Magazine article Developments in Mental Health Law

Ruling That Dismissed Substantive Due Process Challenge to Sex Offender Registration and Notification Law Not Disturbed

Magazine article Developments in Mental Health Law

Ruling That Dismissed Substantive Due Process Challenge to Sex Offender Registration and Notification Law Not Disturbed

Article excerpt

Every state requires that various convicted sex offenders register with a state entity, typically a law enforcement agency, upon the completion of their prison term. This information is generally made available to the community by some means, which in many states, including Virginia, involves posting the information on an Internet website.

In 2003, the U.S. Supreme Court upheld such registration and notification laws in a pair of cases. In Smith v. Doe, 538 U.S. 84 (2003), the Court ruled that Alaska's registration requirements do not violate the federal constitution despite being imposed retroactively on defendants who were convicted prior to the enactment of the registration requirements because they did not constitute additional "punishment." In Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1 (2003), the Court held that the Connecticut notification scheme did not violate procedural due process when it did not require a procedure to determine the current dangerousness of the individual because disclosure is based on the offender's prior criminal conviction, which he has already had a procedural opportunity to contest, and not the offender's current dangerousness.

The Supreme Court at the time did note that it was not addressing a possible substantive due process violation as the issue had not been raised on appeal. However, the Ninth Circuit subsequently reviewed such a claim, namely, that the registration and notification provisions constituted an infringement of sex offenders' fundamental interest in life, liberty, or property, which would have required the state to show a compelling reason for the provisions. …

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