Populism
and
Punishment
Sex Offender Registration
and Community Notification
in the Courts
BY WAYNE A. Logan
T
oday, over 700,000 individuals are subject to sex
offender registration and community notification
laws, now in effect nationwide. Originating in the
early to mid-1990s, the laws require that convicted offenders provide identifying information to government
authorities (registration), which is then made publicly
available in the hope of discouraging recidivism, facilitating investigations, and enabling community members to
take self-protective measures (community notification).
Registration and notification have thus far enjoyed the
backing of the US Supreme Court, including a 2003 decision in which a six-member majority held that retroactive
application of an Alaska provision did not violate the ex
post facto clause, because it was punitive neither in intent
nor effect. (See Smith v. Doe, 538 U.S. 84 (2003).)
Eight years hence, amid harsher and more expansive
registration and community notification provisions, the
question arises: Does new possibility exist to challenge the
laws as unconstitutional retroactive punishment under ex
post facto principles, in state and federal courts alike?
The “Punishment Question”
The ex post facto clause, contained in Article I of the
US Constitution, bars application of state and federal
penal laws that are retroactive in their effect. Among the
categories of such laws is that which “changes the punishment, and 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 clause, like
other Article I provisions, plays a structural role in the
nation’s constitutional democracy: It guards against the
threat of legislatures bowing to “political pressures . . . to
use retroactive legislation as a means of retribution against
unpopular groups or individuals.” (Landgraf v. USI Film
Products, 511 U.S. 244, 266 (1994).) In keeping with this,
down the years the ex post facto prohibition has been invoked by a veritable “who’s who” of scorned individuals,
including erstwhile supporters of the Confederacy. (See
Cummings v. Missouri, 71 U.S. (4 Wall. 277 (1867).)
In 2003, in Smith v. Doe, the court addressed whether
a law retroactively targeting yet another despised group—
convicted sex offenders—could bring a challenge under
the clause. The law at issue, Alaska’s registration and notification provision, was one of a wave of state registration
and community notification laws enacted in rapid-fire
succession in the 1990s that continue to enjoy significant
public popularity today. (See Wayne A. Logan, Knowledge as Power: Criminal Registration and Community Notification Laws in America 49-84, 109 (Stanford
Univ. Press, 2009) [hereinafter Logan, KAP].) Alaska’s
registration requirement, like other state laws, required
that convicted sex offenders (and child kidnappers) provide identifying data to authorities, including home and
work addresses, conviction history, physical features, vehicle descriptions, photographs, and fingerprints, after
the time their crimes were committed. To ensure compliance, the state threatened registrants with criminal
prosecution if they did not update their information in
the event of any developments (e.g., changing residences,
growing a beard) or failed to attest to the continued accuracy of information at least annually, by mail-in verification, possibly for their lifetimes. To effectuate community notification, registry information was made publicly
available by means of an Internet website operated by
the Alaska Department of Public Safety.
To determine whether the law qualified as punishment, the threshold requirement for application of the
clause, the court applied its long-established “intent-ef-
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fects” test, assessing first whether the law was punitive in
intent, and if not, whether its actual effects were so punitive as to negate civil purpose. The six-member Smith
majority accepted the Alaska Legislature’s avowed objective—“protecting the public” by imposing “restrictive measures on sex offenders” and making registrants’
identifying information publicly available—and concluded that the law was intended as a civil, non-punitive
regime. (Smith, 538 U.S. at 96.)
Turning to its effects analysis, the majority deployed a
test derived from Kennedy v. Mendoza-Martinez, 372 U.S.
144 (1963), asking whether Alaska’s law in operation entailed measures “regarded in our history and traditions
as punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment;
has a rational connection to a nonpunitive purpose; or is
excessive with respect to this purpose.” (Smith, 538 U.S.
at 97 (citation omitted).)
With respect to historical parallel, the majority rejected petitioners’ argument that notification resembled
shaming punishments, concluding that any stigma experienced by registrants resulted from the mere “dissemination of accurate information about a criminal record,
most of which is already public,” and otherwise was a
“collateral consequence” of the information-based regulatory scheme. Similarly, Alaska’s law did not impose an
“affirmative disability or restraint” sufficient to qualify
as punishment. The law did not imprison, the “paradigmatic” punitive restraint, and did not impose probation and parole-like conditions allowing registrants to
live and work where they wished. At the same time, the
fact that registration and notification might deter future
crimes, and that Alaska’s decision to tie duration of registration to seriousness of offense history had a retributive quality, did not suffice to undercut the law’s regulatory objective. According to the majority, “[a]lthough
the public availability of the information may have a
lasting and painful impact . . ., these consequences flow
not from the Act’s registration and dissemination provisions, but from the fact of convictions, already a matter
of public record.” (Id. at 97-102.)
