Filed August 20, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 96-5132 and 96-5416
E. B., (A Fictitious Name)
v.
PETER VERNIERO*, ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY; CHARLES R. BUCKLEY,
ACTING BERGEN COUNTY PROSECUTOR; JAMES
MOSLEY, CHIEF OF POLICE OF THE CITY OF
ENGLEWOOD, NEW JERSEY
Peter Verniero*, Attorney General
Of The State Of New Jersey
Appellant in No. 96-5132
(*Amended per Clerk's Order of 7/16/96)
W. P., et al., Individually and as Representatives of a
Class pursuant to Fed. R. Civ. P. 23 (a) and 23 (b) (2)
v.
PETER VERNIERO*, Attorney General of New Jersey;
JEFFREY S. BLITZ, Atlantic County Prosecutor;
CHARLES R. BUCKLEY, Acting Bergen County Prosecutor;
STEPHEN G. RAYMOND, Burlington County Prosecutor;
JOSEPH F. AUDINO, Acting Camden County Prosecutor;
STEPHEN D. MOORE, Cape May County Prosecutor;
NEIL S. COOPER, Acting Cumberland County Prosecutor;
CLIFFORD J. MINOR, Essex County Prosecutor;
HARRIS Y. COTTON, Gloucester County Prosecutor;
CARMEN MESSANO, Hudson County Prosecutor;
SHARON B. RANSAVAGE, Hunterdon County Prosecutor;
MARYANN K. BIELAMOWICZ, Mercer County Prosecutor;
ROBERT W. GLUCK, Middlesex County Prosecutor;
JOHN KAYE, Monmouth County Prosecutor;
W. MICHAEL MURPHY, JR., Morris County Prosecutor;
DANIEL J. CARLUCCIO, Ocean County Prosecutor;
RONALD S. FAVA, Passaic County Prosecutor;
RONALD A. EPSTEIN, Salem County Prosecutor;
MELAINE B. CAMPBELL, Acting Somerset County
Prosecutor;
DENNIS O'LEARY, Sussex County Prosecutor;
EDWARD NEAFSEY, Acting Union County Prosecutor;
JOHN J. O'REILLY, Warren County Prosecutor
W.P., et al., Individually and as
Representatives of a Class pursuant
to Fed. R. Civ. P. 23(a) and 23(b)(2),
Appellants in No. 96-5416
(*Amended per Clerk's order of 7/15/96)
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action Nos. 96-cv-00130; 95-cv-00098 and
96-cv-00097)
Argued October 21, 1996
BEFORE: BECKER, STAPLETON and NYGAARD, Circuit Judges
(Opinion Filed August 20, 1997)
Joseph L. Yannotti (Argued)
Rhonda S. Berliner-Gold
Office of Attorney General of
New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellant
Attorney General of New Jersey
No. 96-5132
Judith A. Eisenberg
Office of County Prosecutor
Bergen County
10 Main Street
Justice Center
Hackensack, NJ 07601
Attorney for Appellee
Charles R. Buckley, Acting
Bergen County Prosecutor
No. 96-5132
Gerald R. Salerno (Argued)
Aronsohn & Weiner
263 Main Street
Hackensack, NJ 07601
Attorney for Appellee
E.B. (A Fictitious Name)
No. 96-5132
John J. Gibbons
Lawrence S. Lustberg
James E. Ryan (Argued)
Crummy, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102-5497
and
Michael Z. Buncher
Office of Public Defender
Division of Mental Health
Advocacy
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellants
W.P., et al., Individually and as
Representatives of a Class
Pursuant to Fed. R. Civ. P. 23(a)
and 23(b)(2)
No. 96-5416
Jane D. Plaisted
Office of County Prosecutor
Essex County
50 West Market Street
Essex County Courts Bldg.
Newark, NJ 07102
Attorney for Appellees Blitz,
Buckley, Raymond, Audino, Moore,
Cooper, Minor, Cotton, Messano,
Ransavage, Bielamowicz, Gluck,
Kaye, Murphy, Carluccio, Fava,
Epstein, Campbell, O'Leary,
Neafsey, and O'Reilly
No. 96-5416
Thomas E. Bracken
Office of County Prosecutor
Sussex County
19-21 High Street
Newton, NJ 07860
Attorney for Appellee
Dennis O'Leary
No. 96-5416
Peter Verniero (Argued)
Joseph L. Yannotti
Office of Attorney General of
New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellee
Peter Verniero
Attorney General of New Jersey
No. 96-5416
Ronald K. Chen (Argued)
Rutgers Constitutional Litigation
Clinic
Rutgers University School of Law
15 Washington Street
Newark, NJ 07102
Attorney for Amicus Curiae
ACLU-NJ
No. 96-5416
Faith S. Hochberg (Argued)
Office of United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
and
Leonard Schaitman
Wendy M. Keats
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Attorneys for Amicus Curiae
United States of America
No. 96-5416
Geoffrey S. Berman
Latham & Watkins
885 Third Avenue
New York, NY 10022-4802
Attorney for Amici M. Kanka,
R. Kanka, D. Zimmer, R.
Cunningham, N. Deal, J. Dunn, T.
Fowler, T. Manton, S. Molinari, J.
Saxton and C. Smith
No. 96-5416
OPINION OF THE COURT
TABLE OF CONTENTS
Page
I. INTRODUCTION 6
II. THE MEGAN'S LAW SCHEME 7
III. THE PRIOR PROCEEDINGS 19
IV. THE ROOKER-FELDMAN ISSUE 25
V. THE EX POST FACTO AND DOUBLE JEOPARDY
ISSUES 29
A. The Artway Standard 29
B. The Impact Of Ursery And Hendricks 31
C. Legislative Purpose 37
D. Objective Purpose 39
E. Effects 46
F. Satisfaction Of The Artway Test 53
VI. THE PROCEDURAL DUE PROCESS ISSUES 54
A. Deprivation Of A Liberty Interest 54
B. Standards For Determining The Process Due . 56
C. Allocation Of The Burden Of Persuasion 60
D. Extent Of The State's Evidentiary Burden 64
VII. CONCLUSION 67
STAPLETON, Circuit Judge:
I. INTRODUCTION
On July 29, 1994, Megan Kanka, a seven year old child,
was abducted, raped, and murdered near her home. The
man who confessed to Megan's murder lived in a house
across the street from the Kanka family and had twice been
convicted of sex offenses involving young girls. Megan, her
parents, local police, and the members of the community
were unaware of the accused murderer's history; nor did
they know that he shared his house with two other men
who had been convicted of sex offenses.
By October 31, 1994, New Jersey had enacted the
Registration and Community Notification Laws, Pub. L.
1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) as
part of a ten-bill package collectively referred to as "Megan's
Law." This legislation required registration by those who
had committed certain designated crimes involving sexual
assault and provided for the dissemination of information
about those required to register. Other states followed suit
with their own versions of Megan's Law and Congress
passed a statute requiring a state program of registration
and notification as a condition of receiving certain federal
funds. By May of 1996, forty-nine states had adopted sex
offender registration laws and thirty-two states maintained
some form of community notification program.
We have before us challenges to the constitutionality of
the notification requirements of New Jersey's Megan's Law
based on the Ex Post Facto, Double Jeopardy, and Due
Process Clauses of the United States Constitution. The
issues before us are difficult but relatively narrow. We are
not called upon to decide whether Megan's Law can
constitutionally be applied to one who has committed one
of the designated sex crimes after its enactment, where the
application of the law follows a fair hearing in connection
with the sentencing for that offense. Nor, of course, is it our
responsibility to determine whether the policy judgments
reflected in Megan's Law are prudent ones.
We hold that (1) the notification requirements of Megan's
Law do not constitute state inflicted "punishment" on Tier
2 and Tier 3 registrants for purposes of the Ex Post Facto
and Double Jeopardy Clauses; (2) the Due Process Clause
of the United States Constitution forecloses New Jersey
from placing the burden of persuasion on the registrant in
a proceeding challenging a Tier 2 or Tier 3 classification
and notification plan; and (3) the Due Process Clause
requires the state at such a proceeding to shoulder the
burden of justifying the classification and notification plan
by clear and convincing evidence.
II. THE MEGAN'S LAW SCHEME
A.
Public reaction to Megan's murder was intense, and New
Jersey's governor and legislature responded quickly. By
August 15, 1994, two weeks after the discovery of Megan's
body, bills providing for registration and community
notification had been introduced in the General Assembly.
Two weeks later, the General Assembly declared the bills an
"emergency," allowing them to bypass committee and be
passed the same day.
In the Senate, no registration or notification bills had
been introduced as of August 29, 1994. However, the Law
and Public Safety Committee held a hearing upon pending
legislation that pre-dated Megan's Law and would have
required victim notification on the release of offenders. In
connection with its consideration of that legislation, the
Committee received testimony and/or written reports from,
inter alia, the American Civil Liberties Union, municipal
officials, inmates, state and federal legislators, and the
Attorney General on issues related to sex offender
registration and community notification. Registration and
community notification bills identical to their General
Assembly counterparts were introduced in the Senate on
September 12, 1994. After hearing testimony from the
ACLU, the New Jersey Coalition of Crime Victims, and
corrections officials on September 26, 1994, the Senate Law
and Public Safety Committee revised the bills by: (1)
supplementing the list of crimes which require registration,1
(2) directing the Attorney General to consult with a twelve-
member Advisory Council of experts to establish guidelines
concerning the risk of reoffense, (3) identifying certain
factors material to the determination of risk of reoffense,
and (4) narrowing the scope of community notification. The
Committee then favorably reported the amended versions to
the Senate, see Senate Law & Pub. Safety Comm.,
Statement to Substitute for Senate Bill No. 14 & Assembly
Bill No. 85 (N.J. Sept. 26, 1994), which approved the bills
on October 3. The General Assembly followed suit by
debating and approving the revised bill on October 20,
1994, and Governor Whitman signed it into law on October
31, 1994.
B.
Megan's Law establishes both a registration requirement
and a three-tiered notification program. See Artway v.
Attorney General, 81 F.3d 1235, 1243 (3d Cir. 1996). The
_________________________________________________________________
1. The list of crimes was expanded in order to comply with the federal
registration law, which became effective September 13, 1994, and
conditioned the availability of certain funds upon the creation of a sex
offender registration program. See Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act, Pub. L. No.
103-322, Title XVII, S 170101, 108 Stat. 2038 (1994) (codified at 42
U.S.C. S 14071). On May 17, 1996, the president signed a federal version
of Megan's Law, which added a mandatory notification provision to the
registration requirements. Pub. L. No. 104-145, 110 Stat. 1345 (1996)
(codified at 42 U.S.C. S 14071(d)).
__________________________________________________________________
registration provisions were the subject of this court's
decision in Artway, where we upheld their constitutionality
in the face of ex post facto, double jeopardy, bill of
attainder, due process, equal protection, and vagueness
challenges. We there summarized the operation of the
registration provision:
The registration provision requires all persons who
complete a sentence for certain designated crimes
involving sexual assault after Megan's Law was enacted
to register with local law enforcement. N.J.S.A. 2C:7-
2b(1). Those committing these offenses and completing
all incarceration, probation, and parole before the
Law's enactment must register only if, at the time of
sentencing, their conduct was found to be
"characterized by a pattern of repetitive and compulsive
behavior." Id.
The registrant must provide the following information
to the chief law enforcement officer of the municipality
in which he resides: name, social security number, age,
race, sex, date of birth, height, weight, hair and eye
color, address of legal residence, address of any
current temporary legal residence, and date and place
of employment. N.J.S.A. 2C:7-4b(1). He must confirm
his address every ninety days, notify the municipal law
enforcement agency if he moves, and re-register with
the law enforcement agency of any new municipality.
N.J.S.A. 2C:7-2d to e.
The registration agency then forwards the registrant's
information, as well as any additional information it
may have, to the prosecutor of the county that
prosecuted the registrant. N.J.S.A. 2C:7-4c to d. The
prosecutor, in turn, forwards the information to the
Division of State Police, which incorporates it into a
central registry and notifies the prosecutor of the
county in which the registrant plans to reside. Id. This
information is available to law enforcement agencies of
New Jersey, other states, and the United States.
N.J.S.A. 2C:7-5. The registration information is not
open to public inspection.... Failure of the sex offender
to comply with registration is a fourth-degree crime.
[N.J.S.A. 2C:7-2a.]
81 F.3d at 1243. The registration requirement persists for
a period of 15 years from the date of conviction or the date
of release from a correctional facility, whichever is later. It
is only after this 15 year period that a registrant may make
application to the Superior Court to terminate the
obligation to register. The obligation may be terminated
only upon a persuasive showing that the registrant is not
likely to pose a threat to the safety of others. N.J.S.A. 2C:7-
2f.
C.
The registration information provides a basis for the next
step--notification. The prosecutor of the county where the
sex offender intends to reside and the prosecutor from the
county of conviction use the registration information and
other data to jointly assess the risk of reoffense by the
registered individual. N.J.S.A. 2C:7-8d(1). They determine
whether the sex offender poses a low (Tier 1), moderate
(Tier 2), or high (Tier 3) reoffense risk. N.J.S.A. 2C:7-8c.
Every registrant at least qualifies for Tier 1 treatment,
otherwise known as "law enforcement alert," where
notification extends only to law enforcement agencies likely
to encounter the registrant. N.J.S.A. 2C:7-8c(1). In the case
of those registrants posing a moderate risk of reoffense, Tier
2 notification, or "law enforcement, school and community
organization alert," issues to registered schools, day care
centers, summer camps, and other community
organizations which care for children or provide support to
women and where individuals are likely to encounter the
sex offender. N.J.S.A. 2C:7-8c(2). The high risk registrants
merit Tier 3's "community notification," where members of
the public likely to encounter the registrant are notified.
N.J.S.A. 2C:7-8c(3).
In order to preserve uniformity in the tier classification
and notification process, the state Attorney General, in
consultation with an advisory council, is required to
develop and promulgate guidelines to be consulted by
prosecutors in assessing the degree of risk of reoffense.
N.J.S.A. 2C:7-8a, d. By statute, the guidelines are required
to include the following considerations:
(1) Conditions of release that minimize risk of re-
offense, including but not limited to whether the
offender is under supervision of probation or parole;
receiving counseling, therapy or treatment; or residing
in a home situation that provides guidance and
supervision;
(2) Physical conditions that minimize risk of re-offense,
including but not limited to advanced age or
debilitating illness;
(3) Criminal history factors indicative of high risk of re-
offense, including:
(a) Whether the offender's conduct was found to be
characterized by repetitive and compulsive behavior;
(b) Whether the offender served the maximum term;
(c) Whether the offender committed the sex offense
against a child;
(4) Other criminal history factors to be considered in
determining risk, including:
(a) The relationship between the offender and the
victim;
(b) Whether the offense involved the use of a weapon,
violence, or infliction of serious bodily injury;
(c) The number, date and nature of prior offenses;
(5) Whether psychological or psychiatric profiles
indicate a risk of recidivism;
(6) The offender's response to treatment;
(7) Recent behavior, including behavior while confined
or while under supervision in the community as well as
behavior in the community following service of
sentence; and
(8) Recent threats against persons or expressions of
intent to commit additional crimes.
N.J.S.A. 2C:7-8b.
Pursuant to this statutory delegation of authority, the
Attorney General has developed guidelines for law
enforcement for classification and notification. See
Guidelines for Law Enforcement for Notification to Local
Officials and/or the Community of the Entry of a Sex
Offender into the Community, June 1, 1996 ("Guidelines").
The Attorney General's Guidelines require the prosecutors
to use the Registrant Risk Assessment Scale (the "Scale"),
a numerical scoring system designed with the assistance of
mental health and law enforcement professionals, to
evaluate the degree of risk of the sex offender. See
Registrant Risk Assessment Scale Manual, Oct. 3, 1995
("Manual"). The New Jersey Supreme Court has said of the
creation of the Scale:
A Committee of mental health professionals and legal
experts ... developed the Scale. They examined risk
assessment scales being used in the United States and
Canada. After reviewing the scientific literature, the
Committee selected for inclusion in the Scale those
factors that met two conditions. First, all of the factors
selected had to be empirically supported in the risk
assessment field as criteria positively related to the risk
of re-offense. Second, all of the factors selected had to
be fairly concrete criteria that could be gathered in a
consistent and reliable manner.
In re C.A., 679 A.2d 1153, 1169 (N.J. 1996).
The Scale itself is a matrix with thirteen factors grouped
into four general categories: (1) Seriousness of Offense; (2)
Offense History; (3) Characteristics of Offender; and (4)
Community Support. See Artway, 81 F.3d at 1244.2
_________________________________________________________________
2. The specific factors and their organization are as follows:
Seriousness of Offense--(1) Degree of Force; (2) Degree of Contact;
(3) Age of Victim;
Offense History--(4) Victim Selection; (5) Number of Offenses/
Victims; (6) Duration of Offensive Behavior; (7) Length of Time Since
Last Offense; (8) History of Antisocial Acts;
Characteristics of Offender--(9) Response to Treatment; (10)
Substance Abuse;
Community Support--(11) Therapeutic Support; (12) Residential
Support; and (13) Employment/Educational Stability.
Manual at 6-10; Scale, W.P. App. at 712.
__________________________________________________________________
Guided by the promulgated examples and commentary,
the prosecutors determine whether the registrant poses a
low, moderate, or high risk to the community under each of
the factors and assign zero, one, or three points,
respectively, for each factor. Then the prosecutors multiply
these raw scores by a coefficient, reflective of the relative
weight attributed to the various general categories by the
creators of the Scale; raw scores for factors under
Seriousness of Offense are multiplied by five, under Offense
History by three, under Characteristics of Offender by two,
and under Community Support by one. Prosecutors total
the resulting amounts and place the registrant in the
appropriate tier: Tier 1, low risk--0 to 36 points; Tier 2,
moderate risk--37 to 73 points; and Tier 3, high risk--74
to 111 points. Finally, the prosecutors consider the
applicability of two exceptions:
1) If an offender has indicated that he will reoffend if
released into the community and the available record
reveals credible evidence to support this finding, then
the offender will be deemed to be a high risk of
reoffense regardless of the weighting procedure; and 2)
if the offender demonstrates a physical condition that
minimizes the risk of reoffense, including but not
limited to advanced age or debilitating illness, then the
offender will be deemed to be a low risk of reoffense
regardless of the outcome of the weighting procedure.
Manual at 1; see Artway, 81 F.3d at 1244.
While the class of those who receive notification differs
depending on a registrant's classification, the type of
information distributed is the same regardless of the
classification. The package of information provided includes
the registrant's name, a recent photograph, a physical
description, the offense of conviction, home address, place
of employment or schooling, and a vehicle description and
license plate number. "Those notified under Tier 2 are
informed that the information is not to be shared with the
general public, and every notification must contain a
warning about the criminal consequences of vandalism,
threats and assaults against the registrant or any of his
associates." 81 F.3d at 1244.3
D.
The New Jersey courts have played an active role in
refining and developing the Megan's Law scheme. See In re
G.B., 685 A.2d 1252 (N.J. 1996); In re C.A., 679 A.2d 1153
(N.J. 1996); Doe v. Poritz, 662 A.2d 367 (N.J. 1995). In Doe,
the New Jersey Supreme Court upheld the constitutionality
of Megan's Law and read into the statute and Guidelines
certain additional procedures designed to prevent any
"excessiveness of community notification." 662 A.2d at 381.
First, the Court added the "likely to encounter" the
registrant restriction to Tier 2 notification. Id.4 As a result
of the Doe decision, a prosecutor who has classified a
registrant in Tier 2 must make an "individual
determination" concerning the appropriate institutions and
organizations to include in the notification program he
creates. Id. As articulated in the Guidelines, "[t]he decision
as to which groups should appropriately be notified should
be made on a case-by-case basis, following careful review."
Guidelines at 11. There is no "automatic inclusion of an
organization simply because it is `registered' "with the local
law enforcement agencies; rather, "likely to encounter"
requires "having a fair chance to encounter" the registrant.
Doe, 662 A.2d at 385. The Guidelines interpret the Court's
articulations to mean that the types of interactions which
occur at the location and their attendant circumstances
must demonstrate that contact with the offender is
"reasonably certain." Guidelines at 6-7. They provide, for
example, that if a registrant regularly stops at a gas station
merely to refuel, there would not be a "fair chance to
encounter" him there. Id. at 7.
_________________________________________________________________
3. The typical warning included in notification materials reads:
Any actions taken by you against this individual, including
vandalism of property, verbal or written threats of harm or physical
assault against this person, his or her family or employer will result
in your arrest and prosecution for criminal acts. THIS
INFORMATION IS CONFIDENTIAL!
See, e.g., W.P. App. at 625-27 (emphasis in original).
__________________________________________________________________
4. The statute already provided the "likely to encounter" limitation for
Tiers 1 and 3. N.J.S.A. 2C:7-8c(1), (3).
__________________________________________________________________
Ordinarily, the "critical" factor for " `likely to encounter' is
geography--how close is the institution or organization, in
the case of Tier Two notification, to the offender's residence
or place of work or school." Doe, 662 A.2d at 385. However,
the New Jersey Supreme Court explained:
In some municipalities, not every institution or
organization that would otherwise qualify for
notification may be close enough to warrant same, but
in some cases, ... institutions or organizations in other
municipalities may be close enough. The same
observations can be made for Tier Three notification.
We do not attempt to define the area around the
offender's residence or place of work or school that may
be included within the notification process, and
assume it may differ from one locale to another.
Depending upon the particular offender, factors other
than geography may be considered if they are relevant
to the offender's likely whereabouts, such as an
offender's proclivity for certain locations, and
geographic considerations may be affected by the
nature of the offender's characteristics and the
institution in question, e.g., a repetitive and
compulsive pedophile and a large elementary school.
