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DOE v. PATAKI

September 24, 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 case, plaintiffs challenge the constitutionality of the New York State Sex Offender Registration Act, N.Y. Correction Law §§ 168 to 168-v (McKinney Supp. 1996) (the "Act"), as applied to individuals who committed their crimes before the Act took effect. I issued a preliminary injunction on March 21, 1996 enjoining retroactive application of the "public notification" provisions of the Act. Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996). The parties have now filed cross-motions for summary judgment.

 The principal issue presented is whether the Act increases the punishment for sex offenses after the fact. If so, the Act would violate the Ex Post Facto Clause of the United States Constitution if it were to be applied to individuals who committed their crimes before the Act took effect on January 21, 1996. If not, the Act could be applied retroactively without violating the Ex Post Facto Clause.

 The provisions of the Act, commonly referred to as New York's "Megan's Law," are now well-known. The "registration" provisions require convicted sex offenders to register with law enforcement authorities after parole or release. The "public notification" provisions permit law enforcement authorities, in certain circumstances, to notify the public of the identity and whereabouts of registrants.

 I hold that the public notification provisions of the Act constitute punishment and that they increase punishment after the fact. Hence, their retroactive application would violate the Ex Post Facto Clause.

 The public notification provisions are quintessentially punitive in nature, for several reasons. First, although the legislature's stated intent in passing the Act was to protect, it is clear that the legislature also intended to punish sex offenders. In approving the Act, members of the New York State legislature referred to sex offenders as "depraved," "the lowest of the low," "animals," and "the human equivalent of toxic waste." (New York State Assembly Debate Minutes, June 28, 1995, at 360-61, 393, 417) ("Assembly Minutes"). One member flatly stated: "We are coming out to get them." (Id. at 360).

 Second, the design of the Act suggests that the public notification provisions are punitive in nature. The Act contains classic indicia of a punitive scheme: it is triggered by the commission of a crime; it provides for the sentencing judge to determine the level of notification; and it provides for the submission of victim impact statements. Moreover, the Act is excessive in its sweep, covering an overly broad group of offenses and individuals and permitting broad and virtually uncontrolled disclosure.

 Third, history suggests that public notification is punitive in nature. Historically, branding and other public forms of shaming were used to punish wrongdoers and in egregious situations banishment was imposed. Public notification is the modern-day equivalent of branding and banishment. Moreover, banishment is precisely what at least some members of the New York legislature intended: one Assemblyman predicted, in stating his support for the Act, that it would force sex offenders "out of town, out of state." (Assembly Minutes at 388-89).

 Finally, the effect of the Act is to punish. Public notification results in an affirmative disability or restraint on sex offenders and their families. It interferes with the ability of sex offenders to rehabilitate in such a way as to extend their sentence, thereby increasing their punishment. Notification also serves traditional goals of punishment: retribution, incapacitation, and deterrence.

 Defendants (and others) argue that to the extent sex offenders suffer adverse consequences as a result of the Act's public notification provisions, they have only themselves to blame. That may be true, but this reasoning only underscores the punitive underpinning of the Act: because of their crimes, sex offenders deserve whatever they get.

 Likewise, the Act is premised on the generalization that sex offenders will repeat their crimes. As one member of the New York State Assembly proclaimed: "once a pedophile, always a pedophile." (Assembly Minutes, at 383). A society, or a legislature, may have a right to make that generalization as a matter of social policy, but a statutory scheme built upon a presumption that an entire group of individuals is incapable of rehabilitation is fundamentally punitive in nature.

 The vision of a seven-year old child being raped and murdered by a twice-convicted sex offender who lived across the street, unbeknownst to the child's family, is a haunting one. With that vision in mind, one could justify, on an emotional level, virtually any punishment and virtually any punishment could be characterized as a mere protective or regulatory measure. Indeed, any balancing of the rights of children and others to be free from rape, murder, and sexual abuse against the rights of those convicted of committing those crimes will always result in a decisive tipping of the scales of justice in favor of the former.

 Our Constitution, however, does not call for such a balancing in these circumstances. To the contrary, the Ex Post Facto Clause forbids all laws that increase punishment after the fact; there is no exception for laws that are based on good intentions or that seek to protect our children. If a law increases punishment, it cannot be applied retroactively even if it would also prevent further acts of violence and abuse.

 The registration provisions of the Act, however, do not constitute punishment, for they do not result in the same excesses or adverse consequences that follow public notification. Hence, their retroactive application would not violate the Ex Post Facto Clause.

 Accordingly, summary judgment is granted in favor of plaintiffs with respect to the notification provisions of the Act and in favor of defendants with respect to the registration provisions of the Act.

