NOTE

Sex Offender Registration and Community Notification: Protection, Not Punishment

  Introduction

On July 30, 1994, in Hamilton Township, New Jersey, seven-year-old Megan Kanka was found raped and strangled to death.⁽¹⁾ The accused, Jesse Timmendequas, a neighbor who was living across the street, has since signed a statement admitting to the crime.⁽²⁾ After this crime was committed, Megan's parents and most of America learned that this neighbor had been twice convicted of sexually assaulting children.⁽³⁾ The citizens of New Jersey reacted by demanding that their legislature enact sex offender registration and community notification laws.⁽⁴⁾ These laws require a released sex offender to register with the local police and also allow the government to notify the community where the offender is going to live.⁽⁵⁾ When this crime occurred, a majority of states had already enacted registration laws and several had enacted community notification laws.⁽⁶⁾ On October 31, 1994, just three months after the body of Megan Kanka was found, the governor of New Jersey, Christine Todd Whitman, signed one of the most comprehensive and stringent sex offender bills into law.⁽⁷⁾

Due to prison over-crowding⁽⁸⁾ and the lack of effective treatments,⁽⁹⁾ many sex offenders are released back into society with the same problems that had caused their imprisonment.⁽¹⁰⁾ Although there are discrepancies in the estimates of sex offender recidivism,⁽¹¹⁾ many authorities are convinced that treatment of sex offenders remains ineffective.⁽¹²⁾ Because the released sex offender remains a threat to society, many state legislatures have enacted measures which might otherwise be viewed as unconstitutionally intrusive.⁽¹³⁾

Apart from the constitutional challenges which will be discussed in this Note, these statutes are the subject of a variety of criticisms. Some critics believe that these laws create a false sense of security because not all sex offenders can be readily identified.⁽¹⁴⁾ Others are concerned that notifying the public where a released sex offender is going to live will incite widespread vigilantism.⁽¹⁵⁾ Some further believe that by isolating and ostracizing the released sex offender, these laws actually create the very problems they were designed to prevent.⁽¹⁶⁾ Still others contend that continued harassment from the public and the police does not allow released criminals a fair chance to start their lives again.⁽¹⁷⁾

Impingements on the rights of the repeat sex offender must be weighed against society's interest in assisting its police forces and protecting its children.⁽¹⁸⁾ In the view of some parents, the legal system is providing more protections to the sex offender than it provides to children.⁽¹⁹⁾ While the offender starts life over again, the victim and the victim's family must go on living with emotional and physical trauma that is the debris typical of such an offense.⁽²⁰⁾ The aftershock of these crimes continues as the victim's family members are left to wonder whether they could have prevented the crime from ever happening--if only they had been told who was living across the street.⁽²¹⁾ These are the concerns that persuade the public, the legislatures, and the courts to support this legislation.⁽²²⁾

As this Note will discuss, the constitutionality of these laws has been challenged in many ways, particularly under the Ex Post Facto Clause, the Due Process Clause, the Equal Protection Clause, the right to privacy, and under the Eighth Amendment, as a cruel and unusual punishment.⁽²³⁾ These laws have been upheld at the state level in nearly every instance,⁽²⁴⁾ but the Supreme Court of the United States has yet to hear a case challenging one of these laws.⁽²⁵⁾

Part II of this Note will examine the various types of registration and community notification laws already enacted,⁽²⁶⁾ centering on the notification provisions of New Jersey's Megan's Law,⁽²⁷⁾ as well as the sex offender provisions in the Federal Violent Crime Control and Law Enforcement Act of 1994.⁽²⁸⁾ Part III will review the challenges these laws have previously faced at the state level. Part IV will conclude that these provisions are constitutional when the structure of the statute relates the use of registration or notification to the potential for dangerousness of an offender.

  The Laws

A.  Registration Laws

Statutes requiring the registration of persons previously convicted of certain crimes have been used in this country.⁽²⁹⁾ Though there also are some current statutes which require registration for other types of offenders,⁽³⁰⁾ the focus of this Note will be registration and community notification statutes concerning sex offenders.

Sex offender registration statutes, which have been enacted in forty states,⁽³¹⁾ require the released sex offender to register with his or her local law enforcement agency.⁽³²⁾ The offender is generally required to provide his or her local police with personal information such as fingerprints, new address, a history of former crimes, and a photograph.⁽³³⁾ Most statutes also require that notice be given to the police when that offender intends to move.⁽³⁴⁾ A person is generally defined as a "sex offender" based upon conviction of certain past offenses.⁽³⁵⁾ Some states have enacted provisions which apply only to sex offenders who have been convicted of crimes which involved children.⁽³⁶⁾

The duration of the duty to register also varies among the statutes.⁽³⁷⁾ Many states simply assign a lifetime duty to register.⁽³⁸⁾ In other states, the offender only has to remain registered for a specific period of time--such as ten or fifteen years.⁽³⁹⁾ For some states, the more severe the crime, the longer the period during which the offender must register.⁽⁴⁰⁾ States provide different penalties for failure to register, but under the typical statute, failure to register is a misdemeanor offense.⁽⁴¹⁾ After the sex offender has complied with the registration procedure for a certain amount of time, some states permit the released offender to petition to be relieved of the duty to register.⁽⁴²⁾