Id. at 385-86.
Moreover, the Guidelines provide that notification must
be appropriately tailored to reach those members of the
public who are at risk from the particular offender. The
tailoring must include consideration of the relationship
between the registrant and his prior victims. As the
Guidelines suggest, sex offenders who have only victimized
members of their own households may not pose a threat to
most members of the community, and those that have
targeted adult women may be of little risk to children; thus,
the prosecutor may appropriately limit notification as all
registered community organizations are not "likely to
encounter" the offenders in either example.
Doe also added to the Megan's Law scheme a requirement
that the prosecutor provide the registrant with notice of a
Tier 2 or Tier 3 classification and the proposed notification
plan. Id. at 382. The Court insisted that the written notice
describe the manner and details of the notification plan and
inform the registrant of his rights to retain counsel and to
challenge the prosecutor's decisions. However, the Court
"realize[d] that in some cases it may be impossible as a
practical matter to give such notice, or to give it timely, and
in those cases it may be dispensed with." Id. The Guidelines
elaborate on dispensing with the notice requirement:
[I]f a Prosecutor['s] Office does not receive notification
of release of a person determined to be a Tier 3
offender until after the date of release, then, in order to
protect the public, notice to the offender may be
dispensed with. The Prosecutor's Office may apply to
the designated judge for an order allowing notification
to take place without service of notice to the offender,
upon receipt of the judge's order. This may occur, for
example, when an offender who has been civilly
committed is released on short notice by a judge.
Also, cases will arise where registrants will avoid
service of the notice. In those cases, the Prosecutor's
Office may apply to the designated judge for an order
allowing notification to take place without service of
notice to the offender, where the Prosecutor can
demonstrate that every good faith effort was made
within the allotted timeframe to serve the registrant. If
service has not been completed within 3 days of the
date that the tier decision is made, then the Prosecutor
may apply to the court for the order allowing
notification to occur without notice to the registrant.
Guidelines at 17-18.
Finally, Doe required the state to make available a pre-
notification judicial review process for sex offenders who
wish to contest their classification or the notification plan.
662 A.2d at 382. The registrant bears the burden of
persuasion in these summary, in camera proceedings,
where the court decides only whether to affirm or reverse
the prosecutor's determination. Thus, where the state has
met its burden of presenting evidence that "prima facie
justifies the proposed level and manner of notification," the
court will affirm the prosecutor's determination "unless it is
persuaded by a preponderance of the evidence that it does
not conform to the laws and Guidelines." Id. at 383. The
"only issue for the court on the Tier level of notification is
the risk of reoffense;" review of the notification plan largely
involves interpretation and application of the "mandatory"
limits on notification, such as the "likely to encounter"
standard, articulated in the Doe opinion. Id. at 383-84.
Still, the courts are to understand that "the Scale is merely
a tool," In re G.B., 685 A.2d at 1261, and they are
cautioned not to "blindly follow the numerical calculations"
but to make a "case-by-case" determination regarding tier
classification and scope of notification. In re C.A., 679 A.2d
at 1171-72.
The New Jersey Supreme Court has recognized that"a
registrant is entitled to lodge three distinct challenges to his
tier designation":
First, a registrant may introduce evidence that the
calculation that led to the Scale score was incorrectly
performed either because of a factual error, because
the registrant disputes a prior offense, because the
variable factors were improperly determined, or for
similar reasons. Second, a registrant may introduce
evidence at the hearing that the Scale calculations do
not properly encapsulate his specific case; or phrased
differently, a registrant may maintain that his case
falls outside the "heartland" of cases and, therefore,
that he deserves to be placed in a tier other than that
called for by the prosecutor's Scale score. Finally, a
registrant may introduce evidence that the extent of
notification called for by his tier categorization is
excessive because of unique aspects of his case.
Challenges to the Scale itself, or challenges to the
weight afforded to any of the individual factors that
comprise the Scale, are not permitted. Instead, all
challenges must relate to the characteristics of the
individual registrant and the shortcomings of the Scale
in his particular case.
In re G.B., 685 A.2d at 1264.
The registrant's hearing "is civil, not criminal, and
remedial, not adversarial." In re C.A., 679 A.2d at 1164. It
follows the "format . . . for probation violation hearings" in
New Jersey. Id. at 1166. The court possesses broad
discretion over whether and to what extent witnesses and
cross examination will be allowed. Doe, 662 A.2d at 382-83.
Rules of evidence do not apply, and the court may rely on
documentary evidence, such as expert opinions, for all
issues. Id. at 383. Reliable hearsay is admissible. In re C.A.,
679 A.2d at 1165. Moreover, "non-conviction offenses [i.e.,
criminal activities that have not been the subject of a
conviction] are to be considered in evaluating a registrant's
risk of re-offense, provided there is sufficient evidence that
the offense occurred." Id. at 1162.
Where the proof, whether in the form of reliable hearsay,
affidavits, or offers of live testimony, creates a genuine
issue of material fact that the tier designation or manner of
notification is inappropriate, "then the trial court should
convene a fact-finding hearing and permit live testimony."
Id. at 1166. Both sides may use expert testimony, but the
proceedings are not to be converted into "long drawn-out
contests between experts." Doe, 662 A.2d at 384. Thus,
courts must permit registrants to introduce expert
testimony which tends to establish that the Scale does not
properly account for aspects of the registrant's character or
prior offense, where those aspects are relevant and material
to the tier classification, and, in the court's opinion, would
assist in the disposition of the case. In re G.B., 685 A.2d at
1265-66.
E.
In Artway, we sustained the constitutionality of the
provisions of Megan's Law requiring registration and Tier 1
notification. We declined, however, to address the
accompanying constitutional challenge to the provisions
requiring the broader notification authorized for Tier 2 and
Tier 3 classifications. We found that challenge unripe in
large part because the plaintiff there had not been classified
and had not received a notification plan. We also noted that
the record there lacked evidence of the effects of notification
on the community. 81 F.3d at 1250. For purposes of the
ensuing discussion, we will follow the convention
established in our Artway opinion, whereby"registration"
includes Tier 1 notification and "notification" refers to Tier
2 and Tier 3 notification. Artway, 81 F.3d at 1244.
III. THE PRIOR PROCEEDINGS
We have two actions before us: E.B. v. Verniero and W.P.
v. Verniero. They involve identical challenges to Megan's
Law; each alleges that notification violates ex post facto,
double jeopardy, and procedural due process protections
conferred by the United States Constitution. The plaintiffs
in both actions are sex offenders who were convicted of
their offenses prior to the enactment of Megan's Law. The
plaintiff in the individual action, E.B., comes within the
broad language defining the class certified in W.P.,
constituting:
All persons required to register as a sex offender[sic]
pursuant to N.J.S.A. 2C:7-1 et seq. and whose offenses
were committed prior to October 31, 1994, the effective
date of the New Jersey Registration and Community
Notification Laws, and who have been or will be
classified as a tier II or tier III offender.
W.P. v. Poritz, 931 F. Supp. 1187, 1192 (D.N.J. 1996). The
defendants in E.B. are the Attorney General, the local
county prosecutor, and the police chief, while in W.P. they
are the Attorney General and various county prosecutors.
A.
In 1974, E.B. pled guilty in New Jersey Superior Court to
three offenses of sexual abuse against young boys and
received a thirty-three-year sentence. Two years later, he
pled guilty in the Circuit Court in Petersburg, Virginia, to
two separate murders and was sentenced to concurrent
terms of twenty years of incarceration in that state to run
consecutive to the New Jersey sentence. In 1979, after
serving less than six years of his thirty-three-year New
Jersey sentence, E.B. was paroled and extradited to
Virginia to serve the murder sentences. On June 15, 1989,
E.B. was paroled by Virginia. He is now free, subject to
supervised release by the New Jersey Bureau of Parole until
July 23, 2006.
Pursuant to Megan's law, E.B. registered with the
authorities in Englewood, New Jersey. On October 24,
1995, the Bergen County Prosecutor's Office notified E.B.
that he was classified as a Tier 3 sex offender and proposed
to issue notification to "all public and private educational
institutions and organizations within a one-half mile radius
of the Plaintiff 's home, and all parties who resided or
worked within a one block radius of the Plaintiff 's home."
E.B. Complaint at P 13. Upon E.B.'s objection to the
classification and notification, a hearing was held in New
Jersey Superior Court, Law Division. On December 18,
1995, the court ruled that the classification was
appropriate and permitted notification to: (1) 82 public and
private educational institutions, licensed day care centers
and summer camps in Englewood, Teaneck, Bergenfield,
Tenafly, Englewood Cliffs, Leonia and Fort Lee, and (2) all
residences within a one block radius of E.B.'s house. E.B.'s
appeals to the Appellate Division and the State Supreme
Court were unsuccessful, but notification remained stayed
by court order during the pendency of the proceedings.
E.B. then filed his federal action. The district court
entered a preliminary injunction, enjoining the defendants
from implementing notification. E.B. v. Poritz, 914 F. Supp.
85 (D.N.J. 1996). Defendants appeal from that order and a
subsequent order denying their application for a stay of the
preliminary injunction.
B.
Seven plaintiffs filed the initial complaint in W.P. in
January 1996. Two months later, when the court certified
the class, there were 22 representative plaintiffs, all
classified as either Tier 2 or Tier 3 and facing prosecutor's
notification plans ranging in scope from notification of three
schools to notification of all schools, day care centers, and
registered community organizations in the city of Trenton,
as well as all residents within a certain area of the city.
Some of the representative plaintiffs had sought relief from
a state court and were subject to the resulting state court
orders. The district court promptly entered a preliminary
injunction preventing notification for any of the class
members. W.P. v. Poritz, 931 F. Supp. at 1187.5
Thereafter, the court entered summary judgment for the
defendants. W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996).
Plaintiffs filed this appeal from the entry of summary
judgment.
C.
The record in these cases contains affidavits from
registrants and state authorities, the Attorney General's
publications concerning the Scale, registration and
notification data, newspaper articles, and reports from
other jurisdictions maintaining notification programs. The
district court held the plaintiffs' constitutional claims were
ripe for review, and no one has challenged that
determination on appeal.
New Jersey's Administrative Office of the Courts reports
that, as of May 6, 1996, there were 528 registrants
designated as Tier 1; 585 as Tier 2; and 59 as Tier 3; or 45
percent, 50 percent, and 5 percent, respectively, of all
classified registrants. According to the county prosecutors,
as of May 16, 1996, notification was completed for 135 out
of the 644 individuals classified to Tier 2 or Tier 3.
Administrative Office information also indicates that of the
117 registrants who pursued their notification challenges to
a resolution, 62 had their tier levels affirmed. Fifty-two
challenges resulted in changed tier classifications and 13
resulted in modification of the scope of notification.
The record contains anecdotal evidence concerning the
experiences of a total of at least nineteen sex offenders in
New Jersey.6 In only six of these cases had state-compelled
_________________________________________________________________
5. The defendants initially appealed the district court's ruling to this
court, but later withdrew their appeals when the district court entered
summary judgment in their favor in W.P. v. Poritz, 931 F. Supp. 1199
(D.N.J. 1996).
__________________________________________________________________
notification under Megan's Law been carried out. In the
remaining cases, members of the community had received
information about the sex offenders from sources other
than a Megan's Law notification.7 In all the cases, the
sentenced offender had experienced adverse repercussions.
Loss of employment, eviction, and verbal abuse were not
uncommon. Vandalism and threats were experienced but
considerably less frequently. Two registrant affidavits speak
of physical assaults following notification. One registrant
reported being physically attacked on three separate
occasions. In another case, a father and son broke into the
registrant's residence and assaulted a house guest whom
they mistook for the sex offender. Police arrived on the
scene and arrested the assailants, who were later
prosecuted and convicted for criminal trespass.
_________________________________________________________________
6. There is some ambiguity as to the number of individual sex offenders
whose experiences are represented in the record. In some cases, there
are multiple affidavits from family members, landlords, employers, and
attorneys. In a few submissions by these third parties, the sex offender's
name has been redacted or referenced solely by initials, and we cannot
discern whether the information refers to a sex offender already included
in the record. The Attorney General characterizes the evidence as
discussing the "perceptions or experiences of a total of only twenty-one
individual sex offenders," six of whom have been subject to notification.
Appellee-Verniero's Br. at 43. The appellants describe the record as
including "affidavits of twenty-one persons who were affected by the
public disclosure of a prior sex offense." Reply Br. at 17.
Our review reveals 17 affidavits from registrants describing the
community's reaction to the knowledge of the individual's sex offenses.
In addition, there are family member affidavits that clearly identify two
other cases. Hence, we say we have evidence regarding the experiences
of at least 19 sex offenders. The record is, however, clear that
notification has issued for six of these offenders.
7. One such source is the publicity attending a public arrest and trial. A
good example of this is E.B.'s case, where an intense search effort by the
Guardian Angels and others resulted in the publication of his name on
a radio talk show and in numerous flyers. See Richard Cowen, Guardian
Angels Vow to Find `E.B.', The Record, Northern New Jersey, Jan. 26,
1996; Michael Markowitz, Radio Show Airs E.B.'s Name, The Record,
Northern New Jersey, Jan. 28, 1996, at A3; Susan Edelman, Guardian
Angels Warn Residents, The Record, Northern New Jersey, Jan. 29,
1996, at A3. (Although E.B. presses his own claim, his experiences are
also a part of the W.P. record.) Another source is New Jersey's required
notification to victims at the time of the offender's parole consideration
and the time of his release. See N.J.S.A. 30:4-123.45, 123.48; N.J.S.A.
52:4B-44.
__________________________________________________________________
According to law enforcement records, the 135 cases in
which Tier 2 and Tier 3 notifications have been completed
have produced only a single instance of a physical assault
being reported to the authorities--the father and son attack
on the person mistaken for a registrant. In addition, there
was a total of four reports to law enforcement personnel of
threats, harassment, or other offensive actions. In Bergen
County, one Tier 3 registrant contacted the local police
department and reported that his mother's car had been
vandalized. In Somerset County, a juvenile who registered
under Megan's Law reported to police that a harassing note
had been left on his car at school. In Sussex County, the
prosecutor's office received a call from the wife of a Tier 3
registrant who reported that a threatening note had been
mailed to the registrant's home. In Atlantic County, a Tier
2 registrant's employer reported that the local school had
disclosed the employment of the registrant and a boycott
was planned for the employer's restaurant. The police
defused the situation by contacting the potential picketers
and the school's principal, who agreed to speak to his staff
concerning the confidentiality of information received
through notification.
The record also includes information from the
registration and notification experiences of other
jurisdictions. A review of community notification in
Washington state found that of the 176 notifications
completed between March 1990 and March 1993, 14
incidents of harassment were reported, ranging in severity
from multiple incidents of verbal abuse to a death threat
and one assault.8
_________________________________________________________________
8. In the single assault incident, a registrant was "punched in the nose
when he answered his door." Sheila Donnelly & Roxanne Lieb,
Washington's Community Notification Law: A Survey of Law Enforcement
7 (Dec. 1993).
__________________________________________________________________
In addition, the record contains a January 1995 study by
the Oregon Department of Corrections, undertaken to
investigate the impact of the first 14 months of the state's
1993 community notification statute. Even before this
statute, probation and parole officers with a sex offender
under supervision had provided notification to"local police;
immediate and extended family members in contact with
the offender; victims; other residents in the offender's
home; regular visitors to the home; employers; therapists;
Children's Services Division; landlords and apartment
managers; ministers, pastors, and other officials where the
offender attends church; select neighbors; specific
business[es] frequented by the offender; and close
associates to the offender." Oregon Dep't of Corrections, Sex
Offender Community Notification in Oregon at 7 (Jan.
1995). This practice continued after enactment of the
statute requiring notification to "a broader public." As of
the time of the study, there had been 237 notification plans
submitted under the new law. In this context, the Oregon
Department of Corrections reported as follows:
In January 1995, forty-five parole/probation sex
offender specialists from thirty-five counties responded
to a survey of their experience with Community
Notification. These officers were responsible for a total
caseload of 2,160 sex offenders. The following
information was gained from the surveys and [Sex
Offender Supervision] Network discussions:
* * *
Less than 10% of offenders experienced some form of
harassment. Incidents reported included name
calling, graffiti, toilet papering and minor property
vandalism, monitoring of a home by video camera,
repeated reports of unfounded violations to parole/
probation officers, and picketing of residences.
There were two extreme cases of retaliation. One sex
offender had a gun pointed at him and was
threatened. In another case, a victim had tires
slashed and the offender was blamed. Although the
offender passed a polygraph and was accountable for
the time, there were threats made that the offender's
home would be burned down.
* * *
Other circumstances reported by parole/probation
officers included:
Community notification has made it more difficult to
find residences for some sex offenders released from
prison.
* * *
Notification has [affected] employment opportunities
for sex offenders.
* * *
Businesses who were initially willing quietly to
employ a sex offender sometimes do not provide jobs
when the hiring will clearly become public.
Id. at 12-14.
IV. THE ROOKER-FELDMAN ISSUE
There is a threshold jurisdictional issue for decision. The
appellants contend that the district court was without
subject matter jurisdiction under the doctrine articulated
by the Supreme Court in Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983). Section 1257 of Title 28
of the United States Code bestows upon the Supreme Court
of the United States appellate jurisdiction to review final
judgments of the highest courts of the respective states.
The so-called Rooker-Feldman doctrine teaches that, by
negative implication, the inferior federal courts lack subject
matter jurisdiction to review judgments of those courts. We
have interpreted the doctrine to encompass final decisions
of lower state courts as well. See Port Auth. Police
Benevolent Ass'n, Inc. v. Port Auth. of N.Y. & N.J., 973 F.2d
169, 177-78 (3d Cir. 1992).
Appellants point out that E.B. demanded and received
judicial review of the prosecutor's Tier 3 classification and
notification plan and that he advanced federal
constitutional arguments in that proceeding for preventing
the classification and notification plan from being put into
effect. See Tr. Megan's Law Hearing (N.J. Super. Ct. Law
Div. Dec. 7, 1995) at 6-9. The Superior Court, Law Division,
after a hearing, rejected E.B.'s challenge and ordered that
notification be given. E.B. appealed to the Appellate
Division, which affirmed. The Supreme Court of New Jersey
thereafter denied E.B.'s petition for certification of appeal.
As appellants stress, the relief E.B. seeks in this proceeding
is an injunction directing that the notification ordered by
the New Jersey Superior Court, Law Division, not be carried
out.
We agree with appellants that this is a paradigm
situation in which Rooker-Feldman precludes a federal
district court from proceeding. To grant E.B. relief would
require an inferior federal court to determine that the New
Jersey court's judgment was erroneous and would foreclose
implementation of that judgment. See FOCUS v. Allegheny
County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.
1996).
The district court reached a contrary conclusion because
it believed that although E.B. raised constitutional issues,
he "was denied an opportunity to meaningfully raise
constitutional challenges to Megan's Law." 914 F. Supp. at
89 (emphasis supplied). Its belief was based primarily on
the fact that the Supreme Court of New Jersey in Doe had
described a Megan's Law proceeding in the trial court as a
"summary proceeding" and had stated that "the only issue
for the court on the Tier level of notification is the risk of
reoffense." Id. at 89-90; Doe, 662 A.2d at 382-83. This
suggested to the district court that the New Jersey courts
do not consider constitutional challenges in a Megan's Law
proceeding. 914 F. Supp. at 90.
If we shared the belief of the district court that E.B.'s
constitutional challenges were not considered by the New
Jersey courts--and, under Doe, could not be considered by
them--we would also conclude that Rooker-Feldman did not
deprive the district court of jurisdiction. However, we do not
read the Doe opinion as instructing New Jersey courts to
ignore properly raised claims based on the federal
Constitution,9 and it is clear that the New Jersey courts do
_________________________________________________________________
9. Consideration of constitutional issues is not inconsistent with the
expectation of the Doe Court that Megan's Law proceedings in the trial
court will be summary in nature. Once the constitutional issues raised
by that law are authoritatively resolved, they will no longer be a
component of the routine process.
__________________________________________________________________
not so read that opinion. In In re G.B., 669 A.2d 303, 306
(N.J. Super. Ct. App. Div. 1996), aff'd, 685 A.2d at 1252,
the Appellate Division considered constitutional challenges
and rejected them on the merits because these same issues
had been previously considered and rejected in Doe. Shortly
thereafter, the Superior and Supreme Courts of New Jersey,
in appeals from a denial of relief in a Megan's Law
proceeding, addressed constitutional challenges to Megan's
Law for which there was no binding precedent. See In re
C.A., 679 A.2d at 1153. Even if there were not this clear
evidence, however, we would have to "assume that state
procedures will afford an adequate remedy, in the absence
of unambiguous authority to the contrary." Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 15 (1987).
The only remaining issue with respect to E.B. and the
Rooker-Feldman doctrine is whether a litigant can be said to
have a meaningful opportunity to raise an issue in a state
proceeding when the highest court of that state has
rejected, in another litigant's case, the same argument the
litigant wishes to raise. Our answer is in the affirmative.
Rooker-Feldman abstention is necessary to preserve the
United States Supreme Court's appellate jurisdiction--as
well as to limit federal court review of state court decisions
to the avenue provided for such by Congress. See Ernst v.
Child and Youth Services of Chester County, 108 F.3d 486,
491 (3d Cir. 1997). The federal court structure established
by Congress intends that only the Supreme Court have the
opportunity to decide that a state court has reached an
erroneous conclusion on a federal constitutional claim.
Nothing suggests that this structure should be altered
where the state court's decision is based upon what is
already settled precedent in that state.
