The "Scarlet Letter Laws" of the 1990s: A Response to Critics

By Feldman, Daniel L. | Albany Law Review, Summer 1997 | Go to article overview

The "Scarlet Letter Laws" of the 1990s: A Response to Critics


Feldman, Daniel L., Albany Law Review


I. The Ex Post Facto Prohibition as the Central Issue

Under federal legislation enacted in May 1996, states must enact legislation to let their local communities know the whereabouts of convicted sex offenders or suffer reduced eligibility for certain crime control grants.(1) As of November 1996, forty states had already enacted qualifying legislation.(2) The constitutionality of such sex offender notification laws, and the public policy they implement, has been sharply criticized by several federal courts and by authors of law review articles, as well.(3)

One law review article, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s,(4) particularly exemplifies this kind of criticism. In it, the author, Michele L. Earl-Hubbard, has created the erroneous impression that community notification laws are necessarily unconstitutional when applied to sex offenders convicted prior to their enactment.(5) By basing her argument on some fundamental errors, her article provides an unusually good point of reference for a demonstration that the retroactive community notification provisions of the New York law, and similar provisions of other states' laws,(6) meet high standards of constitutionality and sound public policy. The following passage provides an archetype of the tone of that criticism:

Many of the existing laws-including Megan's Law,

Zachary's Law, and the Jacob Wetterling Act -- were passed

following a highly publicized crime against a child and were

pushed through their respective legislative bodies on a tide of

hysteria, fear, and anger. Due to the hasty passage of many

of these laws, lawmakers did not adequately consider their

potential constitutional implications or policy concerns.(7)

Even allowing some credence for that tenuous generalization, at least some of the legislators responsible for drafting those statutes first carefully considered and resolved the relevant constitutional and public policy issues.

The author of this Article was the principal sponsor of New York's Megan's Law (Megan's Law or Act)(8) in his House of the Legislature, and in drafting the statute gave careful consideration to the issues in question.(9) In fact, legislators have won passage for their community notification statutes not because they were unaware of or careless about the arguments that have persuaded the critics, but because those critics remain unaware or careless in the midst of the sound arguments that trump their own.

Critics of Megan's Law, or sex offender registration and notification statutes, raise a variety of constitutional and public policy questions.(10) However, the issues raised converge on one central question, which is based on the Constitution's ex post facto prohibition. That question is whether sex offender notification constitutes punishment.(11) If it does not represent punishment, then the Constitution does not bar notification statutes, because legislatures may impose burdens on citizens so long as they are not new punishments for previously sentenced criminals.(12) Furthermore, if the burdens imposed are not classified as punishment, they must be no more than necessary to achieve worthy, non-punitive social goals in order to survive a constitutional challenge.(13)

Aside from the ex post facto prohibition, other challenges to Megan's Law have been based on constitutional prohibitions against unreasonable search and seizure of fingerprints and photographs, denial of equal protection of the law, cruel and unusual punishment, double jeopardy, bills of attainder, invasion of privacy by virtue of government disclosure of certain types of information to the public, and violations of procedural due process.(14)

Those challenges, as well as challenges to registration requirements, either have been or can easily be met. …

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