Megan’s Law
The Modern Day Scarlet Letter
by Sally A. Roberts
Historical Perspective
Sex Offender Registration and Notification Laws (“SORNLs”) have been dubbed the
modern day scarlet letter. [1] Tantamount to public branding in the technology age, SORNLs
have secured a permanent place among the state’s measures to protect its citizens from sexual
predators. Whether prosecution for statutory rape is based on the intentional act of exploitation
of a young child or strict liability, those convicted are subject to SORNLs and the burdensome
consequences of such registration in the vast majority of jurisdiction.[2]
Origin of SORNLS, or “Megan’s Law”
SORNLs gained prominence following the tragic circumstances of two children: elevenyear-old Jacob Wetterling, who was abducted at gunpoint and presumed murdered in 1989;[3]
and seven-year-old Megan Kanka, who was sexually assaulted and murdered in 1994 by a
neighbor who, unbeknownst to Megan’s family, had prior convictions for sexual assault against
children.[4] As a result of national attention, Congress passed the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act, which was included in the
Federal 1994 Omnibus Crime Bill,[5] and which required the states to adopt sex offender
registration laws within three years of the Act’s passage in order to receive federal law
enforcement funding.[6] In what is often termed “Megan’s Law,” community notification
statutes were added when Congress amended the Jacob Wetterling Act in 1996.[7]
SORNLs were designed to protect the public’s safety through the release of certain
information about sex offenders to public agencies, and, as initially envisioned, were intended to
facilitate data banks of sex offenders for law enforcement officials.[8] With the advent of
Megan’s Law, the focus on public safety shifted from informing law enforcement agencies to
alerting the community to the convicted sex offender’s location.[9] Community notification has
been deemed a justifiable intrusion into the registrant’s expectation of privacy because of “the
public’s interest in safety.”[10] Currently, all states and the District of Columbia have passed
SORNLs.[11]
Critics of SORNLs
Many people believe that sex offenders are one of the nation’s leading social problems
and that registration laws are the answer.[12] Registration laws, however, are not without their
critics who argue that the laws are ineffective.[13] Specifically, critics argue that the laws are
ineffective because they fail to accomplish the goals and purposes surrounding their creation.[14]
Critics further argue that the laws actually do more harm than good to both the registered
offender and the community as a whole.[15] Critics of registration laws have developed a
laundry list of negative effects that registration laws have on the sex offender and the
community. Almost every state allows the public access to the state’s sex offender registration
database.[16] Many states, as well as the District of Columbia, have established internet
websites where the public, from the privacy of their own home, can freely browse through any
state’s sex offender registration database.[17] Allowing the public free access to these databases
arguably helps to further the purpose of the statute, but the downfalls are numerous. One
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downfall to allowing the public free access to the sex offender registration database is the
possibility of accidental release of victims’ names.[18]
Substantive Due Process & Residency Restrictions
As legislation restricting sex offenders proliferates, it will continue to spawn
constitutional challenges. … Key differences exist between residency restrictions and
registration-notification laws. Although minor restrictions on where people may live are not
fundamental infringements of liberty, when more comprehensive residency restrictions
practically bar sex offenders from entire towns, they do infringe liberty so severely that a
fundamental interest is implicated and heightened scrutiny if appropriate. Second, courts should
consider whom residency restrictions target. The judiciary has a constitutional duty to protect
citizens from the “tyranny of the majority” by checking the legislature’s power.[19]
Constitutional Challenges to Megan’s Laws
The United States Supreme Court,[20] the Connecticut Supreme and Appellate Courts have
held that it is not a violation of procedural due process to require registration without first conducting
an evidentiary hearing on dangerousness.[21] In 2003, the Supreme Court decided the first of what
will likely be many challenges to the constitutionality of SORNLs, holding that procedural due
process does not require the state to establish a sex offender’s present level of dangerousness prior to
placing him on a sex offender registry. See Conn. Dep’t of Pub. Safety v. Doe.[22]
In Conn. Dep’t of Pub. Safety v. Doe, the appellants were Connecticut agencies, and the
Commissioners and directors of those agencies responsible for overseeing the Sex Offender Registry.