As we have previously observed, the interests served by
Rooker-Feldman are quite similar to those served by giving
a state court judgment res judicata effect in a subsequent
federal proceeding. Marks v. Stinson, 19 F.3d 873, 885-86
n.11 (3d Cir. 1994); Valenti v. Mitchell, 962 F.2d 288, 297
(3d Cir. 1992). If a litigant resorts to a state court and
suffers an adverse judgment, a lower federal court must
respect that judgment unless and until it is overturned. The
litigant's only remedy is by way of appeal through the state
court system and by way of petition to the Supreme Court
of the United States thereafter.10
We will, accordingly, reverse the judgment of the district
court in E.B.'s case11 and remand with instructions to
dismiss for want of subject matter jurisdiction.
This does not mean, however, that the district court
lacked jurisdiction over the class claims in W.P . As we
concluded in Valenti, 962 F.2d at 298, " Rooker-Feldman
does not bar individual constitutional claims by persons
not parties to earlier state court litigation." In W.P., at least
some of the representative plaintiffs were not the subject of
any kind of judicial order when they filed this suit to secure
injunctive relief against enforcement of Megan's Law.
Indeed, neither they nor the state had petitioned any state
court for any relief. The claims of these class plaintiffs were
sufficient to confer subject matter jurisdiction 12 on the
district court.13
_________________________________________________________________
10. Where, as here, the state Supreme Court exercises its discretion
against review, certiorari will lie from the intermediate appellate court to
the Supreme Court of the United States. See Interstate Circuit, Inc. v.
Dallas, 390 U.S. 676, 678 n.1 (1968); Michigan-Wisconsin Pipe Line Co.
v. Calvert, 347 U.S. 157, 160 (1954).
11. We note that E.B. does not seek to enjoin future proceedings against
him under Megan's Law. Cf. Centifanti v. Nix, 865 F.2d 1422, 1430 (3d
Cir. 1989). Rather he seeks relief from a judicial judgment in a Megan's
Law proceeding that has already terminated. See Valenti, 962 F.2d at
297.
12. As with standing, which also "goes to the subject matter jurisdiction
of the . . . court," Page v. Schweiker, 786 F.2d 150, 153 (3d Cir. 1986),
jurisdiction over the claims of a single representative plaintiff allows a
court to reach the class claims. See Sosna v. Iowa, 419 U.S. 393, 402-03
(1975); see generally Wright & Miller, 7A Federal Practice and Procedure
S 1755 (noting that rule authorizing class actions cannot be construed to
broaden or limit subject matter jurisdiction of district courts).
13. In the district court, the Attorney General asked that W.P. be
dismissed on grounds of Younger abstention. The district court rejected
that contention before entering its preliminary injunction. Although
Younger abstention was raised again in the Attorney General's
interlocutory appeal from the preliminary injunction, that appeal was
withdrawn when the district court entered summary judgment for the
defendants. In the appeal now before us, the Attorney General does not
ask us to abstain from adjudicating the plaintiffs' constitutional claims;
he asks rather that we affirm the district court's adjudication of those
claims in his favor. We have no occasion to review the district court's
disposition of the Younger abstention issues because the "State
voluntarily chooses to submit to a federal forum." Ohio Bureau of
Employment Services v. Hodory, 431 U.S. 471, 480 (1977).
The Sussex County prosecutor, also a defendant in W.P., urges in his
brief that the district court erred in failing to abstain but does not ask
us to remand with instructions to dismiss. Rather, he asks us to affirm
the judgment in his favor if we agree with the district court and to
abstain and "remit the named plaintiffs to the state courts" if we do not.
Appellee-Dennis O'Leary's Br. at 41. Thus, the Sussex County prosecutor
also "voluntarily chooses" to submit to this court's jurisdiction. Hodory,
431 U.S. at 480. Moreover, to the extent that he purports to adopt a
contrary position to that asserted by New Jersey's Attorney General, we
do not believe that he is entitled to do so. Brown v. Hotel & Restaurant
Employees & Bartenders Int'l Union, 468 U.S. 491, 500 n.9 (1984)
(notwithstanding the objection of the New Jersey Casino Commission,
because "the State's Attorney General has . . . agreed to our adjudication
of the controversy, considerations of comity are not implicated, and we
need not address the merits of the Younger abstention claim.").
__________________________________________________________________
V. THE EX POST FACTO AND DOUBLE
JEOPARDY ISSUES
The Ex Post Facto Clause forecloses retroactive
application of a law that "inflicts a greater punishment,
than the law annexed to the crime, when committed."
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). The Double
Jeopardy Clause forbids "multiple punishments for the
same offense." United States v. Halper, 490 U.S. 435, 440
(1989). Accordingly, neither clause is implicated unless the
state has inflicted "punishment." Since no one here
suggests that "punishment" has a different meaning under
one of these clauses than under the other, the critical issue
to which we now turn is whether the notification called for
in situations involving Tier 2 and Tier 3 registrants is
"punishment" for purposes of the Ex Post Facto and Double
Jeopardy Clauses.
A. The Artway Standard
In Artway, when we addressed the issue of whether
registration under Megan's Law constituted "punishment,"
we found no Supreme Court precedent addressing a similar
statutory provision. In order to "divine" a"test for
punishment," we reviewed the Supreme Court case law and
looked for common considerations. 81 F.3d at 1254-63.
Recognizing "that the appropriate `punishment' analysis
depends on the context," we derived an "analytical
framework for this case." Id. at 1261, 1263. Specifically, we
concluded that a "measure must pass a three-prong
analysis--(1) actual purpose, (2) objective purpose, and (3)
effect--to constitute non-punishment." Id. at 1263.
Under this Artway analysis, we first look to whether the
adverse effect on individuals results from a desire on the
part of the legislature to punish past conduct or is a by-
product of a bona fide legislative effort to remedy a
perceived societal problem. "If the legislature intended
Megan's Law to be `punishment,' i.e. retribution was one of
its actual purposes, then it must fail constitutional
scrutiny. If, on the other hand, `the restriction of the
individual comes about as a relevant incident to a
regulation,' the measure will pass this first prong." Id.
(quoting De Veau v. Braisted, 363 U.S. 144, 160 (1960).
The second inquiry--into "objective purpose"--focuses on
the operation of the legislative measure and on whether
analogous measures have traditionally been regarded in our
society as punishment. In Artway, we suggested that there
were three aspects of "objective purpose" that should be
considered by a court before deciding whether the party
challenging the statute has carried its burden of showing
that an objective observer in our society would perceive the
measure as punitive. Id. It is important to consider the
measure's proportionality--whether the remedial purpose of
a legislative measure purporting to be non-punitive can
explain all the adverse effects on those involved. While it is
true that "even remedial sanctions carry the sting of
punishment," id. at 1260 (internal quotation marks
omitted), only if the sting is not "reasonably related" to the
remedial goal would an objective observer be justified in
perceiving a punitive purpose, id. at 1265. It is also
important to consider history. If analogous measures have
traditionally been regarded by our society as "serv[ing]
punitive purposes" and the text and the legislative history
do "not make [the legislature's] plausible remedial purposes
clear," id. at 1257, there is an objective basis for regarding
the measure as punishment. Finally, we noted in Artway
that some measures are intended to have a mixed salutary
and deterrent effect. The examples we gave were taxes on
illegal activities (like possession of drugs) and on activities
that the state concededly wished to discourage. See id. at
1259. Such mixed measures will not be deemed to have an
objectively punitive purpose despite their deterrent purpose
unless that deterrent purpose is an unnecessary
complement to the measure's salutary operation, the
measure is operating in an unusual manner inconsistent
with its historically mixed purposes, or the deterrent
purpose overwhelms the salutary purpose. See id. at 1263.
"The final prong [of the Artway analysis] examines
whether the effects--or `sting'--of a measure is so harsh `as
a matter of degree' that it constitutes `punishment.' " Id. at
1266 (citing California Dep't of Corrections v. Morales, 514
U.S. 499, 509 (1995)). This prong necessarily involves
difficult line-drawing. Unfortunately, the Supreme Court
case law provides only a few fixed points. We know that,
under certain circumstances, the "sting" of incarceration or
forfeiture of one's citizenship is sufficiently extraordinary to
require a finding of punishment, see Miller v. Florida, 482
U.S. 423 (1987); Trop v. Dulles, 356 U.S. 86 (1958), and we
have recently been told that civil commitment of violent sex
offenders does not, see Kansas v. Hendricks, ___ U.S. ___,
117 S. Ct. 2072 (1997).
B. The Impact Of Ursery And Hendricks
There are two recent Supreme Court cases which
potentially bear upon our decision: United States v. Ursery,
116 S. Ct. 2135 (1996), and Kansas v. Hendricks, ___ U.S.
___, 117 S. Ct. at 2072. Appellees insist that after Ursery
and Hendricks, Artway does not provide an appropriate
standard for determining whether Megan's Law notification
constitutes "punishment" for purposes of the Ex Post Facto
and Double Jeopardy Clauses. We disagree.
In Ursery, the Supreme Court held that "civil forfeitures
. . . do not constitute `punishment' for purposes of the
Double Jeopardy Clause" even when the value of the
property forfeited is arguably excessive when compared to
the harm suffered by the government from the conduct
giving rise to the forfeiture. 116 S. Ct. at 2138. The Court
first emphasized that its case law had sharply
distinguished between in rem forfeiture proceedings and in
personam civil fine proceedings. It explained that in the
latter "it is the wrongdoer in person who is proceeded
against . . . and punished" while in the former "it is the
property which is proceeded against, and by resort to a
legal fiction, held guilty and condemned." Id. at 2145
(quoting from Various Items of Personal Property v. United
States, 282 U.S. 577, 580-81 (1931)). Thus, civil forfeitures
are not "criminal punishments because they [do] not
impose a second in personam penalty for the criminal
defendant's wrongdoing." Id. at 2141. Second, the Court
noted, "[c]ivil forfeitures, in contrast to civil penalties, are
designed to do more than simply compensate the
Government. Forfeitures . . . are designed primarily to
confiscate property used in violation of the law, and to
require disgorgement of the fruits of illegal conduct. [For
this reason,] it is virtually impossible to quantify, even
approximately, the nonpunitive purposes served by a
particular civil forfeiture." Id. at 2145. Accordingly, while a
court can determine whether a civil fine has a punitive
component by comparing its size to the harm experienced
by the government, a court is not in a position "to
determine whether a particular forfeiture bears no rational
relationship to the nonpunitive purposes of that forfeiture."
Id.
The holding of Ursery is a narrow one limited to civil
forfeitures. Neither of the principal rationales supporting its
conclusion is pertinent here and we find nothing in the
Court's reasoning that is inconsistent with the Artway
standard.14 It necessarily follows that Ursery provides no
_________________________________________________________________
14. To the contrary, we believe the Court's opinion in Ursery confirms,
directly or indirectly, that, inter alia, (1) measures motivated by
retributive animus are punishment, (2) even when the legislative action
is not so motivated, an adverse consequence resulting from an in
personam proceeding may be punishment if it is disproportionate to the
remedial goal which the measure purports to pursue, and (3) measures
that have traditionally been regarded as nonpunitive are not punishment
in the absence of a retributive motive. If we considered ourselves free to
disregard the Artway standard, we would be required, once again, to
"divine" a "test for punishment" by looking for common considerations in
essentially the same set of Supreme Court precedents. Artway, 81 F.3d
at 1254. With the one exception noted hereafter in the text, we see no
reason to believe our result would be materially different if we repeated
that process.
__________________________________________________________________
justification for abandoning that standard. See Third
Circuit Internal Operating Procedures 9.1.
After the district court's decision in these cases, the
Supreme Court decided Kansas v. Hendricks, 117 S. Ct. at
2072. The Court there upheld a Kansas statute that
provides for the civil commitment of "sexually violent
predators." See Kan. Stat. Ann. S 59-29a01 et seq. Under
the statute, a person convicted or charged with a violent
sexual offense and suffering from a "mental abnormality or
personality disorder which makes the person likely to
engage in the predatory acts of sexual violence," S 59-
29a02(a), may be confined to state custody for "control,
care and treatment until such time as the person's mental
abnormality or personality disorder has so changed that the
person is safe to be at large," S 59-29a07(a). Prior to Leroy
Hendricks' scheduled release from prison, the state invoked
the statute to have him confined as a sexual predator.
Hendricks, who had an extensive history of molesting
children, challenged the act on substantive due process, ex
post facto, and double jeopardy grounds. The Supreme
Court rejected all three claims and held that the state's
involuntary commitment program did not constitute
punishment for the purpose of ex post facto or double
jeopardy.
Like Ursery, Hendricks does not establish "a single
`formula' " for identifying which legislative measures
constitute punishment and which do not. Morales , 514 U.S.
at 509. However, the context involved in Hendricks--civil
commitment of sex offenders--is, obviously, more closely
related to the context involved here than was the context of
Ursery. In determining the continuing viability of Artway,
therefore, we must give careful consideration to how
Hendricks addressed the question of whether civil
commitment is punishment. We find substantial overlap
between the factors relied on in Hendricks and those that
comprise the Artway test and we discern no need to
abandon (or overhaul) Artway.
The Court's analysis in Hendricks begins by inquiring
into "the legislature's stated intent," 117 S. Ct. at 2082,
just as Artway directs that we begin with the legislature's
actual purpose. The Court found Kansas' placement of the
challenged provision in the probate code instead of the
criminal code, and the legislature's description of its
creation as a "civil commitment procedure," to be evidence
of the legislature's "disavow[ing] any punitive intent." Id. at
2082, 2085. "Nothing on the face of the statute suggest[ed]
that the legislature sought to create anything other than a
civil commitment scheme designed to protect the public
from harm." Id. at 2082.
Hendricks then goes beyond the legislature's stated intent
to consider additional factors, including those factors
Artway incorporates into its objective purpose prong. Like
Artway's inquiry into proportionality, Hendricks repeatedly
describes how the Kansas statute is tailored to achieve its
remedial purpose of protecting the public. The Court
observes that prior criminal conduct is appropriately
examined for the narrow evidentiary purpose of predicting
dangerousness. See id. The Court also notes that Kansas
"limited confinement to a small segment of particularly
dangerous individuals," id. at 2085, and that those affected
individuals do not "remain confined any longer than [they]
suffer[ ] from a mental abnormality rendering [them] unable
to control [their] dangerousness," id. at 2083. As the Court
recognizes, "[f]ar from any punitive objective, the
confinement's duration is instead linked to the stated
purposes of the commitment, namely, to hold the person
until his mental abnormality no longer causes him to be a
threat to others." Id. Finally, the Court observes that the
individuals are subject only to the conditions placed on any
involuntarily committed person in a state mental institution
and not to the "more restrictive conditions" placed on state
prisoners. Id. at 2082.
Hendricks, like Artway, relied heavily on history. In the
Court's view, the confinement involved is "one classic
example" in a long history of measures restricting the
freedom of the dangerously mentally ill--legislative
initiatives which have been consistently held to be
nonpunitive. Id. at 2083. The Court specifically analogized
the Kansas confinement to the quarantines of those
afflicted with highly contagious diseases, and recognized
that it has "never held that the Constitution prevents a
State from civilly detaining those for whom no treatment is
available, but who nevertheless pose a danger to others."
Id. at 2084.
There is also support in Hendricks for Artway's inquiry
into the relationship between a "mixed" measure's salutary
and deterrent purposes. Hendricks discusses the multiple
purposes of the Kansas statute, including incapacitation of
dangerous sex offenders as well as their treatment, and
concludes that the statute would not constitute
punishment even if providing treatment were merely an
"ancillary purpose"--and not the "primary" purpose--for
passing the statute. Id. This is consistent with Artway's
allowance that a measure can be non-punitive even when it
does not have solely "salutary" purposes such as treatment.
Though Hendricks does not explicitly discuss what
Artway calls the "effects prong," we find nothing in
Hendricks inconsistent with Artway's direction to examine
what the challenged measure actually does to the affected
individuals. This is not to say, of course, that Hendricks
lacks implications for the application of the effects prong.
The Court held that potentially indefinite civil commitment
of dangerous sex predators is not punishment. This
provides a new and important "fixed point" that is of
great utility in determining on which side of the
punitive/nonpunitive line to place community notification.
Although Hendricks thus does not suggest to us that any
of the considerations identified as relevant in Artway are no
longer relevant to a challenge based on the Ex Post Facto
and Double Jeopardy Clauses, we do discern a teaching in
Hendricks that we do not discern in the Supreme Court
case law preceding Artway. In the course of holding that
Kansas' Sexually Violent Predator Act "does not impose
punishment," id. at 2086, the Hendricks Court made the
following cogent observation regarding the deference that
must be accorded to the legislature's judgment as to
whether its action is remedial:
Although we recognize that a "civil label is not always
dispositive," Allen [v. Illinois , 478 U.S. 364, 369 (1986)],
we will reject the legislature's manifest intent only
where a party challenging the statute provides "the
clearest proof " that "the statutory scheme[is] so
punitive either in purpose or effect as to negate[the
State's] intention" to deem it "civil." United States v.
Ward, 448 U.S. 242, 248-249, 100 S. Ct. 2636, 2641,
65 L.Ed.2d 742 (1980).
Id. at 2082.
As we pointed out in Artway, the Supreme Court had
previously required this degree of deference only in cases
where the issue before it was "whether a proceeding is
effectively criminal so that the procedural protections of the
Fifth and Sixth Amendments must apply" in that
proceeding. Artway, 81 F.3d at 1262 n.26. After Hendricks,
however, it seems clear that similar deference to the
legislative judgment is required whenever legislative
measures are challenged on the basis of the Ex Post Facto
and Double Jeopardy Clauses.15 While the Hendricks Court
did characterize Hendricks' claim at one point as an
"argument . . . that the Act establishes criminal
proceedings," 117 S. Ct. at 2081, the issue before the Court
_________________________________________________________________
15. This aspect of Hendricks was foreshadowed in Ursery where, as we
have noted, the Court entertained a double jeopardy challenge to federal
civil forfeiture legislation. After concluding that Congress had not
intended the legislation as punitive, the Court observed:
Moving to the second stage of our analysis, wefind that there is
little evidence, much less the "clearest proof " that we require,
suggesting that forfeiture proceedings under 21 U.S.C. SS 881(a)(6)
and (a)(7), and 18 U.S.C. S 981(a)(1)(A), are so punitive in form and
effect as to render them criminal despite Congress' intent to the
contrary.
Ursery, 116 S. Ct. at 2148 (internal quotation marks and citations
omitted).
__________________________________________________________________
was whether the Act imposed "punishment" for purposes of
the Ex Post Facto and Double Jeopardy Clauses, and the
Court's holding was that the Act did not.
Accordingly, in Artway terms, if we determine that the
actual legislative purpose was remedial, we must sustain
Megan's Law against the current challenges unless its
objective purpose or its effect are sufficiently punitive to
overcome a presumption favoring the legislative judgment.
C. Legislative Purpose
As we have indicated, in Artway we addressed only
whether Tier 1 registrants under Megan's Law are subjected
to punishment--that is, whether being required to register,
and having the resulting disclosures available to law
enforcement personnel, constitute punishment. In that
context, we determined "whether the legislature's actual
purpose [when enacting Megan's Law] was to punish."
Artway, 81 F.3d at 1264. Looking to the statute's own
statement of purpose 16 and the scant legislative history, 17
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16. The Legislature finds and declares:
a. The danger of recidivism posed by sex offenders and offenders
who commit other predatory acts against children, and the dangers
posed by persons who prey on others as a result of mental illness,
require a system of registration that will permit law enforcement
officials to identify and alert the public when necessary for the
public safety.
b. A system of registration of sex offenders and offenders who
commit other predatory acts against children will provide law
enforcement with additional information critical to preventing and
promptly resolving incidents involving sexual abuse and missing
persons.
N.J.S.A. 2C:7-1; Artway 81 F.3d at 1264.
17. The only other legislative history is the following statement that
accompanied the bill when it was introduced in the state senate:
Heinous crimes have been committed against children after [sex
offenders'] release from incarceration. The most recent case involves
the tragic rape and murder of seven-year-old Megan Kanka of
Hamilton Township by a neighbor who had committed sex offenses
against children. Residents of the neighborhood had no knowledge
of the man's criminal history.
Because sex offenders are likely to be unsusceptible to the "cures"
offered by the prison system, the urges that cause them to commit
offenses can never be eliminated but merely controlled. The danger
posed by the presence of a sex offender who has committed violent
acts against children requires a system of notification to protect the
public safety and welfare of the community.
Senate Bill No. 14 (N.J. Sept. 12, 1994); Artway , 81 F.3d at 1264.
__________________________________________________________________
we found that the legislative purpose of Megan's Law was to
identify potential recidivists and alert the public when
necessary for the public safety, and to help prevent and
promptly resolve incidents involving sexual abuse and
missing persons. We then noted that "[p]rotecting the
public and preventing crimes are the types of purposes [the
Supreme Court has] found `regulatory' and not punitive."
Id.; see also De Veau, 363 U.S. at 160. We therefore
concluded that the restrictive provisions of Megan's Law
passed the "actual purpose" test.
Since in Artway we were only dealing with a challenge to
registration, we were not required to definitively resolve the
legal question of the actual purpose of notification.18
__________________________________________________________
18. Appellants assert that all we determined in Artway was that the
actual purpose of registration is remedial; they claim we said nothing
about the legislative purpose for notification. They are mistaken. In
Artway, we used what appeared to us to be the nonpunitive actual
purpose of notification as the predicate for determining that the
motivation for registration is remedial as well. See 81 F.3d at 1264 ("[I]f
the legislature's actual purpose in notification was remedial, it is hard to
imagine that its purpose in the predicate and less harsh step of
registration was punitive.").
__________________________________________________________________
However, the record evidence of legislative intent is exactly
the same for both registration and notification. Nothing has
been called to our attention that causes us to change the
conclusion we reached in Artway regarding this evidence.
