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DOE v. PATAKI

March 21, 1996

JOHN DOE, RICHARD ROE and SAMUEL POE, individually and on behalf of all other persons similarly situated, Plaintiffs, against HON. GEORGE E. PATAKI, in his official capacity as Governor of the State of New York, et al., Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 In this constitutional challenge to the New York State Sex Offender Registration Act, N.Y. Correction Law § 168 et seq. (McKinney Supp. 1996) (the "Act"), commonly referred to as New York's "Megan's Law," plaintiffs move for a preliminary injunction enjoining retroactive application of the Act's registration and notification provisions.

 This case presents a vivid example of the conflict that often arises between the rights of individuals and the needs of society as a whole. Defendants present compelling arguments in support of a registration and notification system for those who would victimize children and commit sex crimes. Indeed, defendants poignantly argue that it is a "sad commentary" on our society that we continue to name laws after children who have been murdered or abducted. (Tr. 45). *fn1" Nonetheless, no matter how compelling the reasons, no matter how pure the motive, constitutional protections for individuals -- even unsympathetic ones -- cannot be cast aside in the name of the greater good.

 Would-be child abusers, rapists, and other sex offenders are on notice, and have been since the Act was passed, that if they commit these crimes now, they will subject themselves not only to possible imprisonment but also to strict registration requirements and perhaps intense public scrutiny. Those who committed their crimes before the Act took effect, however, have a right not to be punished on an ex post facto basis. The public notification provisions of the Act constitute punishment, and if their implementation is not enjoined, plaintiffs will suffer irreparable harm. Hence, plaintiffs' motion for a preliminary injunction is granted with respect to the public notification provisions of the Act. Because I find, however, that plaintiffs will not suffer irreparable harm if they are required to register during the pendency of this lawsuit, their motion is denied with respect to the registration provisions. *fn2"

 A. The Act

 
1. Background

 The Act was passed on July 25, 1995 and became effective on January 21, 1996. It requires individuals convicted of certain sex offenses to register with law enforcement officials, and it authorizes those officials, in some circumstances, to notify the public of the identity and whereabouts of registrants.

 At least 46 states have enacted laws requiring convicted sex offenders to register with law enforcement authorities. Many of these statutes also provide for public notification of the presence of registered sex offenders in local communities. The statutes resulted from growing public concern over the substantial threats presented by sex offenders and a belief that sex offenders as a group are more likely to repeat their crimes.

 In enacting these laws, legislatures have articulated two goals: (i) enhancing law enforcement authorities' ability to fight sex crimes and (ii) protecting communities, and particularly children, by notifying them of the presence of individuals who, because of their history of committing sex crimes, may present a danger. Although some of these registration and notification laws have been in existence for a number of years, the laws are now commonly known as "Megan's Laws" because of the case of seven-year-old Megan Kanka, who was raped and murdered in 1994 by someone who lived across the street from her home. Unbeknownst to Megan and her family, the individual was a twice-convicted sex offender.

 In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071 et seq. (the "Federal Act"), which was named for an 11-year-old boy who was abducted when he was returning home from the store. The Federal Act encourages states, through funding incentives, to enact laws requiring individuals convicted of crimes against children or sexually violent offenses to register with state law enforcement agencies. The Federal Act permits law enforcement authorities to release certain information in certain limited circumstances. Id. at § 14071(d). The Federal Act, however, does not require states to apply their particular laws retroactively.

 To date, a number of registration statutes have been challenged in state courts. See, e.g., Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (N.J. 1995) (upholding New Jersey law); State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (Wash. 1994) (upholding Washington law); State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (Ariz. 1992) (upholding Arizona law). Only two federal courts have ruled on the constitutionality of sexual offender registration and notification acts. See Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995); Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994). Both federal courts found constitutional infirmities with the statutes at issue. Judge Politan of the District of New Jersey and Judge Sedwick of the District of Alaska both held, in substance, that retroactive application of public notification provisions violated the Ex Post Facto Clause. Artway, 876 F. Supp. at 692; Rowe, 884 F. Supp. at 1380; cf. Young v. Weston, 898 F. Supp. 744 (W.D. Wa. 1995) (holding unconstitutional, on ex post facto and other grounds, Washington's "Sexually Violent Predator" statute, which provided for involuntary commitment of "sexually violent predators" after they completed their sentences).

 The New York State legislature used New Jersey's registration statute as a model, but attempted to cure the flaws noted by the court in Artway. The Act's preamble contains the following statement of the Legislature's purpose or findings:

 
The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and . . . the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.

 The preamble then states that "the system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct" and "will bring the state into compliance with the federal crime control act."

 
2. Registration

 The Act establishes two categories of offenses that require registration: "Sex offense[s]," § 168-a(2), and "Sexually violent offense[s]," § 168-a(3). Sex offenses include, for example, convictions for rape in the second or third degree, sodomy in the second or third degree, or sexual abuse in the second degree, and convictions for attempt thereof. § 168-a(2) (citing N.Y. Penal Law §§ 130.25, 130.30, 130.40, 130.45, 130.60 (McKinney 1987 & Supp. 1996)). Sexually violent offenses include, for example, convictions for rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree, and convictions for attempt thereof. § 168-a(3) (citing N.Y. Penal Law §§ 130.35, 130.50, 130.65 (McKinney 1987 & Supp. 1996)).

 Under the Act, a "sex offender" is any person convicted of a "sex offense" or a "sexually violent offense." § 168-a(1). Sex offenders are required to register with the Division of Criminal Justice Services (the "DCJS") within 10 days after discharge, parole, or release. § 168-f(1). Sex offenders who were "on parole or probation" on the effective date of the Act, i.e., January 21, 1996, are required to register, § 168-g(2), even though the conduct that led to the conviction occurred before the Act was passed. Sex offenders must register annually for ten years as well as "within ten calendar days prior to any change of address." *fn3" §§ 168-f(2), (4), 168-h.

 To register, sex offenders must provide such identifying information as name, date of birth, sex, race, height, weight, eye color, driver's license number, and home address. They must also provide a description of the offense, the date of conviction, and the sentence imposed as well as a photograph and fingerprints. §§ 168-b, 168-i.

 The failure to register as required by the Act is a crime. § 168-t. Any sex offender required to register under the Act may petition the sentencing court to be relieved of the duty to register. § 168-o.

 
3. Notification

 The Act provides for three levels of notification to law enforcement agencies and/or the public that increase as the risk of a "repeat offense" and danger to the public increases. § 168-l(6).

 If the risk of a repeat offense is "low," the sex offender is assigned risk level one and only notification to law enforcement agencies is authorized. § 168-l(6)(a). Thus, this risk level does not provide for any public notification.

 If the risk is 'moderate," the offender is assigned risk level two. Under this level, the appropriate law enforcement agencies are notified and are authorized, in turn, to disseminate an "approximate address based on the sex offender's zip code," a photograph, and background information to "any entity with vulnerable populations." § 168-l(6)(b). The Act does not define the term "any entity with vulnerable populations," but the Act does provide that "any entity receiving information on a sex offender may disclose or further disseminate such information at [its] discretion." Id.


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