Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws

Article excerpt

"Am I not what I am, to some degree, in virtue of what others think and feel me to be?"(1)


Sex offenders are the scourge of modern America,(2) the "irredeemable monsters" who prey on the innocent.(3) Although this revulsion is perhaps now more widespread and more acute, it is not unprecedented in the annals of American justice. During the twentieth century alone, those accused or convicted of sex offenses have been the subject of repeated social control strategies, including the "sexual psychopath" laws in effect nationwide since the 1930s, which segregate offenders in mental institutions.(4) For its part, the U.S. Supreme Court has been notably unreceptive to constitutional challenges brought against such strategies,(5) signaling its plain deference to the police power of states to target sex offenders with invasive and often quite novel interventions.(6)

In 1997, for instance, in Kansas v. Hendricks,(7) the Court upheld the nominally "civil" scheme used by Kansas to involuntarily commit "sexually violent predators" after their release from prison. While observing that "freedom from physical restraint `has always been at the core of the liberty protected by the Due Process Clause,"'(8) eight justices reaffirmed that this "liberty interest is not absolute."(9) The states, the Hendricks Court emphasized, should be afforded latitude to formulate their own methods of controlling sex offenders.(10)

This article addresses yet another police power strategy used by governments seeking to control sex offenders, a strategy that departs from previous historic efforts oriented toward physical constraints: the use of sex offender community notification laws.(11) Pursuant to these laws, sex offenders (typically upon release from prison) live out their lives beyond the walls of confinement, but they do so with the knowledge that not just the State--but also their fellow citizens--are aware of their criminal history and whereabouts in the community.[12] While the practical efficacy of such regimes has been seriously questioned,(13) not least for the sense of false security they perhaps foster among community members,(14) registration and notification laws are in place virtually nationwide, including at the federal level, and are enormously popular with the public.[15] Viewed in context, the laws represent a conspicuous example of what Professor Carol Steiker has referred to as the emerging "preventive state," whereby government acts not as a "punisher ... but rather as preventer of crime and disorder more generally," and seeks to "identify and neutralize dangerous individuals before they commit crimes by restricting their liberty in a variety of ways."(16)

Since their implementation in the early 1990s, sex offender registration and notification laws have been the subject of repeated constitutional challenges, almost all unsuccessful. Attacks based on the Cruel and Unusual Punishment, Double Jeopardy, and Ex Post Facto Clauses have usually met with defeat, on the reasoning that such laws do not impose "punishment" for constitutional purposes.(17) Less common challenges, sounding in equal protection,(18) the right to unrestricted travel,(19) and the Fourth Amendment(20) have been rejected as well. With these claims exhausted, sex offenders have now turned to another constitutional avenue' procedural due process. Despite the fact that registration and notification can have deleterious, life-long effects, not all jurisdictions afford due process protections to the broad variety of offenders targeted. Moreover, state and federal courts have reached differing results on the question of whether those subject to notification possess a "liberty interest" sufficient to compel due process protections, i.e., notice and an opportunity to be heard.(21)

This article examines the critical threshold question of whether sex offender registrants enjoy a protectible liberty interest relative to community notification,(22) which threatens the disclosure of highly personal data, including offenders' criminal history and address information, and the State's attendant branding of offenders as citizens worthy of fear and disdain. …