While the appellants view the context in which Megan's Law
was enacted as indicative of a punitive intent, wefind it
entirely consistent with its declared remedial purpose.
Accordingly, we have no basis for questioning the
legislature's declared purpose, which is remedial and devoid
of any indication of an intent to punish. We must give
substantial deference to that judgment.
D. Objective Purpose
In Artway, we concluded that registration and Tier 1
notification of law enforcement personnel was fully
explained by the nonpunitive, legislative purpose. We
explained:
Here, the solely remedial purpose of helping law
enforcement agencies keep tabs on these offenders fully
explains requiring certain sex offenders to register.
Registration may allow officers to prevent future crimes
by intervening in dangerous situations. . . . [T]he
registrant may face some unpleasantness from having
to register and update his registration[, b]ut the
remedial purpose of knowing the whereabouts of sex
offenders fully explains the registration provision . . . .
And the means chosen--registration and law
enforcement notification only--is not excessive in any
way. Registration, therefore, is certainly "reasonably
related" to a legitimate goal: allowing law enforcement
to stay vigilant against possible re-abuse.
81 F.3d at 1265.
The issue now before us is whether the provisions of
Megan's Law that call for dissemination of information
about registrants beyond law enforcement personnel are
also fully explained by the nonpunitive, legislative purpose.
In addressing this issue, there is a lesson in the above-
quoted portion of Artway that we must keep in mind. The
relevant issue is whether these provisions are " `reasonably
related' to a legitimate goal." Nothing in Artway or the
Supreme Court cases upon which it relies requires a perfect
fit between end and means. Nor does anything in Ursery or
Hendricks. An absence of remedial, objective purpose is not
demonstrated by pointing out that the legislature did not
address what might be perceived as another aspect of the
same problem or that there may be a means of serving the
legislative end that would be more effective than the means
chosen. If a reasonable legislator motivated solely by the
declared remedial goals could have believed the means
chosen were justified by those goals, then an objective
observer would have no basis for perceiving a punitive
purpose in the adoption of those means.
We conclude that the Tier 2 and 3 dissemination of
information beyond law enforcement personnel is
reasonably related to the nonpunitive goals of Megan's Law.
As we have already indicated, these goals include
identifying potential recidivists, notifying those who are
likely to interact with such recidivists to the extent
necessary to protect public safety, and helping prevent
future incidents of sexual abuse. The fundamental premise
of Megan's Law is that registration and carefully tailored
notification can enable law enforcement and those likely to
encounter a sex offender to be aware of a potential danger
and "to stay vigilant against possible re-abuse." Id. This is
not an unreasonable premise.
Moreover, these goals have not been pursued in a way
that has imposed a burden on registrants that clearly
exceeds the burden inherent in accomplishment of the
goals. The statutory scheme is a measured response to the
identified problem that does not subject all registrants to
dissemination of information beyond law enforcement
personnel. The Guidelines call for a risk assessment based
on objective criteria, all of which might reasonably be
perceived as relevant to the degree of risk presented by
each registrant. This risk assessment is utilized to
determine the maximum scope of the notification
concerning the registrant. In the case of Tier 1 registrants,
who comprise over 45% of those required to register,
dissemination is limited to law enforcement personnel. In
the case of the moderate risk registrants in Tier 2, who
comprise 50% of those evaluated, dissemination is limited
to those in the community who have responsibility for, or
provide support to, those who are most likely to be
victimized if the registrant recidivates. Even with respect to
the 5% of registrants determined to pose higher risk, there
is no unlimited public dissemination. Under the Guidelines,
information is disseminated only to those who are
"reasonably certain" to encounter the registrant.
Appellants nevertheless insist that the remedial goal of
Megan's Law does not fully justify the means selected.
First, they point to the fact that risk assessment under the
Guidelines is based primarily on the registrant's past
behavior. Past criminal conduct is the basis for 90 of the
possible 111 points in the Registrant Risk Assessment
Scale. Id. at 1266 n.30. According to appellants, this Scale
fails to take sufficient account of treatment or other positive
changes in a registrant's life. They conclude that"the reach
of this law will necessarily be excessive, encompassing
those who do not actually pose a genuine risk of re-
offense." Appellants' Br. at 41. However, the non-existence
of a perfect predictor of recidivism should not preclude
legislative resort to a rationally based instrument of risk
assessment, developed and validated by mental health
professionals. The most appellants have done is to suggest
that a more effective predictor might be devised; that is not
enough to make the objective purpose of the predictor
adopted a punitive one.19
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19. As the Court expressly recognized in Hendricks, "[p]revious instances
of violent behavior are an important indicator of future violent
tendencies." 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312, 323
(1993)).
__________________________________________________________________
Appellants further suggest that the information
disseminated is often excessive in light of the stated
remedial aims. The information disseminated with respect
to a Tier 2 or Tier 3 registrant includes his or her name,
description, recent photograph, address, place of
employment or schooling, and a description of any vehicle
used by him or her along with its license number.
Appellants point out that some of this information will
sometimes be unnecessary. "[F]or example, if the registrant
works 20 or 30 miles from his home, the registrant's
neighbor who receives notification is not `likely to
encounter' the registrant at his place of employment.
Likewise, those who live near the same registrant's place of
employment are not `likely to encounter' the registrant at
his home. Yet in both instances, notification includes the
same information . . . ." Id.
We are not persuaded. First, information that an offender
does not spend all of his time in the vicinity, but does have
a residence or a place of employment/school elsewhere,
may indeed serve a remedial purpose in helping individuals
know when it is that they are "likely to encounter" the
offender. Moreover, even if this were not so, a decision not
to expend the resources necessary to tailor each notice to
the circumstances of the person receiving notice is hardly
inconsistent with good faith pursuit of the declared
remedial purposes.
Having found a reasonable "fit" between end and means,
we turn to historical precedent. To appellants, the
dissemination of information beyond law enforcement
personnel is closely analogous to the well-recognized
historical punishments of public shaming, humiliation and
banishment as those practices were employed in colonial
times. We rejected a very similar argument in United States
v. Criden, 648 F.2d 814 (3d Cir. 1981). There, the district
court had denied the media the right to copy, for
rebroadcast, video and audio tapes admitted into evidence
and played to the jury during a criminal trial. In support of
its decision to foreclose post-trial dissemination of public
record information to the public, the district court made the
following observation:
The greater and more widespread the publicity about
a particular criminal case, the more likely it is that
penalties not prescribed by the law will be visited upon
the accused and, more importantly, upon innocent
relatives and friends. . . .
Given the nature of our society these side effects are
inevitable; indeed, it can be argued that they form an
important, if unofficial, part of the sanctions imposed
by society upon lawbreakers. The unfortunate fact is,
however, that these side effects are not uniformly
visited upon persons accused of violating the law. And,
since they are not an official part of the criminal justice
process, and are beyond the reach of that process,
there is probably no acceptable way of ensuring
uniformity of application.
Id. at 824 (quoting United States v. Criden, 501 F. Supp.
854, 860 (E.D. Pa. 1980)). In pursuing this theme, the
district court likened the proposed rebroadcast to placing
the defendant in public stocks.
We rejected the tendered analogy:
Nor can we accept the [district] court's strained
analogy of rebroadcast to "parading a convicted
defendant through the streets, or holding him up to
public ridicule by exhibiting him in a cage or in the
stocks." 501 F. Supp. at 860.
Id. at 825. Nor can we accept the suggested analogy
between notification's re-publication of information publicly
available at the time of a sex offender's trial and the holding
of a convicted defendant up to public ridicule. Public
shaming, humiliation and banishment all involve more than
the dissemination of information. State dissemination of
information about a crime and its perpetrators was
unnecessary in colonial times because all in the colonial
settlement would have knowledge of these matters. Rather,
these colonial practices inflicted punishment because they
either physically held the person up before his or her fellow
citizens for shaming or physically removed him or her from
the community.
The "sting" of Megan's Law for Tier 2 and 3 registrants
results not from their being publicly displayed for ridicule
and shaming but rather from the dissemination of accurate
public record information about their past criminal
activities and a risk assessment by responsible public
agencies based on that information. This distinction makes
a substantial difference when one looks for the relevant
historical understanding of our society. Dissemination of
information about criminal activity has always held the
potential for substantial negative consequences for those
involved in that activity. Dissemination of such information
in and of itself, however, has never been regarded as
punishment when done in furtherance of a legitimate
governmental interest.
When there is probable cause to believe that someone
has committed a crime, our law has always insisted on
public indictment, public trial, and public imposition of
sentence, all of which necessarily entail public
dissemination of information about the alleged activities of
the accused. As this court has explained, we insist upon
this public dissemination for a number of reasons: It
"heightens public respect for the judicial process," it
"permits the public to . . . serve as a check upon the
judicial process," and it "plays an important role in the . . .
free discussion of governmental affairs." Publicker
Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.
1984) (internal quotation marks omitted). Wholly
independent of the criminal sanctions that conviction may
entail, the consequences of our law requiring this public
dissemination of information can be severe. In every case,
a conviction becomes a matter of public record, and in
many cases that conviction may receive widespread media
attention. Depending upon the crime and the
circumstances, information disseminated as a result of our
insistence on public prosecution may be the source of a
wide range of adverse consequences for the convicted
defendant, running from mild personal embarrassment to
social ostracism and/or vigilante retribution. Employment
may be lost, and the opportunity for future employment
may be dramatically reduced. It may take a lifetime of effort
on the part of a convicted defendant to restore previously
existing relationships with those with whom he deals
personally, and restoration of his reputation among others
may never occur. Nevertheless, our laws' insistence that
information regarding criminal proceedings be publicly
disseminated is not intended as punishment and has never
been regarded as such.
We believe the required dissemination of information
generated by our criminal justice system and the
subsequent dissemination of "rap sheet" information to
regulatory agencies, bar associations, prospective employers
and interested members of the public 20 constitute far more
_________________________________________________________________
20. New Jersey law specifically guarantees public access to all court
records, including those concerning criminal prosecutions. See Doe, 662
A.2d at 407 (citing Executive Order No. 123). Moreover, as the New
Jersey Supreme Court noted in Doe, any person, under New Jersey law,
"may obtain a complete criminal history from the State Police by
providing a name and either date of birth or social security number and
paying a fifteen dollar fee." Id.
__________________________________________________________________
compelling analogies than the stocks, cages, and scarlet
letters referenced by appellants. 21
_________________________________________________________________
21. "Rap Sheets" are less readily available today than in days past, but
this reflects a policy judgment about the appropriate balance between
the defendant's interest in getting a new start and the interest of others
who might find "Rap Sheet" information relevant to their decision
making. See Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 764-65 (1989) (observing federal and state statutory
and regulatory limitations on access to "Rap Sheets"). It does not reflect
a general understanding that the dissemination of "Rap Sheet"
information by the government is additional punishment.
While the Supreme Court recognized in Reporters Committee that "Rap
Sheets" are protected under the privacy-for-law-enforcement-records
exemption to the Freedom of Information Act, 5 U.S.C. S 552(b)(7)(C),
such protection reflects a Congressional policy judgment, not federal
Constitutional law. See id. at 762 n.13. The Court explained:
The question of the statutory meaning of privacy under the FOIA
is, of course, not the same as the question whether a tort action
might lie for invasion of privacy or the question whether an
individual's interest in privacy is protected by the Constitution. See,
e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
(Constitution prohibits State from penalizing publication of name of
deceased rape victim obtained from public records); Paul v. Davis,
424 U.S. 693, 712-714 (1976) (no constitutional privacy right
affected by publication of name of arrested but untried shoplifter).
Id.
__________________________________________________________________
We also agree with appellees that various forms of state
warnings about threats to public safety provide more apt
analogies to Tier 2 and Tier 3 notification than the
referenced colonial practices. In order to provide members
of the public with an opportunity to take steps to protect
themselves, the government has traditionally published
appropriate warnings about a range of public hazards.
Posters warning that a pictured individual is abroad in the
community and to be regarded as armed and dangerous
come most readily to mind. But there are others as well.
The state has traditionally, for example, posted quarantine
notices when public health is endangered by individuals
with infectious diseases. Cf. Hendricks, 117 S. Ct. at 2084
("A State could hardly be seen as furthering a`punitive'
purpose by [isolating] persons inflicted with a[ ] highly
contagious disease.").22 Significantly, these warnings
communicate not only facts about past events but also the
fact that a public agency has found a significant future risk
based on those events.
_________________________________________________________________
22. Other examples are provided by the New Jersey statutes requiring
public notice when an adult inmate is considered for parole and notice
to victims upon a defendant's release from incarceration. See N.J.S.A.
30:4-123.48g & 123.45b(5); N.J.S.A. 52:4B-44b(21).
__________________________________________________________________
Whenever these state notices are directed to a risk posed
by individuals in the community, those individuals can
expect to experience embarrassment and isolation.
Nevertheless, it is generally recognized that the state has a
right to issue such warnings and the negative effects are
not regarded as punishment. Because the closest analogies
have not historically been regarded as punishment, we
conclude that historical precedent does not demonstrate an
objective punitive purpose.
Finally, we turn to the third consideration involved in
assessing objective purpose. That consideration, as we
understand it, is a savings provision--that is, even if the
remedial purpose of a measure cannot fairly be said to
justify all of its aspects, it will nevertheless be found
nonpunitive if measures of this type, like taxes, have
traditionally served both remedial and deterrent purposes
and the particular measure before the court serves such
purposes in a manner consistent with its analogous
antecedents. Having concluded that the remedial purpose
of Megan's Law justifies all of its aspects, it necessarily
follows in this case, as it did in Artway, 81 F.3d at 1266,
that this third consideration does not counsel in favor of a
finding that it is punitive.
E. Effects
As we have indicated, we hypothesized in Artway that "a
law [could] constitute unconstitutional `punishment'
because of its effects" even where no actual or objective
punitive purpose is shown. 81 F.3d at 1260. We explained:
[An] examination of effects, like the Austin [v. United
States, 509 U.S. 602 (1993),] inquiry into history, is
necessary to limit what would otherwise be the
untenable results of the De Veau subjective purpose
inquiry and the Halper means-end calculus. While even
a substantial "sting" will not render a measure
"punishment," . . . at some level the "sting" will be so
sharp that it can only be considered punishment
regardless of the legislators' subjective thoughts.
Id. at 1261.
It is clear from Artway, however, that for the effects of a
measure to render it "punishment," those effects must be
extremely onerous. Even deprivation of one's livelihood is
not sufficiently onerous. Flemming v. Nestor , 363 U.S. 603
(1960) (termination of social security benefits); Hawker v.
New York, 170 U.S. 189 (1898) (revocation of license to
practice one's profession). Moreover, while Artway's third
prong serves as an independent hurdle that a legislative
measure must surmount, when it is applied, the burden
imposed must still be evaluated in the light of the
importance of any legitimate governmental interest served.
The only examples the case law suggests of effects
sufficiently onerous are deprivation of one's United States
citizenship that leaves one a "stateless person" and a
complete deprivation of personal freedom (i.e.,
incarceration). Even these deprivations are not per se
punishment, however. While in some circumstances
making one a "stateless person" is punishment,
denaturalization as a remedy for citizenship fraudulently
obtained is regarded not as punishment but as a necessary
part of regulating naturalization of aliens. See Trop, 356
U.S. at 98. Even incarceration is not always punishment.
Pre-trial detention and post-sentence civil commitment of
dangerous offenders have both been expressly found to be
nonpunitive measures when justified by important state
interests. See United States v. Salerno, 481 U.S. 739 (1987);
Hendricks, 117 S. Ct. at 2072.
The direct effects of Megan's Law clearly do not rise to
the level of extremely onerous burdens that sting so
severely as to compel a conclusion of punishment. All
Megan's Law mandates is registration and notification.
Under Megan's Law, New Jersey has not deprived
appellants of their freedom or their citizenship. The state
has imposed no restrictions on a registrant's ability to live
and work in a community, to move from place to place, to
obtain a professional license or to secure governmental
benefits.
What concerns registrants, however, are the indirect
effects: Actions that members of the community may take
as a result of learning of the registrant's past, his potential
danger, and his presence in the community. People interact
with others based on the information they have about
them. Knowing that someone is a convicted sex offender
and has been evaluated as a continuing risk is likely to
affect how most people treat that person.
There can be no doubt that the indirect effects of Tier 2
and Tier 3 notification on the registrants involved and their
families are harsh. The record documents that registrants
and their families have experienced profound humiliation
and isolation as a result of the reaction of those notified.
Employment and employment opportunities have been
jeopardized or lost. Housing and housing opportunities
have suffered a similar fate. Family and other personal
relationships have been destroyed or severely strained.
Retribution has been visited by private, unlawful violence
and threats and, while such incidents of "vigilante justice"
are not common, they happen with sufficient frequency and
publicity that registrants justifiably live in fear of them. It
also must be noted that these indirect effects are not short-
lived. While there are suggestions in the record that the
circumstances of a registrant may stabilize as time passes
after notification, the statute permits repeat notification
over a period of many years.
The primary sting from Megan's Law notification comes
by way of injury to what is denoted in constitutional
parlance as reputational interests. This includes the
burdens of isolation, harassment, loss of opportunities, and
the myriad of more subtle ways in which one is treated
differently by virtue of being known as a potentially
dangerous sex offender. The other type of indirect effect is
exposure to an increased risk of private violence that can
result in damage to one's property or injury to one's person.
We will focus on each class of indirect effects in turn.
Injury to reputation has traditionally been regarded in
our society as a serious matter. Our law of defamation has
from our earliest days protected reputation and provided
compensation for wrongful injury to reputational interests.
It has provided recourse, for example, for those whose
reputations are injured by false allegations of criminal
activity. At the same time, however, reputational interests
have not been accorded the same level of protection in our
society as interests that have been found "implicit in the
concept of ordered liberty." Paul v. Davis , 424 U.S. 693,
713 (1976).
In Paul v. Davis, law enforcement officials decided to alert
local area merchants to possible shoplifters who might be
operating during the Christmas season. They distributed a
"flyer" to 800 merchants which contained the name and
"mug shot" photo of individuals described as"Active
Shoplifters." Davis, who had previously been arrested for--
but never convicted of--shoplifting was included.
Davis brought a civil rights action against the law
enforcement officials arguing that, by destroying his
reputation in the community, they had violated his"right to
privacy guaranteed by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments." Id. at 712. Though
acknowledging that the Constitution secures a right to
personal privacy, the Supreme Court rejected the notion
that Davis' interest in his reputation was sufficiently
fundamental to come within that constitutional right. The
Court observed:
In Roe [v. Wade, 410 U.S. 113 (1973)], the Court
pointed out that the personal rights found in this
guarantee of personal privacy must be limited to those
which are "fundamental" or "implicit in the concept of
ordered liberty" as described in Palko v. Connecticut,
302 U.S. 319, 325 (1937). The activities detailed as
being within this definition were ones very different
from that for which respondent claims constitutional
protection--matters relating to marriage, procreation,
contraception, family relationships, and child rearing
and education. In these areas it has been held that
there are limitations on the States' power to
substantively regulate conduct.
Respondent's claim is far afield from this line of
decisions. He claims constitutional protection against
the disclosure of the fact of his arrest on a shoplifting
charge. His claim is based, not upon any challenge to
the State's ability to restrict his freedom of action in a
sphere contended to be "private," but instead on a
claim that the State may not publicize a record of an
official act such as an arrest. None of our substantive
privacy decisions hold this or anything like this, and we
decline to enlarge them in this manner.
Id. at 713.
The indirect effects experienced by Tier 2 and Tier 3
registrants, while quite likely more profound than those
complained of by Davis, are clearly of a similar nature. Just
as Davis sought constitutional protection from the
consequences of state disclosure of the fact of his
shoplifting arrest and law enforcement's assessment that he
was a continuing risk, so registrants seek protection from
what may follow disclosure of facts related to their sex
offense convictions and the resulting judgment of the state
that they are a continuing risk. It follows that, just as the
officers' publication of the official act of Davis' arrest did
not violate any fundamental privacy right of Davis', neither
does New Jersey's publication (through notification) of
registrants' convictions and findings of dangerousness
implicate any interest of fundamental constitutional
magnitude. The reputational interests asserted by
appellants are "very different" from matters relating to
marriage, procreation, and child rearing, and are therefore
"far afield" from what has been deemed "fundamental" by
the Constitution.23
_________________________________________________________________
23. Reporters Committee, 489 U.S. at 749, does not call Paul's teaching
into question. We do not agree with the Supreme Court of New Jersey's
conclusion in Doe that the recognition in Reporters Committee of a
statutory right to privacy for "Rap Sheets" under FOIA dictates that a
federal Constitutional right to privacy is implicated by notification. See
Doe, 662 A.2d at 410-11. As mentioned above, Reporters Committee
noted the differences between "privacy" under FOIA and an "individual's
interest in privacy" under the federal Constitution. 489 U.S. at 762 n.13.
__________________________________________________________________
Hendricks, and the long line of cases on which it relies,
counsels that bona fide remedial legislation may inflict very
substantial individual hardship without implicating the Ex
Post Facto and Double Jeopardy Clauses. It necessarily
follows that some limit must be placed on the situations in
which a measure's sting alone, despite its remedial purpose
and effect, will constitute punishment under those clauses
and that classification as punishment on the basis of sting
alone must be reserved for cases involving deprivation of
the interests most highly valued in our constitutional
republic. "[F]reedom from physical restraint`has always
been at the core of the liberty protected' " by the
Constitution. Hendricks, 117 S. Ct. at 2079 (quoting
Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Freedom of
thought and expression and freedom from state interference
with the privacy interests identified in Davis are similarly
"implicit in our concept of ordered liberty." Davis, 424 U.S.
at 713. Interests such as these are sufficiently fundamental
to our constitutionally secured liberty that state
interference with them can be justified only by the most
important of state interests.24Davis establishes that
reputational interests are not among these fundamental
liberty interests.