Nor did the fourth and fifth Mendoza-Martinez factors
dictate a finding of punitive effect.
Invoking the widely accepted (yet erroneous) tenet
that sex offenders as a group have comparably high recidivism rates, the majority stated that Alaska’s decision
to subject broad categories of sex offenders to registration and notification, based on fact of conviction alone,
without assessing individuals for recidivist risk, qualified
as a reasonable regulatory judgment. With the “minor
WAYNE A. LOGAN is the Pajcic Professor of Law and associate dean
for academic affairs at Florida State University College of Law.
condition of registration” in the balance, the Smith majority concluded, Alaska was free to dispense with individual risk assessments “and allow the public to assess
the risk on the basis of accurate, nonprivate information
about the registrants’ convictions.” Likewise, neither
potential lifetime registration nor use of the Internet to
carry out notification was excessive given what the court
saw as the delayed recidivist propensity of sex offenders
and their possible mobility. (Id. at 102-05.)
Dubious Doctrine
The Smith majority’s determination of the nonpunitive
character of Alaska’s law was and remains questionable.
As a threshold matter, the majority’s inference of civil
regulatory intent showed a basic miscomprehension of
broader changes in US correctional strategy, which in
recent years has gravitated away from traditional brick
and mortar incapacitative methods toward communitybased, information-related ones. (See Wayne A. Logan,
Federal Habeas in the Information Age, 85 Minn. L. Rev.
147, 173-81 (2000).) The majority was oblivious to this
reality and to the integral role played by registration and
notification in the shift.
The Smith majority’s analysis of the effects of Alaska’s law was no more convincing. As Justice Ginsburg
(joined by Justice Breyer) noted in dissent, registration
and notification impose “onerous and intrusive obligations” much like probation and parole conditions,
which indisputably qualify as punishment, and expose
individuals “through aggressive public notification of
their crimes, to profound humiliation and communitywide ostracism.” (Smith, 538 U.S. at 115 (Ginsburg, J.,
dissenting).) Moreover, as Justice Stevens pointed out,
also in dissent, merely because “recidivism is the statutory concern” did not justify a nonpunitive characterization: The same rationale supports enactment of “three
strikes” sentence punishment enhancement laws. (Id. at
113-14 (Stevens, J., dissenting).)
The foregoing, however, significantly understates
the actual effects of registration and community notification, especially on the question of whether the laws
impose an “affirmative disability or restraint.” From its
origin in the 1930s, when it targeted criminal convicts
more generally, not sex offenders in particular, registration has sought to instill in its targets a sense that they
are being watched. In 1950s Philadelphia, for instance,
one local detective supported registration because “it led
the ‘criminals’ to believe that they were under the constant surveillance of the police department. The registrant’s feeling of constant surveillance and obligation
to notify police of any change in address might impose
some regimentation upon the criminals.” (Logan, KAP
at 139.) Today, with community notification and more
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All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in
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intensive registration requirements, this sense of control
has been immeasurably expanded. Taken together, the
effects of registration and notification impose what sociologist Stanley Cohen years ago termed a “hidden custody”—Visions of Social Control: Crime, Punishment
and Classification 71 (1985)—a reality ignored by the
Smith majority, which examined such effects in isolation
and downplayed them.
The constant necessity to provide identifying information to the government, and to verify and update its
accuracy, potentially for one’s lifetime under threat of
criminal prosecution, plainly singles out registrants for
unique burden and affects their freedom of movement.
As noted by one state appellate court judge: “It is inconceivable to think that one who must, as his first act, go to
local law enforcement and announce that he is a felon convicted of a sex offense will not be deterred from moving in
order to avoid divulging that ignominious event.” (State v.
Taylor, 835 P.2d 245, 250 (Wash. Ct. App. 1992) (Agid, J.,
dissenting).) The disabling consequences of community
notification are even more significant, including forced
moves from homes, job terminations, vandalism, harassment, physical violence (including killings), and suicides.
