Wednesday, July 2, 2014

Sex offender registration law is constitutional

Sex offenders rarely win their cases. In this action, the plaintiff argues that the sex offender registration law violates his constitutional rights because it imposes penalties were did not exist when he was convicted of his crime.

The case is Doe v.Pataki, decided on June 16. Remember learning about ex post facto laws in high school? The Constitution says you cannot punish someone after-the-fact for a crime that did not exist at the time of the incident. When my high school teacher taught us about this, he spit on the floor to prove his point. This was a prominent man in the community whose children went on to become famous actors. Anyway, if spitting is not illegal today, I can't be arrested for it if the government wants to make it illegal.

The ex post facto clause remains an obscurity. It usually gets invoked in sex offender cases, and for obvious reasons. No politician was ever taken to the woodshed for getting tough on sex offenders. Everyone hates sex offenders. What's a little more punishment?

The issue here involves new registration requirements. Under the law in effect when the plaintiff committed his crimes, offenders had to register annually for ten years. During the registration period, the offender could then petition the court to stop the registrations. But in 2006, the State Legislature passed a law that requires registrations for 20 years. In addition, only Level Two offenders who have already been registered for 30 years may petition the court to modify the level of notification. However, all sex offenders may now petition the court to change their sex offender levels. These new rules apply to the plaintiff in this case.

This is not an ex post facto problem, the Court of Appeals (Lohier, Hall and Leval) says. These registration requirements are non-punitive. Drawing from prior cases involving added “punishments” for sex offenders, the Second Circuit says the notification rules prohibit the public from misusing this information, and public access to this information is regulated. The Court states, “generally, a statutory scheme that serves a regulatory purpose is not punishment even though it may bear harshly on one affected.” And, the Court says, it's not like the information is posted on the Internet; the telephonic notification system “is a passive one. An individual must seek access to the information.”

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