_________________________________________________________________
24. As we explained in Planned Parenthood of Southeastern Pennsylvania
v. Casey, 947 F.2d 682, 688 n.1 (3d Cir. 1991), aff'd in part and rev'd
in part, 505 U.S. 833 (1992):
Government interference with personal rights within the scope of the
life, liberty, or property umbrella of the Due Process Clauses must
be justified by a legitimate state interest; government interference
with a "fundamental right" may be justified only by the most
important of state interests.
__________________________________________________________________
We believe the state's interest protecting the public here
is similar to, and as compelling as, the state interest served
by the civil commitment statute in Hendricks. Accordingly,
based on Hendricks, we believe that the state's interest here
would suffice to justify the deprivation even if a
fundamental right of the registrant's were implicated. Given
that something less than a fundamental interest is
implicated, the impact of Megan's Law on the registrants'
reputational interests is necessarily insufficient alone to
constitute "punishment."
We now turn to the second type of indirect effects arising
from notification. As we earlier observed, the record bears
evidence of retributive assaults on registrants by private
individuals. There is also evidence of vandalism and other
damage to property of registrants and their associates. As
we have also noted, however, each notification is
accompanied by a warning against misuse of the
information conveyed and an assurance that any private
violence will be prosecuted. This is thus not a situation in
which the state has encouraged private violence. Nor is it a
situation in which the state has in some way incapacitated
a person from taking steps to protect him- or herself
against private violence or has deprived a citizen of the law
enforcement protection accorded to others in the population
generally. On the contrary, the state has taken affirmative
steps to discourage private violence in response to
notification, and is providing registrants with the law
enforcement protection available to others.
We agree with the district court that the risk of private
violence stems primarily from a registrant's past criminal
activity. The most that can be said about notification is that
the state, by disseminating accurate information about a
registrant's crime and its assessment of future risk, may
materially extend the period during which the increased
risk of private violence may exist. While the extension of
that increased risk is understandably of concern to
plaintiffs, they have not persuaded us that the magnitude
of the risk is such as to require classification of its
extension as punishment. Although the record reflects that
personal injury and property damage from private violence
has occurred, it also reflects that these occurrences are
relatively rare. Of the 135 notifications completed in New
Jersey for which there is record data, only two occasioned
assaults or property damage deemed serious enough by the
victim-registrant to warrant a report to law enforcement
authorities. Even if we were prepared to broaden our
consideration to include examples of physical harm to
registrants not reported to police, this would increase the
total number of record cases to just three. Our record with
respect to Washington and Oregon also evidences that
reported instances of personal injury or property damage
are rare.25
_________________________________________________________________
25. The Supreme Court has held that "[a]mong the historic liberties . . .
protected [by the Constitution is] a right to be free from . . . unjustified
[state] intrusions on personal security." Ingraham v. Wright, 430 U.S.
651, 673 (1977). For citizens who are not in the custody of the state,
however, this right does not include the right to state protection from
private violence. See DeShaney v. Winnebago County Dep't of Soc.
Services, 489 U.S. 189 (1989). The "state created danger" cases based
upon this right to personal security do not recognize a right that is
implicated here because they do not involve situations where the risk
created is justified by the state's pursuit of a legitimate public interest.
See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir.
1989).
__________________________________________________________________
As we view this matter, there is unfortunately a
background risk of private violence that is necessarily
assumed by everyone in our society. When one commits a
reprehensible crime and is publicly prosecuted, that risk is
undoubtedly augmented to a limited degree. The duration
of that degree of augmented risk is likely to be extended by
notification pursuant to Megan's Law and this is
understandably a concern for registrants. Nevertheless, we
believe the Supreme Court would not regard this indirect
effect of Megan's Law as sufficiently burdensome to require
classification of the law as punitive. Certainly, in terms of
the impact on the everyday lives of registrants, the burden
of this aspect of Megan's Law pales by comparison to the
civil commitment of sex offenders sanctioned in Hendricks.
F. Satisfaction Of The Artway Test
Because Megan's Law satisfies each of the three elements
of the Artway test, we hold that the notification required by
Megan's Law does not constitute punishment for purposes
of the Ex Post Facto and Double Jeopardy Clauses.
VI. THE PROCEDURAL DUE PROCESS ISSUES
A. Deprivation Of A Liberty Interest
The Fourteenth Amendment of the United States
Constitution provides that "no person shall be deprived of
life, liberty, or property without due process of law." U.S.
Const. Amend. XIV. Appellants insist that they have a
liberty interest that entitles them to the protection of
procedural due process under this provision. Appellees
insist that there is no such interest.
Liberty interests that trigger procedural due process may
be created by state law or by the federal constitution itself.
See Sandin v. Conner, ___ U.S. #6D6D 6D#, 115 S.Ct. 2293 (1995).
We need not reach the issue of whether appellants have a
liberty interest recognized by the federal constitution
because we are satisfied that appellants have a liberty
interest created by the New Jersey Constitution of which
they cannot be deprived without being accorded the process
due under the Fourteenth Amendment.
If a state law requires that the freedom of a person on
parole or probation cannot be taken away without cause,
the state has created a liberty interest that cannot be taken
away without the process due under the Fourteenth
Amendment. See Gagnon v. Scarpelli, 411 U.S. 778 (1973);
Morrissey v. Brewer, 408 U.S. 471 (1972). Similarly here,
we know from Doe that the New Jersey Constitution gives
Tier 2 and Tier 3 registrants the right to be free from Tier
2 and Tier 3 notification absent a showing of an overriding
state interest. The New Jersey Supreme Court there held
not only that Tier 2 and Tier 3 registrants had a right to the
procedural due process guaranteed by the New Jersey
Constitution, but also that they had a substantive right
under that Constitution to be free of the disclosures
required by Megan's Law, absent a demonstration that
such disclosures are required by a legitimate and
substantial state interest.26
_________________________________________________________________
26. Compare Tony L. v. Childers, 71 F.3d 1182 (6th Cir. 1995), cert.
denied, ___ U.S. ___, 116 S. Ct. 1834 (1996) (holding that state statutes
which merely establish procedures and do not mandate any particular
substantive result do not give rise to a state-created "liberty interest").
__________________________________________________________________
As the court explained:
With its declaration of the right to life, liberty, and the
pursuit of happiness, Article I, S 1 of the New Jersey
Constitution encompasses the right of privacy. . . . We
have found a constitutional right of privacy in many
contexts, including the disclosure of confidential or
personal information. Hennessey v. Coastal Eagle Point
Oil Co., 129 N.J. 81, 96, 609 A.2d 11 (1992) (citing In
re Martin, 90 N.J. 295, 447 A.2d 1290 (1982)).
In resolving conflicts between the government's need
for information and the individual's right of
confidentiality, this Court has adopted a balancing test
similar to that adopted by the federal courts. Martin,
supra, 90 N.J. at 318, 447 A.2d 1290. We concluded, in
Martin, that " `even if the governmental purpose is
legitimate and substantial . . . the invasion of the
fundamental right of privacy must be minimized by
utilizing the narrowest means which can be designed to
achieve the public purpose.' " Ibid. (quoting Lehrhaupt
v. Flynn, 140 N.J.Super. 250, 262, 264, 356 A.2d 35
(App.Div. 1976), aff'd o.b., 75 N.J. 459, 383 A.2d 428
(1978)). . . .
662 A.2d at 412. 27
_________________________________________________________________
27. While it is clear that deprivation of a state created liberty interest
triggers due process protection, and that a state created right to be free
of physical restraint is such an interest, the scope of the phrase "liberty
interest" as used in the context of the Due Process Clause has not been
fully delineated. See, e.g., Paul, 424 U.S. at 708-09 (observing that
deprivation of a state law right to obtain liquor in anonymity when
combined with the stigma of defamation would implicate a state-created
"liberty interest," while the stigma alone would not do so). The phrase
"property interest" in this context has been broadly construed, however,
to include contract rights, choses-in-action, and a right to state created
benefits. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807
(1985) (legal and equitable claims); Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 9-10 (1978) (utility service); Goss v. Lopez, 419 U.S.
565, 574 (1975) (school attendance); Perry v. Sindermann, 408 U.S. 593,
602 (1972) (employment contract). Indeed, "property interest" has been
interpreted so as to extend procedural due process protection to virtually
all rights that states will enforce in a court of law. With this background,
we believe that the Supreme Court would interpret"liberty interest" in
the context of the Due Process Clause to include a state created right to
privacy like that recognized in Doe.
__________________________________________________________________
B. Standards For Determining The Process Due
Having concluded that Tier 2 and Tier 3 registrants are
entitled to due process under the Fourteenth Amendment
of the federal Constitution, we turn to the issue of what
process is due them. Appellants contend that two
procedural protections are due that are absent from the
Megan's Law scheme. They insist that due process requires
both that the burden of persuasion at a Megan's Law
hearing be on the state rather than the registrant, and that
the state's burden at such a hearing be to demonstrate the
propriety of the tier classification and the notification plan
by clear and convincing evidence.28
_________________________________________________________________
28. As we have noted, appellants also argue that the notice of a
proposed notification cannot be dispensed with in emergency situations
as the Supreme Court of New Jersey has suggested. We decline to
address that issue for the same reason that we declined to do so in
Artway--it is unripe. 81 F.3d at 1252; see Abbott Labs. v. Gardner, 387
U.S. 136 (1967). "The right to notice is not absolute;" instead, due
process provides for a right to " `reasonably calculated' notice." Artway,
81 F.3d at 1252 (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). "[T]he State cannot dispense with notice when
that notice is possible and irreparable harm could result." 81 F.3d at
1252; see United States v. Raffoul, 826 F.2d 218, 224 (3d Cir. 1987).
The Megan's Law standard for dispensing with notice, as articulated in
Doe and the Guidelines, involves cases where it is "impossible as a
practical matter" to give notice or to do so in a timely manner. 662 A.2d
at 382; Guidelines at 17. None of the representative plaintiffs asserts
that his notification issued absent notice; nor is there anything in the
record indicating that New Jersey's prosecutors have ever dispensed with
notice or plan to do so. The only indication we have as to what
circumstances would meet the standard is the suggestion in the
Guidelines that a prosecutor may apply for a court order to effect
notification absent notice where she does not receive notice of the release
of a sex offender until after the date of release or she can demonstrate
that she made "every good faith effort" to serve a registrant who merely
avoided service. Guidelines at 17-18. As in Artway, we simply do not
have the necessary "factual matrix" against which to evaluate this
standard. 81 F.3d at 1252.
There is another consideration which, as it did in Artway, would
prevent us from reaching the notice issue here--the Pullman abstention
doctrine. Id. at 1252 n.12; see Railroad Comm'n v. Pullman, 312 U.S.
496 (1941). The New Jersey courts have yet to interpret the "impossible
as a practical matter" standard, and "[t]o the extent state court
interpretation would make the standard comport with due process,
abstention would probably be appropriate even if the issue were ripe." 81
F.3d at 1252 n.12.
__________________________________________________________________
Mathews v. Eldridge, 424 U.S. 319 (1976), provides the
framework we must apply to analyze both the burden of
persuasion claim--whether it is the state or the registrant
who must persuade the court on the material points--and
the standard of proof claim--whether, if the burden of
persuasion is on the state, the state must prove its case by
a preponderance or by clear and convincing evidence. As
Mathews teaches:
[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). .. .
More precisely, our prior decisions indicate that
identification of the specific dictates of due process
generally requires consideration of three distinct
factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Mathews, 424 U.S. at 334-35.
The Supreme Court has twice applied the Mathews test
in the specific context of a challenge to the preponderance
of evidence standard of proof. Santosky v. Kramer, 455 U.S.
745 (1982), posed the issue of whether due process
requires the state to prove its case in a termination of
parental rights proceeding by clear and convincing
evidence, rather than merely by a preponderance of
evidence. Addington v. Texas, 441 U.S. 418 (1979),
presented the issue of the state's burden in a civil
commitment proceeding. In each instance, the Court, in
addition to identifying the private and public interests at
stake and evaluating the relative risk of error in the
particular kinds of proceedings involved, addressed whether
the standard employed "fairly allocates the risk of an
erroneous factfinding between the[ ] parties." Santosky, 455
U.S. at 761. As the Santosky Court explained:
Addington teaches that, in any given proceeding, the
minimum standard of proof tolerated by the due
process requirement reflects not only the weight of the
private and public interests affected, but also a societal
judgment about how the risk of error should be
distributed between the litigants.
Id. at 755.
In both Santosky and Addington, the Court held that due
process required the state to carry the burden of
persuasion by more than a preponderance of the evidence,
since the preponderance standard requires litigants to
"share the risk of error in roughly equal fashion."
Addington, 441 U.S. at 423. Neither a person threatened
with a termination of parental rights nor one standing in
jeopardy of a civil commitment "should . . . be asked to
share equally with society the risk of error when the
possible injury to the individual is significantly greater than
any possible harm to the state." Id. at 427.
C. Allocation Of The Burden Of Persuasion
We first address whether the Due Process clause permits
New Jersey to allocate the burden of persuasion in a
Megan's Law proceeding to the registrant. We begin, as
Mathews directs, by identifying the private and public
interests involved. The private interests that will be affected
by the state's notification in Tier 2 and Tier 3 cases if the
outcome of the hearing is in the state's favor are very
substantial. Notification puts the registrant's livelihood,
domestic tranquility, and personal relationships with all
around him in grave jeopardy. This jeopardy will not only
extend to virtually every aspect of the registrant's everyday
life, it will also last at least 15 years. As the New Jersey
Supreme Court recognized in Doe, a registrant thus has a
compelling interest in an accurate and reasonable
disposition of the issues before the court in a Megan's Law
hearing.
The state, on the other hand, has a compelling interest in
protecting its citizens by giving prompt notification to
potential victims and relevant caregivers with respect to
registrants who are accurately determined to be Tier 2 or
Tier 3 risks. New Jersey thus has a compelling interest in
having an expedited, summary process. However, the state
also has an interest in ensuring that its classification and
notification system is both fair and accurate. Put
conversely, the state has no substantial interest in notifying
persons who will not come into contact with the registrant;
nor has it any interest in notifying those who will come into
contact with a registrant who has erroneously been
identified as a moderate or high risk. Cf. Santosky, 455
U.S. at 766 (noting that even when the state seeks to
terminate parental rights, it shares an interest with the
parents in an accurate factfinding as to their fitness).
Given the respective private and public interests at stake
in a Megan's Law hearing, we conclude that the burden of
persuasion must be placed on the state if, compared to
proceedings in which that burden is on the registrant, the
risk of error will be materially reduced without materially
impairing the state's ability to secure a prompt
determination and without imposing substantial new
administrative burdens on the state.
Our next step, then, is to identify the issues that are
before the court in a Megan's Law hearing--a necessary
predicate for assessing any potential reduction in the risk
of error. When a challenge is mounted to a tier
classification, the issues for resolution by the court are
limited to: (1) whether the Scale has been accurately
applied to the facts of the case in accordance with its
terms; and (2) whether there is something extraordinary
about the particular registrant's case that takes it out of
the "heartland" of the cases within the scope of the tier that
would otherwise be indicated. In re G.B., 685 A.2d at 1264.
If the registrant challenges not just the tier classification
but also the reasonableness of the prosecutor's notification
plan, the court must also exercise a judgment about
whether the scope of the proposed notification is
appropriate to the risk presented by the particular
registrant.
Since the validity of the Scale as a risk assessor must be
accepted by the court, resolution of the first issue primarily
requires factfinding--albeit factfinding in a context that
poses more than a normal risk of error, as we explain
hereafter. Resolution of a registrant's contention that his
case is outside the "heartland" or that the notification
proposed is excessive, on the other hand, necessarily
involves a subjective judgment by the court regarding the
degree and nature of the risk posed by the particular
registrant. Thus, in resolving these issues, the court is
necessarily required to assess future dangerousness. While
a state is clearly entitled to require a court to undertake
such an assessment, it is an undertaking involving
substantial uncertainty. See Randy K. Otto, On the Ability
of Mental Health Professionals to "Predict Dangerousness": A
Commentary on Interpretation of the "Dangerousness"
Literature, 18 Law & Psychol. Rev. 43, 45, 62-63
(1994)(noting that researchers in the 1970s began
compiling data showing that the presumption that
professionals could predict violent behavior was incorrect,
but also noting that recent data showed "some" predictive
ability); American Psychiatric Association, Report of the
American Psychiatric Association Task Force on Clinical
Aspects of the Violent Individual 20 (1974)(concluding that
"[n]either psychiatrists nor anyone else have demonstrated
an ability to predict future violence or dangerousness").
Resolution of factual issues made relevant by the Scale is
of critical importance to the outcome at a Megan's Law
hearing. These issues include the circumstances of the
crime that has required registration as well as other
criminal conduct in which the registrant has allegedly
engaged. See, e.g., In re C.A., 679 A.2d at 1153. In every
hearing, the court will be called upon to find facts relating
to the circumstances of a sex offense of which the
registrant has been convicted. Many of these facts will not
have been determined by the trier of fact in the criminal
proceeding. Since a prosecutor may also rely on conduct for
which the registrant has not been convicted, the court will
be called upon in some proceedings to determine the
circumstances of sex offenses that have never been the
subject of a criminal proceeding. Sex offenses are almost
always committed in private. This means that potential
witnesses with relevant knowledge of whether, and if so
how, an alleged sex offense occurred are generally limited to
the victim and the alleged offender. One can therefore
confidently predict that there will frequently be issues of
importance in Megan's Law hearings where the information
available to the court will be limited to the victim's word
against the word of the alleged offender.
These issues must be resolved in a proceeding in which
the rules of evidence do not apply. The prosecutor may
base her case entirely on hearsay, if it shows indicia of
reliability. Most importantly, these issues must be resolved
in a proceeding in which the registrant cannot compel
testimony from the victim without the approval of the court,
and the court must follow the following admonition of the
New Jersey Supreme Court:
The trial courts should only seek to compel such
testimony when there is a real need for the testimony
that cannot be met in an alternative manner. We
expect that only in the rarest of cases will a court
compel the testimony of a victim. In those cases, we
suggest that, when possible, the trial court itself
conduct all questioning of the victim.
In re C.A., 679 A.2d at 1166.
Accurate factfinding is also made more difficult by the
timetable on which the proceedings must be conducted.
Because of the public interest in a prompt resolution of the
issues posed in any such proceeding, the Supreme Court of
New Jersey has ordered that the time from the date of
notice to a registrant until the time of trial court decision
on the tier classification should not exceed 40 to 45 days.
See Supreme Court of New Jersey, Outline of Procedure for
Hearings on Objections to Megan's Law Tier 2 and Tier 3
Classification and Manner of Notification Determinations P I.
While clearly justified, this requirement does substantially
constrict both sides in their preparations for the truth-
seeking hearing process.
Courts are human institutions and there is, of course,
risk of error in every judicial proceeding. Given the nature
of the issues typically presented in a Megan's Law hearing
and the process established by New Jersey for resolving
them, however, we believe the risk of error in such a
hearing is substantially greater than that in a typical civil
damage suit. We further conclude that, in this context, the
allocation of the burden of persuasion is of critical
importance and the assignment of that burden to the
prosecutor will substantially reduce the risk of an
erroneous outcome.
When the court in a Megan's Law hearing simply cannot
tell which of two conflicting accounts (regarding the use of
force, perhaps) represents the historical truth, allocation of
the burden of persuasion is likely to be outcome
determinative. The same is true in those cases in which the
trier of fact finds inconsistencies or implausible elements in
the victim's account, but, at the same time, is inclined to
discount the registrant's account because of his criminal
history or the enormity of his stake in the outcome. In
these cases, as well as others in which the trier of fact
discounts the account of the registrant for similar reasons,
requiring the prosecutor to affirmatively convince the court
of the important facts can be expected to materially reduce
the risk of error.
Finally, we must consider whether an allocation of the
burden of persuasion to the state would materially impair
the state's ability to receive a prompt determination or
would impose new administrative burdens on it. Under the
current procedural scheme, the state has the burden of
presenting a prima facie case. This means, of course, that
the prosecutor is already required to marshal and tender
evidence that, if believed, will establish the facts she relied
upon. While allocation of the burden of persuasion to the
state may motivate the prosecutor to utilize live testimony
rather than affidavits where substantial credibility issues
are anticipated, this would not appear to impose a
substantial administrative burden. Moreover, we perceive
no reason to predict that any possible increase in the
utilization of live witnesses would materially impair the
prosecutor's ability to meet her responsibility under New
Jersey's 45 day timetable for Megan's Law determinations.
Given (1) the interest of the registrant and the state in an
accurate determination of the relevant issues of fact in a
Megan's Law hearing, (2) the absence of a substantial
economic or other burden to the state from allocating the
burden of persuasion to it, and (3) our conclusion that
such an allocation will materially reduce the risk of error in
those cases in which the allocation of that burden plays a
role, we hold that due process requires that the prosecutor
shoulder the burden of persuading the court of the truth of
the facts upon which she has relied.
D. Extent Of The State's Evidentiary Burden
The remaining issue is whether due process requires that
the prosecutor prove her facts by clear and convincing
evidence, as appellants claim, rather than merely by a
preponderance of evidence. Santosky and Addington require
that we address whether, in light of the relative importance
of the private and public interests at stake and the impact
on those interests of an erroneous determination, the
preponderance of evidence standard fairly allocates the risk
of error between the parties. This requires "a very
fundamental assessment of the comparative social costs of
erroneous factual determinations" in the context of Megan's
Law proceedings. In re Winship, 397 U.S. 358, 370 (1970)
(Harlan, J., concurring). Based on such an assessment, we
must determine whether registrants can fairly "be asked to
share equally with society the risk of error." Addington, 441
U.S. at 427.