(Logan, KAP, at 125-29.) To the majority, however, such
outcomes were “conjecture” and otherwise lacked bearing
on the punishment question. This was because the harms
resulted only from “the dissemination of accurate information about a criminal record, most of which is already
public.” (Smith, 538 U.S. at 98.)
Again, strong reason exists to dispute the court’s assessment. While notification indeed disseminates publicly available information (whether it is “accurate,” as
research consistently shows, is another question), such a
characterization vastly understates what is entailed. Notification aggregates and discloses otherwise unconnected
information stored in disparate locations, including home
addresses, which traditionally have triggered privacy concern regardless of their public availability. (See Paul P. v.
Verniero, 170 F.3d 396, 404 (3d Cir. 1999).) Moreover, the
context in which the aggregated information is conveyed
is far from neutral. The government’s singling out of certain individuals, combined with “legislative findings” that
those targeted pose particular risk, makes clear that something more than mere informational disclosure is at work.
As one federal judge observed:
While it might seem that a convicted felon could
have little left of his good name, community notification . . . inflict[s] a greater stigma than would result from conviction alone. Notification will clearly
brand the plaintiff as a “criminal sex offender” . . . a
“badge of infamy” that he will have to wear—and
strongly implies that he is a likely recidivist and a
danger to his community.
(Doe v. Pryor, 61 F. Supp. 2d 1224, 1231 (M.D. Ala.
1999) (citations omitted).)
A Changed Litigation Landscape?
The court’s decision in Smith v. Doe, however, may well
not prove to be the last word. One reason for this lies in recent state court invocations of their own state constitutions
to grant relief on ex post facto grounds, renewing decadesold hope of a rights-enhancing “new federalism.” (See William J. Brennan, State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489 (1977).) In 2008,
for instance, the Alaska Supreme Court, interpreting the
Alaska Constitution’s identically worded ex post facto provision, and applying the intent-effects test, disagreed with
the Smith majority that Alaska’s law was nonpunitive. (Doe
v. State, 189 P.3d 999 (Alaska, 2008).) Assuming without
deciding that the state legislature intended the law to be
nonpunitive, the Doe court found its effects to be punitive,
relying on views expressed by the Smith dissents.
A year later, the Indiana Supreme Court unanimously
found that the increasingly onerous features of Indiana’s
law, including in-home visits by police and the requirement that registrants carry a personal identification card
at all times, violated the state’s ex post facto constitutional provision. (Wallace v. State, 905 N.E.2d 371 (Ind.,
2009).) Applying the Mendoza-Martinez factors, yet eschewing the Smith court’s divide-and-conquer approach,
the Wallace court had no difficulty finding Indiana’s law
to be punitive in effect. With respect to the first factor,
whether the law retroactively imposed an affirmative
disability or restraint, for instance, the court found the
registration-related effects to be “significant and intrusive.” In addition, “aggressive notification . . . exposes
registrants to profound humiliation and communitywide ostracism,” which subjected registrants to a form of
“‘vigilante justice,’ which may include lost employment
opportunities, housing discrimination, threats, and violence.” (Id. at 380.) Altogether, of the seven MendozaMartinez factors concerning punitive effect, the court
found that six favored a finding of punitiveness (according to the court, the registry advanced the regulatory
purpose of public protection). (Id. at 384.)
Later in 2009, the Maine Supreme Court found that
retroactive application of Maine’s registration and notification provision violated both the state and federal
ex post facto clauses. (See State v. Letalien, 985 A.2d 6
(Maine, 2009).) Applying the Mendoza-Martinez factors,
the Letalien court was at pains to distinguish the Maine
law from the Alaska law upheld in Smith. In particular,
whereas Alaska’s law did not require in-person information verification by registrants, a matter emphasized by
the Smith majority as being significant in the punishment
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analysis (Smith, 538 U.S. at 101), Maine’s did so require
(on a quarterly basis), which the court found “imposes
a disability or restraint that is neither minor nor direct.”
(Letalien, 985 A.2d at 18.) At the same time, the Letalien
court expressed its disagreement with the Smith majority
relative to parallel provisions, invoking Justice Stevens’s
dissent in support of its conclusion that Maine’s law (like
Alaska’s) predicated registration merely on the fact of
criminal conviction, rather than assessing individuals for
risk of recidivism. (Id. at 22, citing Smith, 538 U.S. at
112-13 (Stevens, J., dissenting).)