Doe was a Connecticut resident who was required to register because he was convicted of an offense
listed in the act, even though his conviction was based on conduct that occurred before the law went
into effect.
Doe filed suit in federal court in 1999, alleging a violation under 42 U.S.C. § 1983, asserting
that the registration laws were a violation of his Fifth and Fourteenth Amendment Due Process rights
and that the registration act constituted an ex post facto law. Doe claimed that the registration law was
a violation of his due process rights because it deprived him of a liberty interest - his reputation
combined with the alteration of his status under state law - without notice or a meaningful opportunity
to be heard. Doe’s basis for the ex post facto claim was that the law subjected him to punishment for
conduct committed before the law took effect. Doe sought declaratory and injunctive relief prohibiting
Connecticut from enforcing the registration law and prohibiting public disclosure of information
contained within the registry.
The district court granted Doe’s motion for summary judgment on the due process issue, but
denied the ex post facto claim.[23] The Second Circuit affirmed the district court’s ruling.[24] The
Supreme Court granted certiorari to determine the due process issue. The Supreme Court reversed the
Second Circuit. The Court held, in a short opinion, that even if an offender could prove beyond all
reasonable doubt that he was not dangerous and posed absolutely no threat to the community, it did
not matter because Connecticut’s law requires all sex offenders to register, no matter how dangerous
they are. Thus, since dangerousness was not a material element to the statute, the offender was not
afforded the constitutional procedural protections of notice and an opportunity to be heard. The Court
explained that states are not barred by procedural due process requirements in creating registration
databases. In addition, the Court stated that the claims must ultimately be analyzed in terms of
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substantive, not procedure due process. However, the Court declined to rule on a substantive due
process challenge to registration laws because the issue was not properly before the Court.
The Court basically said that if Doe had argued the case under substantive due process, he
would have won. Justice Ginsburg joined Justice Souter’s concurring opinion, which stated: “I join
the Court’s opinion and agree with the observation that today’s holding does not foreclose a claim that
Connecticut’s dissemination of registry information is actionable on a substantive due process
principle.”[25]
Retroactive Application Megan’s Laws
The constitutionality of SORNLs under the ex post facto clause has spawned a substantial
amount of litigation.[26] The ex post facto clause outlaws four distinct types of laws: (1) laws
that criminalize an act that was not previously criminal; (2) laws that make the crime greater than
it originally was at the time it was committed; (3) laws that raise the punishment attached to the
crime; (4) laws that change the rules of evidence allowing for less or different testimony than
that which was required at the time the offense was committed.[27]
Sex offenders argue that SORNLs fall under the third category, essentially asserting that
these laws create an additional punishment that is inflicted retroactively on sex offenders. The
ex post facto doctrine serves three main goals. First, it assures individuals that they will receive
fair warning of the boundaries of legal conduct, allowing them to reasonably rely on the legal
situation at the time at which they act.[28] Second, it serves as a check on the power of
government.[29] More, specifically, it acts to prevent legislatures from imposing vindictive or
arbitrary legislation on unpopular groups or individuals.[30] By doing so, it protects the
separation of powers between the legislative and judicial branches of government.[31] Finally,
the prohibition recognizes an interest in fairness by holding the government to the rules it
created.[32]
Ex Post Facto Clause
In a companion case to Connecticut Department of Public of Safety v. Doe, the Supreme
Court also delivered it opinion in Smith v. Doe[33] on March 5, 2003. The Supreme Court
evaluated the constitutionality of the Alaska Sex Offender Registration Act, which is applied to
sex offenders retroactively. The Court concluded that the intent of the Alaska Legislature was to
create a civil, non-punitive scheme, and as such did not violate the ex post facto clause of the
U.S. Constitution.