We have previously identified the private and public
interests at stake in a Megan's Law proceeding. For present
purposes, it is important to add that the impact of an
erroneous determination on those interests is significantly
dissimilar. An erroneous underestimation of an individual's
dangerousness will not necessarily result in harm to
protected groups. Registration alone, which Megan's Law
mandates regardless of an offender's classification, allows
law enforcement officials to monitor offenders and provides
considerable disincentive to offenders to commit criminal
acts because of the high likelihood of being apprehended.
On the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm
to the offender: his conviction becomes public, he is
officially recorded as being a danger to the community, and
the veil of relative anonymity behind which he might have
existed disappears.
In this context, we find Addington to be the most helpful
authority. The civil commitment statute involved there
required the court to determine, inter alia, whether
"hospitalization [of the individual who was the subject of
the proceeding] in a mental hospital [was required] for his
own welfare and protection or the protection of others." Id.
at 420. Thus, there, as here, the trier of fact was required
to predict future dangerousness. Moreover, the interests
which the state had in civil commitment proceedings under
the statute were similar to the interests of the state here--
protecting the public from violence--and the risks attending
an erroneous finding against the state are, therefore,
similar. Additionally, registrants share with individuals
facing civil commitment an important interest that was
stressed in Addington. As the Court explained:
[I]t is indisputable that involuntary commitment to a
mental hospital after a finding of probable
dangerousness to self or others can engender adverse
social consequences to the individual. Whether we label
this phenomena "stigma" or choose to call it something
else is less important than that we recognize that it can
occur and that it can have a very significant impact on
the individual.
Id. at 425-26.
It is true, as the state points out, that a registrant in a
Megan's Law proceeding does not face the same restrictions
on his physical freedom that a potential committee faces in
civil commitment proceedings. It is clear from Santosky,
however, that due process requires a clear and convincing
standard even in the absence of a threat of physical
restraint when the "loss threatened by [the] particular type
of proceeding is sufficiently grave to warrant more than
average certainty on the part of the factfinder." Santosky,
455 U.S. at 758. As the Court observed in Santosky:
This Court has mandated an intermediate standard
of proof--"clear and convincing evidence"--when the
individual interests at stake in a state proceeding are
both "particularly important" and "more substantial
than mere loss of money." Addington v. Texas , 441
U.S., at 424. Notwithstanding "the state's `civil labels
and good intentions,' " id., at 427, quoting In re
Winship, 397 U.S., at 365-366, the Court has deemed
this level of certainty necessary to preserve
fundamental fairness in a variety of government-
initiated proceedings that threaten the individual
involved with "a significant deprivation of liberty" or
"stigma." 441 U.S., at 426, 426. See, e.g., Addington v.
Texas, supra (civil commitment); Woodby v. INS, 385
U.S., at 285 (deportation); Chaunt v. United States, 364
U.S. 350, 353 (1960) (denaturalization); Schneiderman
v. United States, 320 U.S. 118, 125, 159 (1943)
(denaturalization).
Santosky, 455 U.S. at 756.
We must, therefore, ask whether the preponderance of
evidence standard, which "allocates the risk of error nearly
equally" between an erroneous overestimation or
underestimation of a registrant's future dangerousness,
"reflect[s] properly the [ ] relative severity" of these
erroneous outcomes. Id. at 766. Addington supplies the
answer. Because "the possible injury to the individual
[registrant] is significantly greater than any possible harm
to the state," the registrant, consistent with due process,
cannot "be asked to share equally with society the risk of
error." 441 U.S. at 427. It necessarily follows that the due
process clause requires that the state prove its case by
clear and convincing evidence in a Megan's Law proceeding.
In reaching this conclusion, we have not been unmindful
of the Supreme Court's decision in McMillan v.
Pennsylvania, 477 U.S. 79 (1986). In McMillan, a
Pennsylvania sentencing statute set a mandatory minimum
for those convicted of a crime while using a visiblefirearm.
The issue there was whether a "sentencing consideration,"
such as the presence of a firearm, need be proved by more
than a preponderance of evidence. The Court held,
affirming a long tradition, that proof by a preponderance of
evidence is sufficient in the sentencing context. Here,
however, we are not dealing with sentencing. Sentencing
occurs during and is part of the criminal proceeding; its
purpose is to specify the sanction to be imposed as a result
of one's conviction by proof beyond a reasonable doubt. A
Megan's Law hearing, by contrast, is a civil proceeding that
stands apart from the criminal proceeding in which one
was convicted and sentenced. See C.A., 679 A.2d at 1164.29
_________________________________________________________________
29. Because tier classification is a civil process, the deference due state
criminal procedures, see, e.g., Cooper v. Oklahoma, ___ U.S. ___, 116
S.Ct. 1373, 1377 (1996), is not applicable here.
__________________________________________________________________
Moreover, as we have discussed, the factual determinations
required in a Megan's Law hearing are of greater complexity
than those typically involved in sentencing. Accordingly, we
conclude that it is entirely consistent with McMillan to
require a higher standard of proof in a Megan's Law
proceeding.
VII. CONCLUSION
Application of Megan's Law to the class certified by the
district court will not violate the Ex Post Facto or Double
Jeopardy Clauses of the Constitution. The Due Process
Clause, however, would be violated by any Tier 2 or Tier 3
notification that occurred without a prior opportunity to
challenge the registrant's classification and notification
plan in a hearing at which the prosecutor has the burden
of persuasion and must prove her case by clear and
convincing evidence. Accordingly, the judgment of the
district court will be reversed and this matter will be
remanded with instructions (1) to enter an injunction
foreclosing notification in Tier 2 and Tier 3 cases without
compliance with these requirements of procedural due
process, and (2) to deny any further relief.
BECKER, Circuit Judge, concurring and dissenting with
respect to Parts I-V of the majority's opinion, which
primarily discuss the question whether the notification
provisions of the challenged statute violate the Ex Post
Facto Clause or the Double Jeopardy Clause; and
concurring in Part VI of the majority's opinion regarding the
process due a registrant at a tier classification hearing.
TABLE OF CONTENTS
I. DO THE NOTIFICATION PROVISIONS OF
MEGAN'S LAW CONSTITUTE PUNISHMENT? 72
A. Introduction 72
B. The History Subpart of the Artway Test;
Overview 73
C. Historical Analogues to Notification
Provisions 75
1. The Applicability of Criden 75
2. Analogy to Shaming Punishments 76
3. Warning Posters, Wanted Posters, and
Quarantine Notices Compared 78
4. The Mechanism of Notification; Its Relation
to the Choice of Historical Analogues 81
5. Summary: Shaming Punishments as the
Best Analogy 83
D. Does the Text, Legislative History, or Design
of the Notification Provisions Demonstrate
That They are not Punitive? 84
1. Introduction; The Role of Law Enforcement 84
2. Promoting the Aims of Punishment 86
3. Excessiveness 87
4. Summary of "Design" 89
E. Notification Fails the History Subpart of
Artway 89
II. EFFECTS 90
A. Introduction 90
B. Methodology: The Proper Standard for
Evaluating Effects 91
C. Actual Effects 94
D. Summary 98
III. THE "CLEAREST PROOF" DOCTRINE 98
IV. CONCLUSION 101
The societal pressure for legislation designed to prevent
terrible tragedies such as befell Megan Kanka and her
parents is hydraulic. The pressure is understandable, for
Americans are a fundamentally decent people, and
legislation such as Megan's Law is thus the product of good
intentions. Unfortunately, however, earthly life is fraught
with so much uncertainty that we cannot legislate against
the vagaries of chance. In their desire to make everything
right, legislators sometimes overlook this basic fact, and
enact laws that not only fail to achieve their laudable ends,
but also cause serious harm. This appeal involves a
textbook example of that phenomenon.
I do not quarrel with much of what the majority has said
in that portion of its fine opinion dealing with the definition
of punishment. Importantly, I agree with its conclusion that
our decision in Artway v. Attorney General of New Jersey,
81 F.3d 1235 (1996) remains viable even in the wake of
Kansas v. Hendricks, ___ U.S. ___, 65 U.S.L.W. 4564 (U.S.
June 24, 1997) (Nos. 95-1649, 95-9075), and United States
v. Ursery, ___ U.S. ___, 116 S. Ct. 2135 (1996), and that we
must apply the Artway test for what constitutes
punishment under the Double Jeopardy Clause and the Ex
Post Facto Clause to determine the validity of the
challenged statute. Where we part company is over the
second prong of the Artway test -- objective (legislative)
intent, a consideration that is heavily freighted with history.
History, a consideration deemed by the Supreme Court to
be the barometer of legitimacy in so many constitutional
cases, is telling in the resolution of this appeal.
Tacitly recognizing the deep, historic roots of the
plaintiff's double jeopardy and ex post facto claims, the
majority deftly tiptoes over the "stocks, cages, and scarlet
letters referenced by appellants," and asserts that other
forms of the dissemination of information generated by our
criminal justice system "constitute far more compelling
analogies" to Megan's Law. But the majority's analogies are
misplaced. Warning or wanted posters and quarantine
notices provide very different information from that
provided by the community notification provisions of
Megan's Law. Instead, the more apt historical antecedents
to notification can be found in the shaming punishments of
colonial America, which were indubitably and unabashedly
punitive. Moreover, nothing in the design or operation of
the notification provisions of Megan's Law contradicts this
historical understanding. Because the history of notification
evidences an objective punitive intent, and because the
design or operation of notification does not negate this
objective intent, the notification provisions of Megan's Law
must be considered punishment under Artway's second
prong. I therefore dissent from the majority's conclusion in
Part V that Megan's Law passes constitutional muster.
Failure to meet the second prong of the Artway test is
fatal to the statute, and hence I do not ground my dissent
on Artway's third prong dealing with the"effects" of
notification. However, because of the relevance of effects to
application of the presumption in favor of subjective
legislative intent over objective manifestations of that
intent, and because of the general importance of the issue,
which I think is much closer than the majority describes it,
I report my conclusion that its treatment of the"effects"
prong of Artway is quite problematic. More specifically, its
novel holding that nothing short of the deprivation of a
sufficiently fundamental interest can give rise to an effect
that would constitute punishment is, I believe, incorrect.
Further, the majority improperly narrows the Artway effects
test both procedurally and substantively.
I join in those parts of the majority's opinionfinding a
Rooker-Feldman bar to our review of E.B.'s challenge, and
declaring unripe the challenge to the state's authority to
dispense with notice prior to tier classification hearings in
emergency situations. I also join in Part VI of the majority's
opinion holding that the due process clause forbids the
imposition of the burden of persuasion at a Megan's Law
tier classification hearing on the offender and that that
burden should be by clear and convincing evidence.
Finally, while I recognize that there is arguably a strong
presumption favoring the subjective intent of a legislature
in determining whether a measure is punitive such that
only the clearest proof of objective intent will undermine
that subjective intent, I believe that application of this
standard in the present context is misplaced. The purpose
of the standard is to determine legislative intent. There is
thus no need to apply the standard here because the
historical antecedents to notification provisions make that
intent patent. Put slightly differently, assuming that such a
standard does apply, I believe that the history of
notification, the design of notification provisions in Megan's
Law, and the effects of notification provide sufficient proof
to show an objective punitive intent, notwithstanding the
subjective intent to the contrary. In other words, the
objective manifestations of the legislative intent evidence a
punitive purpose.
I. DO THE NOTIFICATION PROVISIONS OF MEGAN'S
LAW CONSTITUTE PUNISHMENT?
A. Introduction
The central issue in the case, as the majority's opinion
makes clear, is whether the notification provisions of
Megan's Law constitute punishment.1 If not, then neither
the Ex Post Facto Clause nor the Double Jeopardy Clause
is implicated.
_________________________________________________________________
1. As the majority notes, Megan's Law was actually a series of bills
enacted by the New Jersey legislature. Hereinafter, when I refer to
Megan's Law, I refer only to those provisions requiring released sex
offenders to register with law enforcement officials so that such officials
may, in certain circumstances, carry out community notification as to
the whereabouts of these offenders. These provisions are codified in the
New Jersey Code of Criminal Justice at S 2C:7-1 through S 2C:7-11.
__________________________________________________________________
Like the majority, I believe that Artway provides the
proper legal standard to govern whether notification is to be
considered punishment. I join in its lucid explanation as to
why the Artway test survives the recent Supreme Court
cases in Ursery, and in Hendricks. I therefore turn to how
the Artway test applies to the notification provisions of
Megan's Law. Because, as the majority explains, our
conclusion in Artway that the actual purpose of the
registration provisions of Megan's Law is non-punitive
effectively requires us to conclude that the actual purpose
of the notification provisions is similarly non-punitive
(satisfying Artway's first prong), I proceed to Artway's
second prong.
B. The History Subpart of the Artway Test; Overview
I begin with the so-called history subpart of the objective
purpose prong of the Artway test. Pursuant to this subpart,
if historical analysis shows that the measure in question
has been regarded as punishment, and if the text or
legislative history of the measure does not negate this
traditional understanding, we must consider the measure
punitive. See Artway, 81 F.3d at 1263.
It is here that I most disagree with the majority's opinion.
In particular, I believe that it incorrectly frames the
historical analysis, first by relying on immaterial precedent,
and then by applying insufficiently comparable historical
analogues to the notification provisions of Megan's Law. A
better reasoned analysis likens the notification provisions of
Megan's Law to the shaming punishments of colonial
America -- the scarlet letters of literary fame-- leaving no
doubt that the objective purpose of these provisions is
punitive. The discussion may be put in proper perspective
by looking at Supreme Court jurisprudence, and we do not
have to look beyond a few of the Supreme Court cases
decided in the last month of the October 1996 term. These
cases are suffused by references to and reliance on
historical analysis.
Perhaps the most apposite case is Hendricks itself, where
the Court made use of the historical understanding of a
measure to determine whether it was punitive. Holding that
a Kansas civil commitment statute was not punitive, the
Court noted that restricting the freedom of the dangerously
mentally ill "is a legitimate non-punitive governmental
objective and has been historically so regarded." Hendricks,
65 U.S.L.W. at 4569.
In Richardson v. McKnight, 65 U.S.L.W. 4579 (U.S. June
24, 1997) (No. 96-318), holding that prison guards
employed by private prison management firms do not enjoy
qualified immunity, the Court looked to the historical
traditions of immunity applicable to privately employed
prison guards, going so far as to examine the operation of
jails in medieval England. Similarly, in Washington v.
Glucksberg, 65 U.S.L.W. 4669 (U.S. June 26, 1997) (No. 96-
110), canvassing the historical treatment of suicide and
assisted suicide, the Court noted that "for over 700 years,
the Anglo-American common-law tradition has punished or
otherwise disapproved of both suicide and assisting
suicide." Id. at 4671.
In Printz v. United States, 65 U.S.L.W. 4731 (U.S. June
27, 1997) (Nos. 95-1478, 95-1503), the Court relied heavily
on history in analyzing the Brady Handgun Violence
Prevention Act, surveying statutes and executive actions
from the earliest days of the Republic to determine whether
the federal government can constitutionally require states
to execute federal regulatory laws. And, in Reno v. ACLU,
65 U.S.L.W. 4715 (U.S. June 24, 1997) (No. 96-511), in
striking down provisions of the Communications Decency
Act of 1996, the Court looked to more modern history and
distinguished the Internet from radio broadcasts, noting
that the Internet has no history of limited First Amendment
protections.
Although I have cited only a few examples, these recently
decided cases make patent that history plays a vital role in
constitutional adjudication. See John Paul Stevens, A
Judge's Use of History, 1989 Wis. L. Rev. 223, passim
(suggesting that the interaction of history and the law is
ripe for study and discussing the use of historical analysis
in three cases).2
_________________________________________________________________
2. Were I to conduct a more extensive canvass of the extent to which the
Supreme Court relies on history in constitutional cases, this opinion
would become a veritable treatise. The Court's long line of media access
cases, beginning with Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555 (1980), which traces the history of open criminal trials from the days
before the Norman Conquest, is but one example.
__________________________________________________________________
C. Historical Analogues to Notification Provisions
1. The Applicability of Criden
The majority's treatment of history focuses first on United
States v. Criden, 648 F.2d 814 (3d Cir. 1981). There, we
rejected a suggested analogy between the media re-
broadcast of material placed into evidence at a criminal
trial and the shaming punishments of colonial America. See
id. at 825. The majority essentially argues that the
notification provisions at issue here are like the challenged
re-broadcast in Criden. It reasons that, because the
challenged re-broadcast is unlike the shaming
punishments, the notification provisions must also be
unlike them, and hence the purpose of the notification
provisions does not correspond with the purpose of the
shaming punishments. I believe that the majority's reliance
on Criden is misplaced. The notification provisions in
Megan's Law are different from the re-broadcast in Criden
in a number of respects. The most striking is that the re-
broadcast itself is carried out by the private media (who
obtained the information from the state), whereas the
notification provisions are carried out by the state.
This distinction makes all the difference. Here, New
Jersey not only made the criminal history of convicted sex
offenders publicly available, it also instituted an affirmative,
state-run program to disseminate that information. In one
imaginable scenario, New Jersey could simply have allowed
private entities to disseminate this public information about
the offender's record. The state, however, chose to take the
additional step of disseminating the information itself. The
purpose of that deliberate decision is at issue here. To
determine the objective purpose of the notification
provisions, we must look to measures in which the
dissemination of criminal history information is state-run,
not to measures in which the dissemination occurs
independently from state action. For the same reasons that
Criden is inapposite, the majority's discussion of public
indictments, public trials, the public imposition of
sentence, and "rap sheets" is unhelpful. In none of these
cases is the state itself actively disseminating information.
2. Analogy to Shaming Punishments
In contrast, the state-run dissemination of criminal
history information is central to the operation of shaming
punishments.3 As a result, shaming punishments are, as a
group, measures that should be considered in our historical
analysis. By shaming punishments, I mean a variety of
punishments, common in the American colonies, ranging
from the admonition to branding or maiming and
banishment.
_________________________________________________________________
3. That the form of dissemination under Megan's Law (written notice) is
different from the form of dissemination of the shaming punishments
(public display of the offender) is immaterial. Public display in modern
society simply would not accomplish the goals of notification; not all
those "likely to encounter" the released offender would be notified by
public display.
__________________________________________________________________
In an admonition, a magistrate or clergyman would
lecture the offender privately about his misdeeds and seek
his repentance. See Adam J. Hirsch, From Pillory to
Penitentiary: The Rise of Criminal Incarceration in Early
Massachusetts, 80 Mich. L. Rev. 1179, 1224 (1982). The
offender would then offer a public apology before the
community either in court, see id., or in church, see Toni
M. Massaro, Shame, Culture, and American Criminal Law,
89 Mich. L. Rev. 1880, 1912-13 (1991). Once forgiven by
the community, the offender was drawn back into its fold,
thereby restoring a moral order upset by the offense. See id.
at 1913. In a similar vein, offenders were often forced to
stand in a public place for a time displaying their offense
written on their clothing or on their bodies. See Lawrence
M. Friedman, Crime and Punishment in American History 38
(1993). This public display took many forms in the colonies,
and might include "[s]entences to the pillory, to the stocks,
to lashes at the whipping-post, and to hours on the gallows
with a rope around the neck." Hirsch, supra, at 1225.
A court might also require that the offender permanently
display a label representing his offense -- for instance, a
scarlet letter "A" for the crime of adultery. See Massaro,
supra, at 1913. Such labels were generally cut from cloth
and sewn on the offender's outer garments. See Friedman,
supra, at 40. Another form of permanent labeling was the
brand, in which the authorities burned a label directly onto
the offender's body. See id. A murderer might be branded
with an "M", a thief with a "T". See Jon A. Brilliant, Note,
The Modern Day Scarlet Letter: A Critical Analysis of Modern
Probation Conditions, 1989 Duke L.J. 1357, 1361. Colonial
New Jersey, for example, punished burglary by branding
the offender's hand for a first offense, and his forehead for
subsequent offenses. See id.
Mutilation or maiming was similar to branding except
that it did not necessarily signal the precise offense the
offender had committed. See Friedman, supra, at 40. A
common form of mutilation or maiming was the
detachment of an ear. See id. The effect of branding,
mutilation, or maiming was often to cast the offender out of
society once and for all. See Hirsch, supra at 1228. Unlike
the aftermath of an admonition, the community did not
welcome the offender back into society, but shunned him.
See id. Just a short step away from branding, mutilation,
and maiming, was banishment, a forced exclusion from the
community. Banishment was reserved for those who
presented "a permanent danger" or who engaged in
"repeated criminality." See Friedman, supra, at 40. "Those
who would not repent, those who could not be regathered
into the bosom of society, had to be driven out." Id.
These various punishments were effective -- they had
"sting" -- because each punishment publicized accurate
information about the offender's misdeeds, and because of
the cultural milieu of a colonial settlement. A settlement in
the American colonies was "small-town life at its most
communal." Id. at 37. Thus, once an offense had been
made public, the entire community became aware of it, and
such publicity was the cause of shame. In addition,
colonists have been described as ultra sensitive to criticism
from their fellows, see Massaro, supra , at 1912, especially
from those whom they knew and respected, see Hirsch,
supra, at 1233-34. Therefore, the public dissemination of
the fact that a community member had committed some
offense was especially calculated to provoke shame in the
wrongdoer.
