguing that an increase in crime reporting in the media induced the proliferation of sex offender registration laws): see also William J. Stuntz, The Political Constitution of Criminal Justice. 119 HARP. L REV. 781. 781 (2006) (contending that the harsh justice of the t9705 was a response to the "constitutional proceduralism" of the I96os). 52. See Carpenter. supra note 3. at 5t-55 (arguing that the increasing harshness of registration schemes is tied to a political desire to push offenders from their communities before adjoining communities do the same). Although the legislative intent behind registration schemes is often characterized as remedial in nature. the emotional charge prompting the legislation sometimes is not. See, e.g., Doc v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010) (acknowledging that the sponsoring legislator expressed rage and revulsion toward convicted offenders). 53. See Overview Of Lithe:1Yr LOW. ALLEN COUNTY SIEE.RIFF (Ian. 5. 2011). http://ww‘v.allencountysheriff.orgfsexoffenderlzachary.html (providing the background of the passage of Zachary's Law). For a review of the rise of personalized legislation and specifically naming legislation in honor of children victims. see Carpenter. supra note 3, at 23-34 (suggesting that the names arc an effective marketing technique based on their simplicity and emotional power). 54. See Wallace v. State. 9o5 N.E.2d 371.375 (Ind. 2009) (detailing the historical development of registerable offenses in Indiana): see also State v. Letalien. 985 A.zd 4,8-: I (Me. 2oo9). 55. IND. CODE 611-8-8-5. -7 (20n), invalidated by Wallace. goy N.E.zd 371. EFTA01091943 1082 HASTINGS LAW JOURNAL [Vol. 63:1071 trigger registration as a "sex offender."" Other states have similar trajectories, with some registration schemes adding as many as forty registration-worthy offenses to their initial legislation." In addition, some states have introduced "discretionary registration," which permits courts to require registration where mandatory registration is otherwise not required" or not allowed." In People v. Picklesimer, for example, the State conceded that the defendant's oral copulation with a seventeen-year-old girl was "voluntary," and that his conviction therefore could not support mandatory registration under existing California law." However, the State successfully argued that the defendant's conviction supported the trial court's decision to impose discretionary lifetime registration under California's sex offender statute6i Indeed, the watchword appears to be "discretionary," as legislative enactments specifically rest discretion as to a number of legal points with one of the federal or state government branches.6' Commensurate with the increase in the number of offenses is their shifting classification. To be sure, reclassification is not merely a case of semantics. When a crime is reclassified as more dangerous, so, too, is the 56. IND. CODE 114-814. invalidated by Wallace. 905 N.E.zd 37 t. 57. See, e.g.. Letalien. 985 A.zd at 8 (discussing Maine's first registration scheme, which limited the class of registrants to only those persons who had been convicted of gross sexual assault involving a victim who was under sixteen years of age at the time of the commission of the crime). Compare Femcdeer v. Haun. 227 F.3d 1244. 1247 n.z ( toth Cir. woo) (noting that Utah's registration scheme at that time listed nineteen triggering offenses), with UTAII CODE Axx. 77-27-21.5(g). (n) (20u) (listing twenty-nine registerable offenses): see also La. REV. Star. ANN. 4 15:541(24)(a) (XIII) (listing twenty- six offenses that qualify as sexual offenses. including voyeurism and video voyeurism): N.Y. CORRECT Law 4 r68-a (201r) (cataloguing over fony registerable offenses in New York). 58. See, e.g.. CAL. PENAL CODE § 290.006 (2010 (providing for discretionary registration where "the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification"): La. REv. Star. ANN. z5:544(E)( 0(2010 (permitting a court to impose lifetime registration after a contradictory hearing): La. REV. STAT. ANN. 4 t5:544(E)( r) (stating that the district attorney and the offender may enter into a plea agreement whereby the offender will be subject to lifetime registration without a contradictory hearing). 59. See, e.g.. People v. Picklesimer. 226 P.3d 348. 357 (Cal. 2010) (explaining that mandatory registration for those convicted of oral copulation with a minor is unconstitutional under California case law. but that discretionary registration is not). 6o. Id. at 356 (citing People v. Hofsheier. 129 P.3d 29 (Cal. 2006)). 6i. Id. at 357. The California Supreme Court determined that there was "no constitutional bar to having a judge exercise his or her discretion to determine whether (one convicted of a crime] should continue to be subject to registration." Id. at 358: see United States v. Dodge. 5q7 F.3d [347. 1352-53 ( nth Cir. 20 z 0) (reasoning that because of the expansive language used in SORNA. the Act allows the imposition of registration requirements for offenses not specifically enumerated). 62. See United States v. Juvenile Mak. 590 F.3d 924. 929 (9th Cir. 2009) (describing Congress's delegation to the Attorney General of the power to determine whether SORNA applied retroactively and, if so. whether it applied retroactively to juveniles): State v. Bodyke. 