 STATEMENT OF THE CASE

 A. The Act

 1. Background

 The Act was passed on July 25, 1995 and took effect on January 21, 1996. Its preamble contains the following statement of the legislature's findings and intent:

 
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 goes on to state 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 . . . ." *fn1"

 All 50 states have enacted sex offender registration laws, many of which also provide for public notification. See People v. Ross, 169 Misc. 2d 308, 646 N.Y.S.2d 249, 250 n.1 (N.Y. Sup. Ct. N.Y. Co. 1996) (citing statutes). 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.

 Defendants have submitted statistics showing that approximately 133,000 women and girls age 12 and older are victims of rape or attempted rape in the United States each year. (Def. Mem. at 2-3). Justice Department statistics for 1992 show that nationwide 17,000 girls under age 12 were raped. (Id. at 3). Defendants cite studies that delineate the devastating psychological impact that sex offenses have on their victims. (Id. at 3-4). Defendants' statistics also show high rates of "recidivism among sex offenders, particularly among those who prey upon children" and that "sex offenders are significantly more likely than other repeat offenders to reoffend with sex offenses or other violent crimes." (Id. at 4). As compared to other criminals, defendants contend, sex offenders have a higher propensity "to go for long periods of time between offenses (thereby giving the false impression of having been successfully rehabilitated)." (Id. at 4-5). Plaintiffs have not challenged these statistics and the propositions they support, and thus I accept them as true for purposes of these cross-motions.

 2. Registration

 Under the Act, a "sex offender" is any person convicted of a "sex offense" or a "sexually violent offense." § 168-a(1), (2), (3). These designations encompass 36 offenses, including attempts. Seven of the designated offenses are misdemeanors. (Stip. P 16). *fn2"

 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. (See Stip. P 17).

 The failure to register as required by the Act is a crime. § 168-t. Since the Act took effect, at least six prosecutions have been brought in New York State against individuals who allegedly failed to register. (Stip. P 45). 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 based on the risk of a "re-offense" and the danger to the public. § 168-l(6). Based on an offender's risk level, notification is made either to law enforcement agencies only or 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.

 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). If the risk of a repeat offense is "moderate," the offender is assigned risk level two and the police may disseminate to "any entity with vulnerable populations" an approximate address based on the sex offender's zip code, a photograph, and background information. If the risk of a repeat offense is "high," the offender is assigned risk level three and the police may disseminate the offender's "exact address." § 168-l(6)(c). Moreover, a level three offender is also to be included in a "subdirectory of sexually violent predators" that contains an exact address, other identifying information, and a photograph. The subdirectory, which will be available statewide, will have listings by county and zip code, with copies to be distributed annually to local police departments for public access. A written request will be required before access to the subdirectory is given. §§ 168-l(6)(c), 168-q.

 Classification of a sex offender at level one, two, or three is determined by consideration of approximately 15 statutory factors that are used to assess the likelihood that an offense will be repeated. (Stip. P 22, citing § 168-l). In addition, the Board of Examiners of Sex Offenders is required to "develop guidelines and procedures to assess the risk of a repeat offense" and the "threat posed to public safety." (Stip. P 28, citing § 168-l(5)).

 Finally, identifying information about all registrants -- whether level one, two, or three -- also will be available to the public through a special "900" telephone number, which was scheduled to become operational on March 8, 1996. Callers to the 900 number will not be able to obtain information about any person unless they first provide some identifying information that reasonably identifies the person in question as a registrant. Moreover, the telephone calls will be recorded and callers will be required to identify themselves. § 168-p. The unauthorized release of any information is a crime. § 168-u. The registry may be made available "to any regional or national registry of sex offenders for the purpose of sharing information." § 168-b(2).

 B. The Facts

 1. Plaintiffs

 Plaintiff John Doe was convicted of attempted rape in the first degree in New York in 1990 and was sentenced to a period of incarceration. He was released on parole in 1994 and has remained on parole since then without incident. (Stip. P 6). On February 5, 1996, while on parole, Doe received notification that he had been classified as a level three sex offender and that he was thus "subject to lifetime registration and . . . must register quarterly." (Stip. P 39). He was advised that he could petition the sentencing court to be relieved from registering, but not for "at least 10 years." (Id.).

 Plaintiff Richard Roe was convicted of sexual abuse in the first degree in New York in 1995. He was sentenced to probation and has remained on probation without incident since then. (Stip. P 7). Roe was also assigned risk level three. (Stip. P 42).

 Plaintiff Samuel Poe was convicted of attempted sodomy in the first degree in New York in 1989 and was sentenced to a period of incarceration. He presently is entitled to immediate conditional release from prison and will be paroled when the Division of Parole approves his residence. In accordance with the Act, he will be required to appear before the state court for classification prior to release on parole. (Stip. P 8).