In sum, state court applications of their own ex post
facto provisions, along with the advent of registration and
community notification laws with more onerous requirements and negative consequences for registrants, provide
advocates new bases for ex post facto challenges. When
contemplating a challenge, litigants should lend particular attention to state and local laws tying registration
to legal limits on where individuals can live (e.g., near
parks, schools, and other places where children congregate), which courts have deemed punitive for ex post facto
purposes. (E.g., State v. Pollard, 908 N.E.2d 1145 (Ind.,
2009) (applying Indiana Constitution); Commonwealth
v. Baker, 295 S.W.3d 437 (Ky., 2009) (applying Kentucky
and US Constitutions).) They should also emphasize the
fifth Mendoza-Martinez factor, asking whether there exists
a “rational connection to a nonpunitive purpose,” which
the Smith majority considered “a most significant factor”
in assessing the punitive effect of a law (Smith, 538 U.S.
at 102.). Today, accumulating evidence calls into question the public safety efficacy of registration and notification laws (Logan, KAP 114-17), and raises concern over
whether the adverse personal consequences of the laws
might actually encourage recidivism and promote a false
sense of community security. (Id. at 120-29.) While, as the
Smith majority observed, a provision is not punitive “simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance,” and “need not be the best
choice possible to address the problem” (Smith, 538 U.S.
at 105), empirical work affords compelling basis to challenge the increasingly broad coverage and onerous quality
of the laws as irrational and excessive.
Ultimately, however, litigants will need to surmount
a major doctrinal obstacle: Prove that there exists the
“clearest proof ” of punitive effect to “transform what
has been denominated a civil remedy into a criminal penalty.” (Id. at 92.) The deferential standard, while an accepted benchmark of statutory construction more generally, is inapposite in the context of a challenge under the
ex post facto clause, the structural purpose of which has
always been to second-guess legislation and serve as a
check against excess. (See Wayne A. Logan, The Ex Post
Facto Clause and the Jurisprudence of Punishment, 35
Am. Crim. L. Rev. 1261, 1289-91 (1998); see also Smith,
538 U.S. at 115 (Ginsburg, J., dissenting).) Be that as it
may, with evidence of the punitive effects of registration and community notification now in hand, it is this
second-stage question that should dominate judicial attention, not the uncritical scrutiny and disregard of the
punitive effects of the laws operative to date.
Conclusion
In Hines v. Davidowitz, 312 U.S. 52, 70 (1941), a case
challenging domestic registration of immigrant aliens,
the US Supreme Court emphasized that “champions of
freedom for the individual have always vigorously opposed burdensome registration systems.” Seven decades
hence, Americans accept and support use of highly
burdensome registration requirements, at least when
convicted sex offenders are the target. Meanwhile, community notification, which magnifies such burdens by
spreading stigmatizing registry information to the world
at-large, has become an accepted function of government.
To students of crime control policy, the shift in sentiment
is no surprise, providing yet another example of the nation’s
harshly punitive zeitgeist. Whatever merit registration and
community notification might have as public safety strategies, imposed at time of sentence, their retroactive application raises concern that the ex post facto clause’s structural
constraint on legislative excess is being ignored.
As Chief Justice John Marshall long ago recognized,
“the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the
feelings of the moment . . . ,” and adopted the ex post facto clause as a bulwark against such legislative tendencies.
(Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38 (1810).)
With registration and community notification, the “moment” has endured since the 1990s, with ever-more onerous burdens and negative consequences retroactively imposed on a maligned subpopulation. As before, the job
falls to the judiciary to ensure that legislatures do not succumb to the “hydraulic pressure . . . before which even
well-settled principles of law will bend.” (Northern Sec.
Co. v. United States, 193 U.S. 197, 401 (1904) (Holmes,
J., dissenting).) To date, the Supreme Court has failed to
heed the call. However, as discussed here, increasing reason now exists for the court—and state courts—to invoke
ex post facto principles to rein in the proliferating reach
and onerous effect of registration and community notification laws. n
Published in Criminal Justice, Volume 26, Number 1, Spring 2011. © 2011 by the American Bar Association. Reproduced with permission.
All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in
an electronic database or retrieval system without the express written consent of the American Bar Association.