As the majority recognizes, these shaming punishments
often were imposed in addition to physical punishments,
such as whippings. See Friedman, supra , at 40. However,
the physical punishment did not lessen the "sting"
associated with the public dissemination of the offense. See
Hirsch, supra, at 1232 ("A sentence to whipping or the
pillory had worked primarily through the media of psychic
pain and shame."). In fact, the physical punishment was
seen as being effective only insofar as it resulted in the
offender being shamed by the publicity of his offense. See
id. at 1233-34 ("As the aura of shame and psychic trauma
surrounding the penalty evaporated, there was left behind
only a small core of physical pain quite insufficient to
prevent offenses."). Further, the authorities often dispensed
with physical punishments altogether because the"sting"
associated with the publicity was more sharp. See id. at
1226. Finally, some shaming punishments had no physical
components at all; for instance, those condemned to
display a label representing their offense did not necessarily
suffer physical punishment.
3. Warning Posters, Wanted Posters, and Quarantine
Notices Compared
As the foregoing discussion makes clear, shaming
punishments are analogous to the notification provisions
contained in Megan's Law. But that does not end our
inquiry. Other measures also rely on the state
dissemination of information. The majority mentions two
such measures: warning or wanted posters, and quarantine
notices.4
_________________________________________________________________
4. In a footnote, the majority mentions common procedures that provide
for public notice that an inmate is being considered for parole or is being
released from incarceration. Such measures are relatively modern and
therefore are probably not appropriate historical analogues to the
notification provisions, and I will not dwell on them any more than the
majority does.
__________________________________________________________________
The question, then, is whether the notification
provisions of Megan's Law are more like the shaming
punishments or more like warning or wanted posters, or
quarantine notices. The difficulty in pinpointing the proper
historical analogy to notification provisions lies in
identifying the characteristics of such provisions (in
addition to the state dissemination of information) that will
help us to determine their objective purpose. This analysis
is further complicated, at least in part, by the fact that
"[u]nquestionably punitive statutes share traits with laws
that are universally accepted as [remedial]." Note,
Prevention Versus Punishment: Toward a Principled
Distinction in the Restraint of Released Sex Offenders, 109
Harv. L. Rev. 1711, 1725 (1996).5
_________________________________________________________________
5. My analysis here mirrors that explained in an article describing the
process of legal reasoning by analogy. See Scott Brewer, Exemplary
Reasoning: Semantics, Pragmatics, and the Rational Force of Legal
Argument by Analogy, 109 Harv. L. Rev. 923, 965 (1996). To quote from
the author:
[I]n order for an argument by analogy to be compelling . . . there
must be sufficient warrant to believe that the presence in an
"analogized" item of some particular characteristic or characteristics
allows one to infer the presence in that item of some particular other
characteristic.
Id. (footnote omitted). In this case, we are attempting to determine which
characteristics of notification will allow us to infer its objective purpose
by examining analogues of notification that share these characteristics
and whose purpose we know.
__________________________________________________________________
The majority ignores an important component of the
shaming punishments when it reasons that warning or
wanted posters and quarantine notices are more apt
analogies to notification provisions than are the shaming
punishments. The majority essentially believes that the
characteristic that notification provisions share with
warning or wanted posters and with quarantine notices
(and the characteristic that is sufficient warrant to justify
its analogy) is the general type of information that each
measure disseminates. In other words, it reasons that,
because notification provisions alert the community to a
risk, they must be akin to warning or wanted posters and
to quarantine notices which similarly alert the community
to a risk.
The problem with this reasoning is that -- like the
warning or wanted posters, and quarantine notices-- the
shaming punishments also alerted the community to a risk,
the risk that the offender would re-offend. See, e.g., Hirsch,
supra, at 1228 ("Less common, but equally effective, were
branding and mutilation, punishments that fixed upon the
offender an indelible `mark of infamy,' to warn community
members to keep their distance."); Massaro, supra, at 1913
("Branding and maiming also were designed in part to
prevent the offender from committing future similar acts,
either by warning future victims of their criminal
propensities or by disabling the offender." (footnote
omitted)).
Moreover, notification is a judicially endorsed
pronouncement that the registrant presents a danger to the
community. In that sense, notification is closer to the
shaming punishments than to warning or wanted posters,
or quarantine notices. There is no judicial involvement in
the issuance of warning or wanted posters, or of quarantine
notices. Judicial endorsement, by a disinterested
magistrate, is different in kind from a determination by
other public agencies. Therefore, one cannot contend that
warning or wanted posters and quarantine notices are
better analogies to the notification provisions than are the
shaming punishments simply because warning or wanted
posters and quarantine notices alert the community to a
risk.
New Jersey argues that, because the purpose of the
notification provisions and that of measures such as
warning or wanted posters, or quarantine notices is to alert
the community to some danger (a remedial purpose), we
must consider notification provisions historically analogous
to these other measures. As the foregoing discussion
suggests, this argument is flawed. The goal of the history
subpart of the Artway test was to determine the objective
purpose of a particular measure by examining the historical
understandings of analogues to the measure in question. It
does not comport with this methodology to choose as data
points historical analogues based solely on the claim that
they served the same purpose as the measure in question.
To do so would assume the very issue that is in dispute,
and then reach a conclusion by way of circular reasoning.
4. The Mechanism of Notification; Its Relation to the
Choice of Historical Analogues
Because we are concerned with the objective purpose of
the state dissemination of information, we must examine
the particular information the state chooses to disseminate
in order to determine that objective purpose. As the
majority describes the process of notification, New Jersey
provides recipients of notification with the following
information: the identity of the convicted sex offender, his
physical description, the location of his dwelling, the place
of his employment, a description of his automobile, his
license plate number, and the offense(s) for which he was
convicted and by which the notification was triggered.6
_________________________________________________________________
6. I rely here on the type of information released pursuant to the
Attorney General's guidelines implementing notification. See N.J. Stat.
Ann. S 2C:7-8(d) (1995). I assume that the guidelines accurately reflect
the legislative purpose in this respect.
__________________________________________________________________
This is the same type of information the state
disseminated in carrying out the shaming punishments.
Because the offender would have been well known to those
who witnessed the shaming punishment, simply by placing
the offender on display before the community was enough
to disseminate his identity, his physical description, the
location of his dwelling, and the place of his employment.7
In fact, the shaming punishments became less frequent
when such information could not be conveyed by public
display alone. See Hirsch, supra, at 1228-34 (describing the
decreased use of shaming punishments as colonial
communities grew in size thereby increasing the likelihood
that the offender was a stranger to the witnesses of his
punishment); see also Dan M. Kahan, What do Alternative
Sanctions Mean?, 63 U. Chi. L. Rev. 591, 631 (1996) ("Early
Americans turned to imprisonment in large part because
they believed that existing criminal penalties had lost the
power to shame.").8 Moreover, as noted above, central to
__________________________________________________________________
7. Contrary to the majority's assertions, there is no evidence of which I
am aware that a colonial settlement would have known prior to the
shaming itself of an offender's crime. I suspect that if the community
was already aware of the crime, then shaming punishments would be
unnecessarily duplicative.
8. In an interesting, perhaps ironic twist, the need for notification
provisions arises because of the "anonymity afforded by modern society."
Recent Legislation, 108 Harv. L. Rev. 787, 790 (1995) (discussing the
Washington state sex offender notification statute). Piercing the veil of
modern anonymity may serve remedial purposes, such as alerting the
community to the risk that a convicted sex offender who resides nearby
may re-offend, but it also may serve punitive purposes, such as
providing the community a target for harassment.'
__________________________________________________________________
many of the shaming punishments was some notice-- e.g.,
a sign, a label, or a brand -- of the offense(s) for which the
offender was being punished.
In contrast, warning or wanted posters and quarantine
notices do not disseminate the same type of information
disseminated by notification provisions. A warning or
wanted poster, displayed in an effort to catch escaped
prisoners or to arrest alleged criminals, obviously does not
include information about the location of the offender's
current dwelling, nor of his current employment. If the
authorities had this information, they would know how to
apprehend the offender. Such posters also typically include
information about the facts of the individual's escape in the
case of a warning poster, and the facts of the individual's
alleged crime in the case of a wanted poster. Quarantine
notices, too, include information different from that
included in notification provisions. The most prominent
difference is that quarantine notices include health-related
information; such notices make no mention of criminal or
alleged criminal activity. Information provided pursuant to
notification, then, links the registrant to some act for which
he is blameworthy. Health related information is normally
not related to culpability.
The state attempts to distinguish the notification
provisions from the shaming punishments in terms of the
scope of the notification. New Jersey makes much of the
fact that the notification provisions, unlike the shaming
punishments, do not involve the dissemination of
information to the entire community. I believe that the state
overstates the significance of this difference. Though
notification under both Tier 2 and Tier 3 is intended to be
limited, the design of the provisions seems to encourage
more widespread dissemination. Tier 3 recipients are not
warned that the information is confidential. Tier 2
recipients are so warned, but I fail to see how that warning
is to be taken seriously. Under Tier 2, notification is given
to the staff of organizations charged with the care or
supervision of children and/or women. Such notification
would effect the remedial purpose of the statute-- the
protection of the children and women under the care of the
organizations -- only if the organizations pass the
notification information to the children and women under
their care.
New Jersey also emphasizes that notification is tailored
to the specific offender and may not occur at all. In
emphasizing this aspect of notification, the state fails to
appreciate fully the textured nuances of the shaming
punishments. Shaming punishments were also tailored to
the specific offender and often did not occur at all. For
instance, permanent labeling and branding were reserved
for offenders whose likelihood of re-offense was high. See
Friedman, supra at 40. Only the "deep-dyed sinner" would
suffer such a fate. Id. Further, shaming punishments were
by no means automatic; not all offenders would be so
punished. Fines or bonds for good behavior (payments
made to the authorities that were forfeited should the
surety commit a misdeed within a certain time period) were
common punishments for lesser offenses. See Hirsch, supra
at 1224. And, even for more serious offenses, an offender
could often simply pay a fine and avoid a shaming
punishment altogether. See Friedman, supra at 38
(describing the punishment for a woman who struck her
husband as either half an hour at a town meeting with her
offense written on her forehead or the payment of a fine to
the county).
5. Summary: Shaming Punishments as the Best Analogy
In sum, the foregoing analysis demonstrates that the
closest historical analogues to the notification provisions of
Megan's Law are the shaming punishments, which were
traditionally considered punitive.9 Like the shaming
_________________________________________________________________
9. It is interesting to note that in recent years courts nationwide have
returned to versions of the colonial shaming punishments. See Kahan,
supra, at 631-34. Courts might require individuals to wear t-shirts or
bracelets announcing their crime, to post placards on their houses or
bumper stickers on their cars, to stand in public places wearing signs,
or to apologize publicly to the community or their victims. See id. at 632-
34. The actual, stated purpose of these measures is punitive; in that
sense, they differ from Megan's Law. However, these measures suggest a
shared cultural understanding, still prevalent in our society, that
publicity concerning an individual's misdeeds can, and often is, intended
to punish that individual.
__________________________________________________________________
punishments, notification is carried out by the state. In
that sense, notification is unlike measures in which the
state merely allows private individuals or entities to access
information and then allows those individuals to release
that information more broadly. Moreover, like the shaming
punishments, notification provides the community with
information about the registrant's identity and physical
description, place of residence, place of employment, and
criminal history. Such information is judicially endorsed.
The information provided by notification is different from
that provided by warning or wanted posters, which do not
provide information about residence and employment, and
quarantine notices, which do not provide information about
criminal history; none of this information is judicially
endorsed. Above all notification is the functional equivalent
of shaming punishments; notification publishes information
about the registrant calculated to reach the entire
community and likely to lead to public opprobrium.
D. Does the Text, Legislative History, or Design of
the Notification Provisions Demonstrate That
They are not Punitive?
1. Introduction; The Role of Law Enforcement
Under Artway, the notification provisions must be
considered punishment provided the text or legislative
history does not demonstrate that they are not punitive. I
therefore turn to the question whether the text or legislative
history so demonstrates. This part of the analysis requires
an examination of the actual operation or design of the
measure at issue. See Hendricks, 65 U.S.L.W. at 4568-70
(examining the design of the Kansas civil commitment
statute). It is an inquiry focused on the question whether
the legislature designed the statutory scheme in such a
manner so as "to contradict the historical understanding of
[the measure] as punishment." Austin v. United States, 509
U.S. 602, 619 (1993).
Perhaps the most striking feature of the statutory design
is its placement of the tier classification determination and
of the notification process squarely within the criminal
justice system. The chapter that contains the registration
and notification provisions is contained in the state's Code
of Criminal Justice. Cf. Hendricks, 65 U.S.L.W. at 4568
(relying in part on the decision by the state of Kansas to
place its Sexually Violent Predator Act within the probate
code, instead of the criminal code, to conclude that the
challenged measure was not a criminal proceeding). It is
the Attorney General of New Jersey, a law enforcement
officer, who is charged with "promulgat[ing] guidelines and
procedures for the notification required" by Megan's Law.
N.J. Stat. Ann. S 2C:7-8(a) (1995).
The guidelines are to be formulated with the advice of a
"notification advisory council" comprised, at least in part, of
professionals from various fields outside of official law
enforcement, but the professionals are all involved, at least
to some degree, in the criminal justice system, broadly
defined, and this council provides, as its name suggests,
mere recommendations. See id. S 2C:7-11. Once in place,
the guidelines are to be implemented by the county
prosecutors: they determine the risk that a particular
offender poses for re-offending, thereby setting the tier
classification, and they determine the means of providing
notification. See id. S 2C:7-8(d).
As the guidelines are currently written, the county
prosecutors have significant leeway both in determining the
appropriate tier classification and in fashioning the proper
notification plan. Application of the Registrant Risk
Assessment Scale is by no means ministerial; the county
prosecutors must determine whether the particular offender
poses a low, moderate, or high risk to the community for
each factor in the Scale. Although the Scale provides
guidance to the prosecutors making this determination, it
does not eliminate from the process prosecutorial
evaluation. The guidelines allow prosecutors to enlist the
assistance of persons outside the prosecutor's office, such
as social workers or psychologists. However, the guidelines
leave formulation of the notification to the considered
judgment of the county prosecutors. It is up to those law
enforcement officials to ensure that the notification is
properly tailored to reach those at risk of being victimized
by the particular offender.
Finally, law enforcement officers, whether of the
municipality in which the offender intends to reside or of
the state police force, provide the actual notification. See id.
SS 2C:7-6, 2C:7-7.
2. Promoting the Aims of Punishment
The operation of the statute will, moreover, promote"the
traditional aims of punishment -- retribution and
deterrence." Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168 (1963); see Hendricks, 65 U.S.L.W. at 4568 ("As a
threshold matter, commitment under the Act does not
implicate either of the two primary objectives of criminal
punishment -- retribution or deterrence."). Of course,
simply because a measure has the effect of promoting
retribution and deterrence does not necessarily mean that
its purpose was to do so. See Artway, 81 F.3d at 1255.
Still, such an effect suggests that the particular measure
was not designed in a way that contradicts the historical
understanding of its analogues as punitive. That the
notification provisions of Megan's Law promote retribution
and deterrence is demonstrated as follows.
By publicizing an offender's crime to the community,
notification realizes justice, see id. (explaining that
retribution "does not seek to affect future conduct or solve
any problem except realizing `justice' "), in that it inflicts
suffering on the offender. It is undisputed that notification
results in shaming the offender, thereby effecting some
amount of retribution. This suffering "serves as a threat of
negative repercussions [thereby] discourag[ing] people from
engaging in certain behavior." Id. It is, therefore, also a
deterrent. There is no disputing this deterrent signal; the
notification provisions are triggered by behavior that is
already a crime, suggesting that those who consider
engaging in such behavior should beware. See Doe v.
Pataki, 940 F. Supp. 603, 623 (S.D.N.Y. 1996) ("The Act is
designed in such a fashion as to suggest that it is punitive.
It contains classic indicia of a punitive scheme. Its
provisions are triggered by behavior that is `already a
crime.' ").
3. Excessiveness
The design inquiry is also furthered by an analysis of
whether the notification provisions are excessive in relation
to their stated remedial purpose. In a several important
respects, they are. First, the criminal acts that, pursuant to
Megan's Law, trigger registration and potentially subject an
offender to notification, are over-broad. For example,
kidnapping, even without a concomitant sexual offense,
triggers notification, see N.J. Stat. Ann. S 2C:13-1(c)(2)(c);
so, too, does consensual sexual contact that is criminalized
merely because of the age of one of the participants, see,
e.g., id. S 2C:14-2(a)(1), (b), (c)(5). See Doe v. Pataki, 940 F.
Supp. at 623-24 (describing New York's Megan's Law as
excessive because it covers individuals such as a "21-year
old who engages in sexual intercourse with a 16-year old
(who is not a spouse)," a person who engages in incest, and
a person who restrains another under the age of 17);
Kansas v. Myers, 923 P.2d 1024, 1042-43 (Kan. 1996)
(describing Kansas's Megan's Law as excessive because
"[s]everal of the listed felonies [triggering registration and
notification] include what otherwise might be viewed as
voluntary sexual contact between two persons that is
considered criminal because of the minority status of the
victim and the fact that the victim is not married to the
accused").
Next, notification under Tier 3 is often provided to those
who simply do not need to know that there is a released sex
offender nearby. Tier 3 notification is to be provided to
"members of the public likely to encounter the person
registered." N.J. Stat. Ann. S 2C:7-8(c)(3) (1995). But the
"likely to encounter" standard does not limit notification to
vulnerable populations. It is a standard based largely on
geographic proximity, see Doe v. Poritz, 662 A.2d 367, 385
(N.J. 1995), rather than whether the recipient of
notification needs protection (e.g., a child) or can protect
others (e.g., a parent). Under the statute, a move by a
registrant into a retirement community will trigger
notification of his neighbors.10
_________________________________________________________________
10. The guidelines written to implement Megan's Law may be interpreted
to warn against this very problem. They suggest that the law
enforcement officials responsible for implementing the notification tailor
such notification so that it reaches only those at risk. However, the
examples provided by the guidelines suggest limitations on the type of
recipient organizations, not on recipient individuals. Moreover, the
guidelines stress that, notwithstanding this suggested tailoring,
geographic proximity remains the critical factor in determining the scope
of notification. Additionally, once the information is released, there is no
practical means of limiting its further distribution. See Kansas v. Myers,
923 P.2d 1024, 1041 (Kan. 1996) ("The print or broadcast media could
make it a practice of publishing the list [of released sex offenders] as
often as they chose. Anyone could distribute leaflets containing the
registered information anywhere and anytime.").
__________________________________________________________________
Similarly, the type of information required to be provided
by the guidelines is excessive; it is information individual
recipients often simply do not need to know. Individuals
who receive notification learn of an offender's place of
residence and his place of employment, regardless of their
relative locations. If an offender does not work at a location
near to his place of residence, which I suspect is not
uncommon, then such information is only in part useful for
protection. A recipient of notification who lives, attends
school, works, or is otherwise located near to an offender's
place of residence should be little concerned about the
location of the offender's place of employment (and vice
versa). Knowing the offender's place of residence might
lessen the risk that the recipient will become a victim of the
released offender; he or she can avoid the offender's house,
for example. But, knowing the offender's distant place of
employment offers no protective assistance to the recipient.
If the person is not likely to encounter the offender at the
offender's place of employment (or place of residence), why
would he or she need or want to know such information?
4. Summary of "Design"
In sum, the design of the notification provisions does not
contradict the historical understanding of analogues to
such provisions as punitive. Notification is placed in New
Jersey's criminal code and is structured and carried out by
state law enforcement officials. Further, notification
promotes the aims of retribution and deterrence. Finally, in
important respects, notification is excessive. The particular
recipients who receive notification and the type of
information they receive are not carefully tailored to the
remedial goals notification is intended to serve.
E. Notification Fails the History Subpart of Artway
As the foregoing discussion makes clear, the proper
historical analogues to the notification provisions of
Megan's Law are the shaming punishments of colonial
America. Clearly punitive, such punishments evidence an
objective punitive purpose for the notification provisions.
Because the design of the notification provisions--
especially the placement of the provisions in the state
criminal code and the placement of the responsibility of
enforcing them with law enforcement officials, the
excessiveness of their operation, and their promotion of
retribution and deterrence -- does not negate this objective
punitive purpose. Therefore, I believe Megan's Law fails the
history subpart of the second prong of the Artway test and
should be considered punishment. As a result, the
judgment of the district court should be reversed. This
conclusion is buttressed by my discussion infra at Part II.C.
of the extent to which, by reason of the network of Megan's
Laws throughout the nation, notification is akin to
banishment, another traditional colonial measure in the
nature of punishment. See supra, at Part I.C.2.11
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11. Because of my conclusion as to the history subpart of the Artway
test, I need not examine in detail the other subparts of the objective
purpose prong of the test. I mention them here only briefly. First, though
it is a very close question, I doubt that the notification provisions of
Megan's Law, as I have described their design, can be explained solely by
a remedial purpose. Second, because, as I have discussed, the
traditional understanding of historical analogues to the notification
provisions and the design of Megan's Law evidence an objective
retributive purpose, the third subpart of the objective purpose prong is
not implicated. In other words, the third subpart of the objective purpose
prong applies only "if the legislature did not intend a law to be
retributive but did intend it to serve some mixture of deterrent and
salutary [remedial] purposes." Artway , 81 F.3d at 1263. Here, such a
retributive purpose existed.
__________________________________________________________________
II. EFFECTS
A. Introduction
The final prong of the Artway test concerns the actual
effects of the challenged measure. According to Artway, "[i]f
the negative repercussions -- regardless of how they are
justified -- are great enough, the measure must be
considered punishment." Artway, 81 F.3d at 1263.12
__________________________________________________________________
12. Holding that the retroactive cancellation of early release credits
earned by prison inmates violated the Ex Post Facto Clause, the
Supreme Court examined the actual effect of the legislation at issue
without concern for the stated legislative purpose. See Lynce v. Mathis,
___ U.S. ___, 117 S. Ct. 891, 896-98 (1997). In so doing, the Court
reaffirmed its approach in California Department of Corrections v.