 Plaintiffs sue on behalf of themselves as well as all others similarly situated -- all persons who currently are (or in the future will be) incarcerated in a New York State prison or jail or on parole or probation after having been convicted of a "sex offense" or "sexually violent offense" as defined in the Act, committed prior to the effective date of the Act, January 21, 1996, and who have been or will be subject to the Act's registration and notification provisions. (Cmplt. P 35). I have not certified a class because defendants have agreed to be bound by any rulings in this case and to apply them to plaintiffs and all similarly situated sex offenders. (Stip. P 4).

 2. Defendants

 Named as defendants in this lawsuit, in their official capacities, are Governor Pataki; Paul Shechtman, the Commissioner of DCJS; Brion Travis, Chairman of the Board of Parole of the New York State Division of Parole Services; George Sanchez, Director of the New York State Division of Probation; and Elizabeth M. Devane, Chairperson of the New York State Board of Examiners of Sex Offenders; and the New York State Board of Examiners of Sex Offenders. Defendants are the individuals responsible for the implementation of the Act and the agencies involved in its operation. (See generally Stip. PP 9-13, 27-29).

 3. Application of Sex Offender Laws

 In support of their prior motion for a preliminary injunction, plaintiffs submitted bits of anecdotal evidence detailing some of the effects that the Act and similar sex offender laws had on registrants. The parties have now significantly enhanced the record, and I have been provided with details, by stipulation and otherwise, of the results of application of the Act in New York and application of similar sex offender laws in New Jersey and other states. These facts are undisputed and may be summarized as follows:

 a. New York

 Prior to the entry of the Court's temporary restraining order and preliminary injunction in this case, three convicted sex offenders in New York had been subjected to the Act's public notification provisions. (Stip. P 46). The parties have stipulated as to the facts of those incidents as follows:

 On February 26, 1996, the superintendent of the Cornwall Central School District Community distributed a written notice that she had been advised of the release of an unnamed sex offender into that community from prison. After local newspapers published several articles about the release of a "sexually violent predator" into the community, police identified the individual as Mark Iannolo and released his exact street address and a photograph. Although his crime had been against an adult woman, Iannolo was branded in the community as a child molester. (Stip. P 48).

 On March 5, 1996, the superintendent of an upstate New York school district sent a mass mailing to all residents of the district after being informed by police that a sex offender had moved into the community following his release from prison. The letter identified the individual by name and specific street address. After the mailing, the individual was fired from his job, members of his family were harassed, his brother received "ominous, anonymous" telephone calls, and an attempt was made to break into his home. (Stip. P 49).

 b. New Jersey

 The parties also stipulated as to the facts of the following incidents in New Jersey:

 Carlos Diaz, a convicted sex offender, was literally driven out of town after a crowd of news vans, reporters, and members of the Guardian Angels set up a round-the-clock stakeout outside his mother's apartment, where he had been living. The Guardian Angels posted "wanted" posters for Diaz throughout the neighborhood and made public threats against Diaz and his family. Local politicians and community leaders also made statements condemning him and objecting to the presence of his family in the community. Eventually, after effectively having been held prisoner in her own apartment for a week, Diaz's mother fled the home as well. (Stip. P 55).

 Another individual, who had been convicted in 1986 of a sex offense involving his 16-year old stepdaughter, was released from prison in 1995. Shortly thereafter, the local police circulated his name and photograph in the community with a statement that he posed a danger to children. After his neighbors started calling him a "child molester," his landlord locked him out of his apartment. He was physically attacked three times. (Stip. P 57).

 Other New Jersey sex offenders subjected to community notification suffered similar consequences: the loss of employment; threats of violence; property damage; being forced from their homes; and other public harassment. (Stip. PP 58, 61, 62, 63, 64). In addition, the mother-in-law of a convicted sex offender was intimidated on two occasions by strangers who attempted to force their way into her home while demanding information about the whereabouts of the sex offender and his family. (Stip. P 59).

 Finally, in perhaps the most bizarre incident in New Jersey, two men broke into a house that police had identified as the home of a convicted sex offender. They attacked the wrong man -- a visitor who was spending the night in the house. He suffered serious injuries to his shoulder, neck, and back, and because of the resulting publicity and mistaken impression that he was a sex offender, he lost his business. Moreover, his children and fiancee were ridiculed and harassed. (Stip. P 56).

 The United States, as amicus curiae, has submitted evidence of instances in which community notification in New Jersey might have prevented released sex offenders from repeating their crimes. (Alter Aff., Exh. F). In one incident, a teacher's aide who had learned about the presence in the community of a released convicted sex offender called the police to report that the individual had been in contact with a child. After investigating, the police learned that the individual had attended a child's birthday party and had invited a nine-year old to his home for ice cream. These activities violated the individual's conditions of parole and his parole was revoked as a result. (Alter Aff., Exh. F at P 4).