Conclusion
Since Megan Kanka’s death in 1994, federal and state versions of the law which bears her
name have been challenged; however, it appears that Megan’s Law has survived those
challenges, and will continue to remain in effect. Despite this fact, the Supreme Court has
seemingly left the door open with regard to attacks on Megan’s Law alleging violation of
substantive due process and equal protection.
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Notes:
1.
The “scarlet letter” refers to Nathaniel Hawthorne’s novel by the same name, published
in 1850, and involves an adulterous relationship between a married woman and a young minister,
where upon discovery of the affair, the heroine is forced to wear a scarlet letter around her neck.
See Nathaniel Hawthorne, The Scarlet Letter (New York, Fleet Press Corp. 1969) (1850). For an
early look at the stigmatizing effect of sex offender registration and notification laws, see
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 1990s, 90
Nw. U.L. Rev. 788 (1996). See also Daniel Farber & Suzanne Sherry, The Pariah Principle, 13
Const. Comment 257, 282 (1996) (noting that sex offender registration “seems very close to a
scarlet [letter]”)
2.
See, e.g., 42 U.S.C. § 14071 (2000) (establishing state sex offender registration
guidelines).
3.
A description of the abduction of Jacob Wetterling and the history and programs of the
Jacob Wetterling Foundation are available at http://www.jwf.org.
4.
See Smith v. Doe, 538 U.S. 84, 89 (2003) (recounting the tragic killing of Megan Kanka
and the genesis of “Megan’s Law”). See also Mission Statement of the Megan Nicole Kanka
Foundation, at http://www.megannicolekankafoundation.org.
5.
42 U.S.C. § 14071 (2000) (establishing federal guidelines for state sex offender
registration laws).
6.
Id. at 14071(g). States that did not comply were faced with decreased funding. See id. at
14071(g)(2)(A) & (B). See also Abril R. Bedarf, Examining Sex Offender Community
Notification Law, 83 Cal. L. Rev. 885, 899 (1995).
7.
See 42 U.S.C. § 14071(e)(2) (“The designated state law enforcement agency … shall
release relevant information that is necessary to protect the public concerning a specific person
required to register under this section.”). For a review of the origins of community notification
statutes, see Maureen S. Hopbell, Balancing the Protection of Children Against the Protection of
Constitutional Rights: The Past, Present & Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004).
8.
See 42 U.S.C. § 14071(b)(1) (2000) (“The Attorney General shall establish a national
database at the Federal Bureau of Investigation to track the whereabouts and movement of …
each person who has been convicted of a criminal offense against a victim who is a minor.”)
9.
See, e.g., Smith v. Doe, 538 U.S. 84, 102-03 (2003) (highlighting the nonpunitive
purpose of public safety which is advanced by alerting the public to the risk of sex offenders in
their community).
10.
See Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender
Registration Laws, 86 B.U.L. Rev. 295, 326 n.151 (2006).
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11.
See generally Devon B. Adams, U.S. Dep’t of Justice, Summary of State Sex Offender
Registries, 2001 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sssor01.pdf. All but
five states make their registries accessible to thepublic over the internet.
See also KlaasKids Foundation, Megan’s Law Legislation in all 50 States, at
http://www.klaaskids.org/pg-legmeg.htm (collecting links to state sex offender registries.).
12.
Alison M. Siskin & David Teasley, Sex Offender Registration: Issues and Litigation, in
Criminal Justice and Law Enforcement Issues 60 (Katherine A. Neumann ed. 2002).
13.
Abril R. Bedarf, Examining Sex Offender Community Notification Law, 83 Cal. L. Rev.
885, 899 (1995).
14.
See Melissa R. Saad, Civil Commitment and the Sexually Violent Predator, 75 Denv.
U.L. Rev. 595, 607-08 (1998); Jenny A. Montana, An Ineffective Weapon in the Fight Against
Child Sexual Abuse, 3 J.L. & Pol’y 569, 594 & n.115 (1995).
15.
Saad, supra note 14, at 607; Montana, supra note 14, at 577-79 & 591-94.
16.
Bureau of Justice Statistics, U.S. Dep’t of Justice, Fact Sheet: Summary of State Sex
Offender Registries, 2001, at 3.
17.
Id.
18.
Julia Sommerfeld, Megan’s Law Expands to the Internet, at
http://msnbc.com/news/297969.asp (Aug. 17, 1999).
19.
See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803) (justifying courts’
power and duty of judicial review); see also The Federalist No. 78 (Alexander Hamilton)
(supporting Supreme Court’s power to review legislative enactments and suggesting “that the
courts were designed to be an intermediate body between the people and the legislature, in order,
among other things, to keep the latter within the limits assigned to their authority.”).
20.
The Supreme Court’s rulings have drawn of welter of commentary and criticism from
legal scholars: See, e.g., Jennifer G. Daugherty, Sex Offender Registration Laws and Procedural
Due Process: Why Doe v. Department of Public Safety Ex Rel. Lee Should be Overturned, 26
Hamline L. Rev. 713 (2003); Kimberly B. Wilkins, Sex Offender Registration and Community
Notification Laws: Will these Laws Survive? 37 U. Rich. L. Rev. 1245 (2003); Connecticut
Department of Public Safety v. Doe: Sex Offender’s Due Process under “Megan’s Law” & the
Effectiveness of Sex Offender Registration, 36 U. Tol. L. Rev. 789 (2005); Connecticut
Department of Public Safety v. Doe: The Supreme Court’s Clarification of Whether Sex Offender
Registration and Notification Laws Violate Convicted Sex Offender’s Right to Procedural Due
Process, 24 J. NAALJ 383 (2004); A Thin Line Between Concurrence & Dissent: Rehabilitating
Sex Offenders in the Wake of McKune v. Lile, 25 Cardozo L. Rev. 1111 (2004); Balancing the
Protection of Children Against the Protection of Constitutional Rights: The Past, Present and
Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004); The Constitutionality of Strict Liability in
Sex Offender Registration Laws, 86 B.U.L.R. 295 (2006); Sex, Shame & the Law: An Economic
Perspective on Megan’s Laws, 42 Harv. J. on Legis. 355 (2005); Making Outcasts out of
5
Outlaws: The Unconstitutionality of Sex Offender Registration & Criminal Alien Detention, 117
Harv. L. Rev. 2731 (2004).
21.
See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003); State v. Waterman, 262
Conn. 484 (2003); State v. Johnson, 76 Conn. App. 410, cert. denied, 264 Conn. 912 (2003).
22.
538 U.S. 1, 7-8 (2003).
23.
Doe v. Lee, 132 F. Supp. 2d 57 (D. Conn. 2001).
24.
Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001).
25.
538 U.S. 1, 7-8 (2003).
26.
U.S. Const. art. I, § 10, cl. 1 (“No State shall … pass any … ex post facto law.”).
Ex post facto adj. Latin for "after the fact," which refers to laws adopted after an act is
committed making it illegal although it was legal when done, or increases the penalty for a crime
after it is committed. Such laws are specifically prohibited by the U. S. Constitution, Article I,
Section 10. Therefore, if a state legislature or Congress enact new rules of proof or longer
sentences, those new rules or sentences do not apply to crimes committed before the new law
was adopted.
27.
See, e.g., Danielle Kitson, It’s and Ex-Post Fact: Supreme Court Misapplies the Ex-Post
Facto Clause to Criminal Procedure Statutes, 91 J. Crim. L. & Criminology 429 (2001).
28.
See, e.g., Miller v. Florida, 482 U.S. 423, 429-30 (1987); Weaver v. Graham, 450 U.S.
24, 28-29 (1981).
29.
See, e.g., Miller, 482 U.S. at 429; Weaver, 450 U.S. at 28-20.
30.
See Weaver, 450 U.S. at 28-29; Calder v. Bull, 3 U.S. 386, 390 (1798).
31.
See Weaver, 450 U.S. at 29 n. 10; Calder, 3 U.S. at 390.
32.
Carmell v. Texas, 529 U.S. 513, 533 (2000); see generally Danielle Kitson, It’s an ExPost Fact: Supreme Court Misapplies the Ex-Post Facto Clause to Criminal Procedure Statutes,
91 J. Crim. L. & Criminology 429 (2001).
33.
538 U.S. 84 (2003).
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For Further Reading on Megan’s Law
Jessica A. Orbe, Connecticut Department of Public Safety v. Doe: Sex Offenders’ Due Process under
“Megan’s Law” & the Effectiveness of Sex Offender Registration, 36 U. Tol. L. Rev. 789 (2005)
Brett R. Hobson, Banishing Acts: How Far may States go to Keep Convicted Sex Offenders Away
from Children? 40 Ga. L. Rev. 961 (2006)
Seth A. Grossman, A Thin Line Between Concurrence & Dissent: Rehabilitating Sex Offenders in the
Wake of McKune v. Lile, 25 Cardozo L. Rev. 1111 (2004)
Maureen S. Hopbell, Balancing the Protection of Children Against the Protection of Constitutional
Rights: The Past, Present & Future of Megan’s Law, 42 Duq. L. Rev. 331 (2004)
Note: Making Outcasts out of Outlaws: The Unconstitutionality of Sex Offender Registration &
Criminal Alien Detention, 117 Harv. L. Rev. 2731 (2004)
Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86
B.U.L. Rev. 295 (2006)
Doron Teichman, Sex, Shame & the Law: An Economic Perspective on Megan’s Law, 42 Harv. J. on
Legis. 355 (2005)
Gabriel Baldwin, CDPS v. Doe: The Supreme Court’s Clarification of Whether Sex Offender
Registration and Notification Laws Violate Convicted Sex Offenders’ Right to Procedural Due
Process, 24 J. NAALJ 383 (2004)
Jennifer G. Daugherty, Sex Offender Registration Laws and Procedural Due Process: Why Doe v.
Department of Public Safety Ex Rel. Lee should be Overturned, 26 Hamline L. Rev. 713 (2003)
Kimberly B. Wilkins, Sex Offender Registration & Community Notification Laws: Will these Laws
Survive?, 37 U. Rich. L. Rev. 1245 (2003)
Caroline L. Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due
Process, 31 Harv. C.R.-C.L.L. Rev. 89 (1996)
[Harvard Civil Rights-Civil Liberties Law Review]
Daniel Farber & Suzanne Sherry, The Pariah Principle, 13 Const. Comment 257 (1996)
Abril R. Bedarf, Examining Sex Offender Community Notification Law, 83 Cal. L. Rev. 885, 899
(1995)
Alison M. Siskin & David Teasley, Sex Offender Registration: Issues and Litigation, in Criminal
Justice and Law Enforcement Issues 60 (Katherine A. Neumann ed. 2002).
Melissa R. Saad, Civil Commitment and the Sexually Violent Predator, 75 Denv. U.L. Rev. 595, 60708 (1998)
Jenny A. Montana, An Ineffective Weapon in the Fight Against Child Sexual Abuse, 3 J.L. & Pol’y
569, 594 & n.115 (1995)
Eric S. Janus & Wayne A. Logan, Substantive Due Process and the Involuntary Confinement of
Sexually Violent Predators, 35 Conn. L. Rev. 319 (2003)
Danielle Kitson, It’s an Ex-Post Fact: Supreme Court Misapplies the Ex-Post Facto Clause to
Criminal Procedure Statutes, 91 J. Crim. L. & Criminology 429 (2001)
Jane A. Small, Who are the People in your Neighborhood? Due Process, Public Protection, and Sex
Offender Notification Laws, 74 N.Y.U.L. Rev. 1451 (1999)
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 1990s,
90 Nw. U. L. Rev. 788 (1996)
7