933 N.E.2d 753.759-6o (Ohio 2010) (criticizing Ohio's statutory scheme, which authorized the attorney general alone to reclassify offenders already classified by the court): see also WASH. REV. CODE § 4245500) (2.0II) (affording discretion to public agencies to determine "rekvant and necessary" release of information). EFTA01091944 May 2012] SEX OFFENDER REGISTRATION LAWS 1083 individual convicted of that crime." Upward reclassification increases registration and notification burdens, and reclassification affects both future offenders and those previously convicted and classified as less dangerous." Consequently, burdens associated with the reclassification are being applied retroactively to convicted offenders who were deemed a lower risk under previous registration schemes." Although it is within legislative purview to alter or expand legislation," in the absence of scientific evidence or other proof to explain the reclassification, the shift can be viewed as simply another example of legislative hunger in action. Particularly disconcerting is the fact that revised classifications are often made without individualized assessment of the convicted offender's level of dangerousness.° And even when a reclassification hearing is statutorily authorized, it does not ensure procedural due process because often the hearing is not held," or if it is held, it is administered in a cursory fashion that calls into question the hearing's legitimacy." Under Ohio's prevailing registration scheme, for example, a previously convicted offender's level of dangerousness could be reclassified upward solely upon the legislature's decision to reclassify the crime; it could not be based on a judicial determination of the dangerousness of the offender or upon a finding that the offense itself was of particular danger.' So troubling was this apparent usurpation of 63. See, e.g., Lemmon v. Harris. 949 N.E.2d 803. 804-05 (Ind 2011) (stating that the defendant. who originally was required to register for ten years. was later notified that his conviction had been reclassified to require registration for life): State v. Ortega-Martinez. zoi z-Ohio-254oU. 11 1-2 (Ct. App.) (noting that upon reclassification of its registration scheme in Ohio. convicted sex offender Ortega-Martinis classification changed front lowest level of risk offense to tier II offender with the commensurate increase in registration and notification requirements): State v. Poling. zoi I -Ohio-32°W. 1 7 (CL App.) (registrant's reporting requirements changed from annual to once every ninety days). 64. See, e.g., Jensen v. State. 905 N.E.2d 384. 389 (Ind. zoog) (explaining that the defendant had been reclassified from a "sex offender." who must register for ten years. to a "sexually violent predator." who must register for life). 65. See id.: see also Hannah v. State, zoi [-Ohio-2930U (Ct. App.) (reviewing the reclassification of seven tier I offenders to tier Ill status): Ortega-Martinez. 2011-Ohi0-2540U.11 1-2. 66. See, e.g.. Bodyke. 933 N.E2d at 766 (acknowledging the Legislatures authority to enact or amend sex offender registration laws). 67. For example. reclassification in Ohio is statutorily authorized to be administered by the attorney general alone. and therefore occurs without any individualized assessment or expert testimony. See Id. 9 22. 68. See, e.g.. Smith v. State. zoou-s76511. p. 7 (La. App. I Cir. 3116110) (reporting that although the offender was entitled to a "contradictory" hearing to determine his classification. one was never held): State v. Germane. 971 kid 555.579 (R.I. zo°42) (determining that the inability of the registrant to present evidence did not pose "any actual risk of erroneous deprivation of his protected liberty interests"). 69. See, e.g.. Doc v. Pataki. 3 F. Supp. zd 456. 460 (S.D.N.Y p°98) (finding that the offender's classification hearing lasted no more than five minutes. and that the court relied on an improper offense to determine the offender's classification). 70. See, e.g.. OHIO REV. CODE ANN. § 2050.031(A)(I)—(2) (west 20II) (articulating the new classifications and their applicability to previously convicted offenders). invalidated by Bodyke. 933 N.E.2d 753. EFTA01091945 1084 HASTINGS LAW JOURNAL Not. 63:1071 authority that the Ohio Supreme Court determined that such legislative action was a violation of the doctrine of separation of powers? But it is not just about the expanding number of offenses: it is also about their broadening scope. Originally, sexual motivation or purpose was a necessary component for an offense to be registerable, as was evident from the definitional section of the codes" and from legislative history? Today, however, registration schemes include mandatory registration for crimes committed against minors, even where there is no sexual purpose or contact? Fidelity to the original impetus for sex offender registration would suggest that, at a minimum, a registration-worthy offense must include underlying sexual predatory behavior or intent? And to some extent, that initially was the practice. Courts would find a violation of due process when, on occasion, a state legislature had crossed the bounds to require automatic registration without proof of sexual motiva