 There were at least two other incidents in which released convicted sex offenders violated the terms of their parole by being in the company of children. These violations were brought to the attention of the authorities as a result of community notification. (Alter Aff., Exh. F at PP 5, 7).

 c. Washington

 The parties also stipulated as to a series of events in the State of Washington:

 In 1993, soon after police disclosed that Joseph Gallardo, who had been convicted of raping a 10-year old girl, was about to be released from prison, his home was burned to the ground by an arsonist. He relocated to New Mexico, but after Washington police notified his new community of his presence, he was forced to move again. (Stip. P 50).

 Another Washington sex offender was evicted from the trailer park where he resided after he had become the object of a campaign of harassment and intimidation. He thereafter was forced to leave a second community after citizens there posted fliers with his photograph. He lost three jobs before he was forced to leave Washington State. (Stip. P 51).

 The adoptive family of a 12-year old who had been classified as a "sexual predator" was evicted from its home after the child was released from a juvenile facility. (Stip. P 51). Two other sex offenders were forced to relocate by residents of Tacoma, Washington. (Stip. P 52). A Washington gas station that employed a sex offender became the target of a boycott by persons who urged customers to stay away because a "sex offender works here." (Stip. P 54).

 Finally, in another incident, after police notification of a sex offender's presence in a community, private citizens circulated posters bearing the individual's picture. The police characterized the posters as having a "vigilante edge." The individual was thereafter attacked by a stranger who knocked on his door, called him a "pervert," and punched him in the mouth. (Stip. P 53).

 In addition to the facts set forth in the Stipulation, the United States submitted a report, published in December 1993, on Washington's Community Notification Law. (Alter Aff., Exh. A) (the "Washington Report"). The Washington State Institute for Public Policy surveyed sheriffs in all 39 of Washington's counties as well as the chiefs of police of Washington's ten largest cities in March 1993. Some 88 percent responded. The Washington Report shows that in the first three years of the law, 14 acts of harassment had been directed at released sex offenders (and in half of those incidents, at their families or friends as well) following notification. (pp. ii, 7).

 d. California

 California has been operating a 900 telephone service that provides information about its registered sex offenders since January 1995. (Stip. PP 65, 66). There are approximately 46,000 sex offenders registered under the California Child Protective Act of 1994 as individuals who may victimize children. (Stip. PP 66, 68). Certain precautions have been implemented in an effort to prevent abuse of any information provided through the 900 number. (Stip. PP 69-72). California also maintains a publicly available subdirectory of some 900 high risk sex offenders. (Stip. P 80-81). Fewer than ten complaints have been received about California's program, and most have been from registrants. (Stip. P 84). The California Department of Justice has not received any reports from law enforcement indicating that the disclosure of any information about a sex offender has been followed by acts of harassment or discrimination or the commission of a crime against the registrant. (Stip. P 86).

 e. Oregon

 Although the parties did not stipulate as to any facts concerning application of a sex offender law in Oregon, the United States submitted a report, published by the Oregon Department of Corrections in January 1995, on "Sex Offender Community Notification in Oregon." (Alter Aff., Exh. B) (the "Oregon Report"). The Oregon Report concludes:

 (p. 5). The Oregon Report recommends that "Community Notification should continue . . . ." (p. 6).

 The Oregon Report notes that less than 10% of the offenders were reported to have experienced "some form of harassment," which included "name calling, graffiti, toilet papering and minor property vandalism, monitoring of a home by a video camera, repeated reports of unfounded violations to parole/probation officers, and picketing of residences." (p. 12). Two "extreme" cases were reported: one sex offender had a gun pointed at him and another was falsely accused of slashing someone's tires and was threatened with having his house burned down. (Id.). One sex offender committed suicide after he was informed that community notification would occur; although the Oregon Report states that "it is unclear whether notification caused his suicide," it also notes that the suicide occurred just ten days after notification. (p. 13).

 Finally, the Oregon Report noted other circumstances that apparently were not included in the harassment category noted above:

 
Community notification has made it more difficult to find residences for some sex offenders released from prison. Release plans have fallen apart just before release, leaving no time to develop appropriate alternate placements. Convicted sex offenders have been asked to move out by those they live with or have been evicted by landlords. Relatives are less willing to allow a convicted sex offender to reside with them once there is awareness that notification will occur. Some offenders, because of harassment, have chosen to move to new neighborhoods. Community transition programs, halfway houses, and other supervised placements, similarly have become more reluctant to take in sex offenders. Because these programs want to maintain a low ...

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