Morales, ___ U.S. ___, 115 S. Ct. 1597 (1995), on which Artway based
the effects prong of its test. See Lynce, 117 S. Ct. at 897.
__________________________________________________________________
The analysis required under this part of the test is one of
degree, and is guided by the signposts of already decided
cases. See id.
The conclusions I have already reached -- that Megan's
Law fails the objective purpose prong of the Artway test
and must, therefore, be considered punitive -- might make
it unnecessary for me to reach the "effects" issue. However,
because of the relevance of the effects to application of the
clearest proof standard on which the majority relies, see
infra Part III, because I believe that the majority's effects
analysis is seriously flawed, and also because the
enormous importance of the case counsels that I explain
why, I discuss the effects of the notification provisions. As
I will demonstrate, the majority, in undertaking its own
analysis, narrows the test fashioned in Artway . It does so
without support, and, given the tenor of the analysis,
unnecessarily. I also identify problems with its substantive
discussion.
B. Methodology: The Proper Standard for
Evaluating Effects
To begin, I quote from the majority's opinion: "It
necessarily follows that some limit must be placed on the
situations in which a measure's sting alone, despite its
remedial purpose and effect, will constitute punishment
under those clauses and that classification as punishment
on the basis of sting alone must be reserved for cases
involving deprivation of the interests most highly valued in
our constitutional republic. . . . Interests such as these are
sufficiently fundamental to our constitutionally secured
liberty that state interference with them can be justified
only by the most important of state interests." With the
second sentence, the majority states that the line marking
the boundary between a non-punitive and a punitive
measure varies according to the remedial interest sought to
be served by the measure. In other words, it appears that
the majority is holding that the more important the
remedial interest served by a particular measure the more
harsh the sting of the measure's effects may be before the
measure is classified as punitive. Nothing in Artway (or, for
that matter, in the Supreme Court jurisprudence on which
it draws) suggests such a formulation of the effects prong.
To the contrary, Artway posits that a particular sting either
falls on the punishment side of the line or it does not. At
issue here is the particular sting, not the particular
remedial interest.
The majority has thus introduced a difficult-to-apply
sliding scale into an already complex test. This needless
complication would render it nearly impossible to determine
whether a particular sting is punishment. For example, as
we know from Hawker v. New York, 170 U.S. 189 (1898),
the revocation of a license to practice one's profession is not
considered punishment. However, could such a revocation
be punishment if the remedial interest served by the
challenged measure is relatively unimportant? If so, at what
point does the importance of the remedial interests render
such a revocation non-punitive? Under the majority's
reading of Artway, an analysis of the effects prong requires
a two-track inquiry, guided only by a few fixed points. I fear
that this amorphous inquiry might lead to an elusive or
protean jurisprudence, something to be avoided.
Moreover, because the other prongs of the Artway test
adequately stir into the mix the remedial interests served
by the particular measure, we need not examine those
interests under the effects prong. The actual purpose prong
examines whether the legislature subjectively intended the
measure to advance remedial interests. All three subparts
of the objective purpose prong require the reviewing court,
to some degree, to consider the remedial interests the
legislature subjectively believed it was advancing by
enacting the challenged measure. Considering the stated
remedial purpose under the effects prong might over-
emphasize that stated purpose, thereby potentially allowing
diversion of attention from the actual operation of the
measure.
The majority also narrows the Artway test by requiring
that, at a minimum, a challenged measure act to deprive
affected persons of a sufficiently fundamental interest before
that measure is considered to cause punitive effects. The
majority offers no support for this proposition in either logic
or precedent, and I am unaware of any. Nothing in Artway
(or, for that matter, in the Supreme Court jurisprudence on
which it draws) suggests such a formulation of the effects
prong. In addition, at least as I read the majority's opinion,
defining the effects prong in this manner is unnecessary to
the result. The majority apparently believes that the effects
caused by notification simply are not harsh enough to
classify Megan's Law as punitive. Under my reading of
Artway, satisfaction of the effects prong does not require
overcoming such a difficult hurdle.
I am especially concerned in this regard because of the
indefiniteness of the majority's formulation. It is not
apparent to me what would constitute a "sufficiently
fundamental interest." Furthermore, without a clear
understanding of those interests the deprivation of which
might constitute punishment, I am also unsure as to
whether the majority adequately defines the universe of
interests that it, or I, would deem worthy of protection. In
short, I fear that the majority might have left too little room
to deal with unforeseen cases in this difficult area of
jurisprudence.
In addition to re-formulating the Artway test, the
majority also treats the effects of notification in such a
manner as to minimize the impact of those effects. First, it
emphasizes that the effects of which the offenders complain
-- e.g., isolation, public humiliation, loss of employment
opportunities, and physical violence -- are indirect.
Although I agree that such is the case, I remonstrate
against what seems to be overemphasis upon that aspect of
notification for, in itself, indirectness of effects is not
dispositive.
The Supreme Court addressed the question of directness
in California Department of Corrections v. Morales, ___ U.S.
___, 115 S. Ct. 1597 (1995), the very case on which Artway
bases the effects prong of its test. The Court struggled with
the question whether a change in the procedures governing
parole suitability hearings would effect an impact on a
prisoner's expected term of confinement. See id. at 1602-
05. In concluding that the measure did not constitute
punishment, the Court determined that the changes in the
relevant procedures "create[d] only the most speculative
and attenuated possibility of producing the prohibited effect
of increasing the measure of punishment for covered
crimes." Id. at 1603. The Court made plain, however, that
even the indirect effects of a measure could render it
punitive.
Here, the indirect effects of notification are neither
"speculative" nor "attenuated." In fact, notification advances
the stated remedial purposes of Megan's Law only insofar
as it induces many of these indirect effects. For example,
public safety is enhanced if potential victims of an offender
are warned to avoid him, thereby isolating him from the
larger community. If the legislature were not aware that at
least partial isolation would necessarily result from
notification, I doubt that it would have believed that
notification would serve the remedial purposes it sought to
advance. And, although not necessarily vital in ensuring
the efficacy of Megan's Law, other indirect effects -- e.g.,
harassment, loss of employment opportunities, and
physical violence -- surely were anticipated as also being
inevitable. New Jersey was not the first state to adopt
notification provisions, and the experiences of other states
must have informed the New Jersey legislature as it
considered Megan's Law.
In other states, notification has caused harassment, loss
of job opportunities, and the like. A study by the
Washington State Institute for Public Policy, released in
December 1993 (approximately ten months prior to the
enactment of Megan's Law), reported numerous instances
of harassment following notification in Washington, some
quite severe, under its 1990 Community Protection Act. See
Sheila Donnelly & Roxanne Lieb, Community Notification: A
Survey of Law Enforcement 7 (1993). In short, most of the
indirect effects of notification are expected and foreseeable.
The second manner in which the majority minimizes the
impact of the effects of notification is by separating the
analysis into two distinct parts. It first examines the effect
of notification on the reputational interests of the offender;
then it examines the effect of notification on the increased
risk of physical violence. The majority concludes that each
of these effects, by itself, does not produce a sting harsh
enough to classify notification as punishment. It fails,
however, to determine whether these effects, if examined
together, are sufficiently harsh. The difference between
these two approaches is manifest. Individual effects each
might produce only a moderate sting; adding together these
little stings might, however, produce a great big sting. In
the real world, it is the total sting that the recipient feels.
It is not clear why the majority chose not to add these
stings together. And, at least from my reading of Artway,
there is no justification for choosing not to do so. Rather,
I believe that Artway (and Morales) require an analysis of
all the effects of a measure, provided they are not too
speculative or attenuated, and here they are not.
C. Actual Effects
Turning from methodology to substance, I first note my
agreement with the majority's identification of the effects
caused by notification as including isolation, harassment,
loss of employment and housing opportunities, damage to
property, and physical violence.13
_________________________________________________________________
13. I recognize that analysis of the notification provisions presents
potentially difficult causation questions. For example, given that criminal
history information is publicly available, it is not clear whether the
harassment to which a released offender might be subject is caused by
government notification or by the general availability of such
information. It could well be that (and the record indicates instances in
which) a community becomes aware of the presence of a released
offender through the media. That said, the very fact that the state
believes it important to notify persons about the location of a sex
offender could both drive these media reports and spur local
communities into action. In such event, notification could be
characterized as a cause of these effects.
__________________________________________________________________
As is clear from the majority's description of the effects of
notification, the burden imposed by the collective weight of
all of these effects is borne by the offender in all aspects of
his life. At worst, the offender is literally cut off from any
interaction with the wider community. He is unable to find
work or a home, cannot socialize, and is subject to violence
or at least the constant threat of violence. At best, he must
labor within significant confinements. Although perhaps
some people will hire him or rent him a home, his social
intercourse with others is all but non-existent. The effects
of notification permeate his entire existence. See Doe v.
Gregoire, 960 F. Supp. 1478, 1486 (W.D. Wash. 1997)
("[H]ere the punitive effects are dominant and
inescapable."); Roe v. Office of Adult Probation, 938 F. Supp.
1080, 1092 (D. Conn. 1996) ("Notification is an affirmative
placement by the State of a form of public stigma on Roe,
and this stigma by its very nature pervades into every
aspect of an offender's life."). And, although the majority's
opinion is eminently fair, I think that it understates the
effects of notification provisions. Throughout the nation,
there are continual reports of harassment, threats,
isolation, and violence. In the margin, I mention some of
the most recent occurrences.14
__________________________________________________________________
14. In California, where the information about released sex offenders can
be accessed on CD-ROM, a released offender's car wasfirebombed. See
Carolyne Zinko, Flyers Falsely Call Artist a Molester, S.F. Chron., July
14, 1997, at A1. Reaction to notification is often swift; another report
from California notes that a neighborhood organized a protest within one
day of receiving notification in order to drive the released offender from
the community. See Bonnie Hayes & Frank Messina, Few Turn Out for
Megan's Law Viewing in O.C., L.A. Times, July 2, 1997, at A1. Further,
the community reaction does not easily wane. In New York, two
neighbors of a sex offender protested in front of his house for months in
an effort to force him to leave. See Today (NBC television broadcast,
June 24, 1997). Even those who have endeavored to help reintegrate
released sex offenders into the community have been thwarted; in some
areas, local churches have been unable to assist offenders because
individual congregants have made it impossible for the offenders to stay
in the flock. See Lisa Richardson, Megan's Law is Put to Test as Towns
Bounce Child Molesters, L.A. Times, May 25, 1997, at A3. In fact, so
potent a weapon is notification, that there are reports of false
notifications, presumably initiated by private individuals intent on
carrying out a personal vendetta. See Zinko, supra, at A1.
__________________________________________________________________
Although the question is very close, I believe that there is
a strong argument that the harshness of the effects of
notification are closer to imprisonment and revocation of
citizenship than to a loss of a profession or of benefits. Like
imprisonment and the revocation of citizenship, notification
is all-pervasive. In that sense, the offender has almost no
refuge from the sometimes severe effects of notification. He
may seek to move to another state, but the majority of
states has some form of community notification. He could,
perhaps, move out of the country to avoid this network of
domestic Megan's Laws. At the extreme, then, notification
has become, at least for that offender, akin to banishment.
See Doe v. Pataki, 940 F. Supp. at 626 ("Notification
statutes have resulted in the banishment of sex offenders
both literally and psychologically."). This pervasive aspect of
notification differentiates it from the loss of employment
opportunities and the loss of benefits.15
_________________________________________________________________
15. In both De Veau v. Braisted, 363 U.S. 144 (1960) (plurality opinion),
and Hawker v. New York, 170 U.S. 189 (1898), the Supreme Court held
that the loss of certain employment opportunities did not constitute
punishment. However, the loss of such opportunities was limited; in De
Veau, the relevant statute forbade a felon from work as a union official,
see De Veau, 363 U.S. at 145, and in Hawker , the relevant statute
forbade a felon from practicing medicine, see Hawker, 170 U.S. at 190.
In neither case did the statute limit all employment opportunities.
In Flemming v. Nestor, 363 U.S. 603 (1960), the Supreme Court held
that the loss of social security benefits did not constitute punishment. In
the context of the particular statute, however, the sting of that loss is
not as sharp as might be supposed initially. First, the spouse of the
beneficiary might still be eligible for benefits. See id. at 606 n.2. Second,
the loss is triggered by deportation from the United States. See id. at
604-05 & n.1. There is no indication whether the deportee might be
eligible for similar benefits in the country to which he is deported. Thus,
the loss of social security benefits in this context does not necessarily
render the affected individual destitute or without assistance; he has
other places to turn.
In a similar vein, we have recently held that the eviction of a tenant
from public housing because of a drug offense is not punitive, see Taylor
v. Cisneros, 102 F.3d 1334, 1341-1344 (3d Cir. 1996), but such an
eviction did not prevent the affected individual from obtaining housing
elsewhere.
__________________________________________________________________
Perhaps the most difficult question in this context is
whether notification is fairly considered punishment when
civil commitment -- a form of involuntary confinement -- is
not. In Hendricks the Supreme Court held that a state
statute allowing the confinement of convicted sex offenders
after the expiration of their prison term did not constitute
punishment. Important to the Court was the traditional
understanding of civil commitment as non-punitive. But
beyond that distinction, I note two respects in which
notification under Megan's Law may be considered more
harsh than the civil commitment statute at issue in
Hendricks.
First, anyone confined under the Kansas statute was
afforded some form of treatment if such was possible. See
Hendricks, 65 U.S.L.W. at 4569-70. No such treatment is
available to those subject to notification under Megan's
Law, and there is at least some evidence in the record that
the isolation engendered by notification may in fact cause
some offenders to recidivate. See Prentky Aff. P 4,
Appellants' App. at 189; see also Doe v. Pataki , 940 F.
Supp. at 628. Thus, the effects of civil confinement might
be rehabilitative, while those of notification are exactly the
contrary. Second, the Kansas statute required a yearly
reevaluation of the confined offender. See Hendricks, 65
U.S.L.W. at 4569. The registration and notification
provisions in Megan's Law are applicable for at least fifteen
years. See N.J. Stat. Ann. S 2C:7-2(f) (1995). It is possible,
then, that the sting of notification will last far longer than
that of civil commitment.
D. Summary
In sum, although I do not rely on my analysis of the
effects prong of the Artway test to support my ultimate
conclusion, I note that the majority's discussion of effects is
seriously flawed in terms of both procedure and substance,
casting further doubt upon the judgment and shoring up
still further my dissenting posture. The majority improperly
and unnecessarily narrows the effects prong of Artway by
requiring that a measure deprive an individual of a
constitutionally secured fundamental right and by
examining the effects in isolated groupings. Finally, its
substantive discussion of actual effects is, in important
respects, flawed.
III. THE "CLEAREST PROOF" DOCTRINE
The majority's most serious challenge to my position
inheres in its argument, citing Hendricks and referring to
Ursery, that only the "clearest proof" will negate
congressional intent to deem a measure non-punitive. In
terms of the Artway test, then, the majority effectively holds
that should a measure be considered non-punitive under
the test's first (actual purpose) prong, then there is a strong
presumption that the measure is non-punitive, and only
the clearest proof as to the second (objective purpose) and
third (effects) prongs of the test will overcome that
presumption. I am unpersuaded. First, the etiology of the
"clearest proof" doctrine is such that I doubt that the
Supreme Court would apply it in this context with such
clear and direct historical antecedents, so plainly punitive
in character, to the community notification provisions of
Megan's Law. Second, even if the standard were applied
here, I believe that the historical context of notification, the
design of Megan's Law, and the effects resulting therefrom,
provide sufficiently clear proof of objective intent to negate
remedial purpose.
The clearest proof standard was first articulated in
Flemming v. Nestor, 363 U.S. 603 (1960). In Flemming, the
Supreme Court addressed a contention that the legislative
history and design of a statute that allowed the Secretary of
Health, Education, and Welfare to terminate Social Security
benefits payable to aliens deported due to their political
affiliations evidenced a punitive congressional intent that
negated a stated remedial intent. The Court stated:
We observe initially that only the clearest proof could
suffice to establish the unconstitutionality of a statute
on such a ground. Judicial inquiries into Congressional
motives are at best a hazardous matter, and when that
inquiry seeks to go behind objective manifestations it
becomes a dubious affair indeed. Moreover, the
presumption of constitutionality with which this
enactment, like any other, comes to us forbids us
lightly to choose that reading of the statute's setting
which will invalidate it over that which will save it.
Id. at 617.
The Court has since employed the clearest proof standard
in at least six cases. In Communist Party of the United
States v. Subversive Activities Control Board, 367 U.S. 1
(1961), the Court considered whether, despite manifest
congressional intent to the contrary, a measure was
actually intended to outlaw the Communist Party. The
Court stated that only the clearest proof would negate that
congressional intent. In United States v. Ward, 448 U.S.
242 (1980), the Court required the clearest proof that,
despite the manifest intent to create a civil proceeding, a
fine under the Federal Water Pollution Control Act was
nevertheless a criminal proceeding. In United States v. One
Assortment of 89 Firearms, 465 U.S. 354 (1984), and in
Ursery, the Court applied the clearest proof standard to
determine whether civil forfeiture statutes were punitive.
Examining the Illinois Sexually Dangerous Persons Act, the
Court in Allen v. Illinois, 478 U.S. 364 (1986), stated that
only the clearest proof would negate the legislative intent
that proceedings determining whether an individual should
be committed to psychiatric care were civil in nature.
Finally, and most recently, in Hendricks, the Court used
the clearest proof standard in the context of a challenge to
a civil commitment statute.
Although the Supreme Court has repeatedly applied the
clearest proof standard in the context of challenges alleging
that subjective legislative intent is different from objective
legislative intent, I am unwilling to apply the clearest proof
standard in this context, at least until the Supreme Court
makes it clear that doing so is appropriate. The clearest
proof standard creates a nearly irrebuttable presumption
that favors subjective legislative intent over objective
manifestations of that intent. In an excess of caution, I
eschew exploration of the extent to which such a
presumption can create incentives for legislatures to
obscure their actual intent with subjective intent, rendering
it unwise to employ it in certain circumstance. The purpose
of the "clearest proof" exercise is to provide a technique to
determine legislative intent. This technique is unnecessary
here, where, as I have explained, notification measures are
so plainly the direct descendants of historical punitive
schemes. It seems to me, moreover, that something more
than subjective intent alone must be shown to abrogate the
historical understanding that notification measures are
punitive. In other words, a legislature's simply denying that
it is operating outside of a shared cultural tradition does
not make it so.
This argument may be illuminated by flipping the coin
over, as it were, and looking at the issue by assuming that
the clearest proof standard applies in this case. In such
event, I believe that such proof exists. At the threshold, I
warn against placing too much emphasis on the meaning of
"clearest proof." As Flemming and its progeny make patent,
the standard is intended as a kind of warning to the federal
courts to give legislatures the benefit of the doubt. It is thus
consistent with familiar canons of statutory interpretation
and constitutional adjudication stating that legislatures are
rational bodies that intend to function within their powers
to enact lawful measures. In cases in which there is little
doubt, however, there is no benefit to give.
Here, there is little doubt. As Part I.C. makes clear,
notification measures have historically been considered
punitive. As Part I.D. makes clear, the particular design of
notification under Megan's Law in no way contradicts this
history. And, as Part II makes clear, the effects of
notification measures suggest strongly their punitive
nature; the majority's efforts to dilute the Artway effects
prong, see supra Part II, are unavailing. Taking the
foregoing factors together, then, I conclude that sufficient
proof of an objective punitive intent motivating the
notification provisions of Megan's Law exists to negate the
subjective remedial intent.
IV. CONCLUSION
We should and do endeavor mightily to protect our
children from the dangers of the modern world. There is,
however, a background risk of violence from which we
simply cannot shield them. I believe that the New Jersey
legislature desperately wanted to do all that it could to
prevent the murder of any child at the hands of a released
sex offender. But, if a released sex offender is intent on
repeating his offense, there is no reason to believe he will
necessarily limit himself to his surrounding community (or,
for that matter, limit himself to his state).
Unfortunate though it may be, dangers to our children
can come from anywhere. People in the community,
especially parents, therefore justifiably warn children more
sternly about interacting with strangers, wandering too far
from home, staying out past dark, etc. There is no way to
determine how many crimes will be prevented by all of the
Megan's Laws throughout the country. I suspect, however,
that the change in protection secured by notification will be
marginal at best. Query whether this marginal change is
worth tampering with "an essential thread in the mantle of
protection that the law affords the individual citizen." Lynce
v. Mathis, ___ U.S. ___, 117 S. Ct. 891, 895 (1997)
(discussing that group of constitutional provisions
protecting against the retroactive application of new laws).
It is instructive to note that this issue bears a similarity
to the challenge the Supreme Court recently faced in Reno
v. ACLU, 65 U.S.L.W. 4715 (U.S. June 24, 1997) (No. 96-
511). There, underlying the Court's decision to strike down
key provisions of a statute purporting to rid the Internet of
obscenity is the notion that vital constitutional protections
must not be swept away in the understandable fervor to
protect our children. Basic constitutional rights
fundamental to ordered liberty, like the freedom of speech
and the right to be free from the retroactive application of
the laws, impose on each of us certain burdens. We will
remain a free people only so long as we accept those
burdens, even in the face of the very safety of our children.
Recognizing the rights of released sex offenders,
unpalatable though that may be, is one of them.
Although I am outvoted on the double jeopardy/ex post
facto issue, I am at least comforted by our holding that the
notification machinery, with all of its attendant
consequences, will not be triggered without the significant
safeguard of requiring the state to establish the case for
notification by clear and convincing evidence.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit