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Sex offenses, such as rape, sexual abuse, molestation of a child, and sexual exploitation of a minor, are much more common in the United States than one would care to admit. Sex crimes that are reported, which tend to be very few compared to the amount that occur, often lead to serious punishment for the offender. During incarceration, these offenders are of no harm to the public; however, one can never be too safe knowing that these criminals are roaming free after their time in prison has been completed. Due to sources such as familywatchdog.us and the New York State Division of Criminal Justice Service’s website, the public has the ability to find and track convicted sex offenders after they are released. By a few simple steps, anyone can gain full access to a sex offender’s photograph, physical description, personal information, previous charges, and current occupation and address. Easy access to this information may provide a sense of comfort and safety for the community; yet how fair is this lack of privacy to these offenders, who have already paid their price and are trying to put their crimes behind them? Under the laws of the United States Constitution, it must be argued that these registered offenders are unfairly given a double punishment by the utter humiliation cast upon them through their clear absence of privacy.
Released sex offenders were not exposed to lifelong shame and disgrace until a law was passed in 1996, known as “Megan’s Law”. In July of 1994, seven-year-old Megan Kanka, as Bill Mears from the CNN Washington Bureau states, was “kidnapped, raped, and murdered by a twice-convicted sex offender who lived across the street” (Mears, 2003). After this incident, Megan’s Law was created and requires convicted sex offenders released from prison to register with local authorities, making it easier to track their whereabouts and making their personal information available to the community. There are a great deal of issues and concerns when it comes to the constitutionality of this law. Some of these issues were confronted in 2003 when the Supreme Court rejected challenges to the sex offender notification laws in Alaska and Connecticut.
The case Smith v Doe was concerned with the state of Alaska’s sex offender registration laws. This case involved two men, Doe I and Doe II: one man was convicted of abusing his daughter, and the other was convicted of abusing a 14 year old girl. Both men were released for their crimes in 1990, four years before any law requiring the registration of sex offenders was in effect. Nevertheless, both of these men were obligated to follow the registration requirements once Megan’s Law was put into place, even after spending years outside of prison rebuilding their new lives and gaining back their reputations. Dana L. McDonald, in her article on Smith v Doe, stated “In 1994, Doe I and Doe II, along with Doe I’s wife, filed a complaint in the United States District Court for the District of Alaska. They asserted that ASORA violated their procedural and substantive due process rights, their federal constitutional privacy rights, and the Ex Post Facto Clause” (McDonald, 370, 2004). These complaints, however reasonable, did not end up being successful. According to Linda Greenhouse from The New York Times, “The court ruled 6 to 3 that Alaska could apply its law, which includes posting a registry of convicted sex offenders on the Internet, to those who were convicted before the law took effect in 1994” (Greenhouse, 2003). By 2003, all 50 states had adopted Megan’s Law, which imposed registration requirements on tens of thousands of people, whose original convictions imposed no such obligation (Greenhouse, 2003). The main question encountered was whether or not this was a violation of the Ex Post Facto Clause of Article I of the Constitution.
Article I, Section 9, Clause 3 of the United States Constitution states, “No Bill of Attainder or ex post facto law shall be passed” (United States Constitution). An ex post facto law is one that inflicts punishment on a person for some prior act that was legal at the time the act was committed. Forcing tens of thousands of previous offenders to comply with this law, after already completing their sentence, is obvious proof that the Constitution had been violated. This fact was denied by the claim that Alaska’s sex offender registration law was regulatory. With its goal being purely to protect the public, Alaska’s law was considered non-punitive, by not considering sex offender registration requirements as being a punishment inflicted upon the offender. In an opposing opinion, Justice John Paul Stevens claims, “the majority will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment” (Stevens, 2003). Stevens not only realizes the injustice of these obligations, but by acknowledging that it is sex offenders and sex offenders only that must be registered, he brings up another argument in terms of this law: why sex offenders are obligated to register with the state when other dangerous criminals are not. Sex offenders released from prison are not only stuck with their crime for life through a humiliating invasion of privacy, but are also given an unfair disadvantage among the criminal population. Why should a man convicted of a minor sex crime be deemed more dangerous to society than a thief or a murderer? This is just another factor that adds to the unfairness of Megan’s Law.
Aside from the challenges faced by Alaska’s sex offender registration law, Connecticut also faced challenges that came about due to the passing of Megan’s Law. Connecticut Department of Public Safety v Doe was a Supreme Court case involving the claim that Connecticut’s sex offender registration law violates the due process rights of convicted sex offenders by denying offenders a hearing to determine their level of threat in society. The Cornell University Law School’s website provides a summary of this case and states the following:
Respondent, a convicted sex offender who is subject to the law, filed a 42 U. S. C. §1983 action on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Fourteenth Amendment’s Due Process Clause. The District Court granted respondent summary judgment, certified a class of individuals subject to the law, and permanently enjoined the law’s public disclosure provisions. The Second Circuit affirmed, concluding that such disclosure both deprived registered sex offenders of a “liberty interest,” and violated the Due Process Clause because officials did not afford registrants a pre-deprivation hearing to determine whether they are likely to be “currently dangerous.” (Cornell University Law School)
Under Megan’s Law, every sex offender must register with the state, labeling every sex offender as equally dangerous and threatening to society, which is indeed not the case. One cannot deny the difference between an 18 year old boyfriend who may have been overly intimate with his girlfriend and a 40 year old man who has been convicted of raping a young boy. By denying offenders a right to a hearing in order to differentiate between those who are socially dangerous and those who are not, the court has also raised the barriers to resumption of a formal life for those who merely made a minor mistake. If a sex offender is dangerous enough that the public must be informed of his or her whereabouts, then he or she should not be released back into the community in the first place. Despite this fact, the court rejected the argument by a vote of 9 to 0 and concluded that “the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness” (Cornell University Law School). In delivering the opinion of the court, Chief Justice Rehnquist concluded, “even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders-currently dangerous or not-must be publicly disclosed” (Rehnquist, 2003).
Whether the humiliation that comes with registering as a sex offender is considered to be a punishment or not, is a personal opinion. Those who feel it to be a punishment indeed, would naturally agree that Megan’s Law is guilty of double jeopardy, by continuing to punish the convicted offender after they have served their time. In her article, Megan’s Law: A Violation of the Right to Privacy, Tara L. Wayt critiques the earlier Supreme Court decisions involving Megan’s Law. Wayt states the following:
If Megan’s Law does constitute punishment, then registrants are effectively being punished for committing crimes that the state assumes they will commit. This conflicts with the notion that persons are innocent until proven guilty. Even if the recidivism rates are exceptionally high for sex offenders, n92 [*149] registrants must be afforded the same assumption of ‘innocent until proven guilty’ as any other criminal suspect. (Wayt, 1997)
Wayt is accusing this law of re-punishing sex offenders because of the possibility that they may commit another crime. This is not a fair or constitutional reason to abandon and destroy an individual’s feeling of safety, protection and privacy. Wayt goes on to say that “a person’s prior sex crime conviction is highly personal information that should be kept private due to the public’s inevitable negative reaction upon learning of such a conviction”( Wayt 1997). She sheds light on “alternative and narrower means of protecting the public without invading the constitutionally protected right to privacy of registrants”, such as serious efforts to treat offenders, or efforts to educate the community about general precautions in order to protect themselves from falling victim to possible sex crimes (Wayt 1997). Not only did Megan’s law violate ex post facto under Smith v Doe and violate due process under Connecticut Department of Public Safety v Doe, but under this law, previously convicted sex offenders, no matter how serious their offense, are denied the opportunity to ever live a normal life again.
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