As noted, the registration requirement for sex offenders has been readily adopted by most states.⁽⁴³⁾ Registration does serve an important purpose: to assist police in rapidly locating known sex offenders after a new crime has occurred.⁽⁴⁴⁾ However, the public is naturally more concerned with preventing these crimes than in merely assisting in the apprehension of the offender.⁽⁴⁵⁾ In some instances, such as the Megan Kanka case in New Jersey,⁽⁴⁶⁾ community notification would have given parents an opportunity to warn their children about potentially dangerous persons living in the neighborhood.⁽⁴⁷⁾

B.  Notification Laws

Though the basic goals of the various community notification statutes are similar--to protect the public--the specific provisions of each statute are quite varied.⁽⁴⁸⁾

1.  Megan's Law Notification Provisions

Under Megan's Law, the criminal and behavioral history of the released sex offender is reviewed in order to assess the risk of re-offense.⁽⁴⁹⁾ Although the statute provides for local prosecutors to perform this risk assessment, the recent case of Doe v. Poritz,⁽⁵⁰⁾ held that this risk assessment would be subject to judicial review, prior to the use of notification.⁽⁵¹⁾ Factors deemed relevant in determining the risk of re-offense include: (1) conditions of release such as parole, probation, counseling, therapy or treatment, (2) physical conditions such as advanced age or debilitating illness, (3) criminal history factors (4) psychological profiles (5) the offender's response to treatment, (6) recent behavior, and (7) recent threats against persons or expressions of intent to commit additional crimes.⁽⁵²⁾ The statute further directs the Attorney General to provide guidelines for three tiers of notification to correspond with the risk of re-offense presented by that offender.⁽⁵³⁾ Generally, the statute mandates that the greater the risk of re-offense, the greater the use of notification.⁽⁵⁴⁾

Built into the Megan's Law three-tiered notification provision, is a presumption that all released sex offenders pose at least some risk of re-offense.⁽⁵⁵⁾ Thus, while the degree of notification used is calibrated to the risk of re-offense, some amount of notification is used for every offender.⁽⁵⁶⁾ Notification in New Jersey can be viewed as mandatory because "all registrants will be subjected at the very least to Tier One Notification (called `Law Enforcement Alert' in the Guidelines)."⁽⁵⁷⁾

Megan's Law, like most other community notification statutes, provides immunity to authorities for any injury or harm that may result from their decisions.⁽⁵⁸⁾

2.  Other Notification Laws

Most other community notification laws grant local police forces broad discretion in determining which sex offenders are so dangerous that they present a public safety problem requiring notification.⁽⁵⁹⁾ For instance, in Louisiana and Washington, the local law enforcement authorities are permitted to notify the public when the information may be "necessary for public protection."⁽⁶⁰⁾ In Washington, though the local law enforcement agency has some discretion, "the statute requires [the] agency to have some evidence that the offender poses a threat to the public or, in other words, some evidence of dangerousness in the future."⁽⁶¹⁾ Some courts may be concerned if this broad discretion is not sufficiently structured to guarantee a relationship between risk of re-offense and the use of notification.⁽⁶²⁾ In contrast to these broadly-drawn statutes, the highly-structured Megan's Law is designed to limit the negative impact notification may have on the offender, while still providing society with the information it may need to protect itself.⁽⁶³⁾

C.  The Crime Control Act of 1994⁽⁶⁴⁾

States which fail to enact sex offender provisions similar to those in the Crime Control Act will be ineligible for substantial amounts of federal funding to assist in law enforcement.⁽⁶⁵⁾ The Crime Control Act contains provisions which are similar to those found in the State of Washington's registration and community notification statute.⁽⁶⁶⁾

Provisions contained in the Crime Control Act state that a person convicted of either a criminal offense against a child or a sexually violent offense will be required to register with local law enforcement for ten years.⁽⁶⁷⁾ If the person has committed a sexually violent offense and also suffers from a mental abnormality that makes the person likely to engage in predatory sexually violent offenses, he or she must register until he or she no longer suffers from the abnormality.⁽⁶⁸⁾ The information required for registration is much the same as that already required by most states.⁽⁶⁹⁾

The Crime Control Act also contains provisions for community notification.⁽⁷⁰⁾ Under these provisions, the information may be released by the local law enforcement agency as "is necessary to protect the public concerning a specific person."⁽⁷¹⁾ Additionally, there is immunity from liability for the law enforcement agencies and the employees of law enforcement agencies.⁽⁷²⁾

States must enact registration and community notification provisions by September 13, 1997, in order to continue to receive the full amount of federal funding for law enforcement.⁽⁷³⁾

  Constitutional Challenges

In some of the cases that follow, the sex offender registration or community notification statutes were challenged on multiple constitutional grounds.⁽⁷⁴⁾ Those challenges which received the most thorough examination by the reviewing court are treated most extensively in this Note.⁽⁷⁵⁾

A.  Ex Post Facto Clause

The Constitution of the United States provides that neither the federal government nor any state shall make an ex post facto law.⁽⁷⁶⁾ Generally, to determine whether a law is an ex post facto law, a two-part analysis is used.⁽⁷⁷⁾ First, a court must determine whether the law is being applied retrospectively; that is, whether the law affects acts which occurred prior to the law's enactment.⁽⁷⁸⁾ Second, the court must determine whether the law is a punishment or a regulation.⁽⁷⁹⁾ The Ex Post Facto Clause only prohibits punishments that are applied retrospectively.⁽⁸⁰⁾ A finding that the statute violates the Ex Post Facto Clause does not render the statute unconstitutional for all purposes; it only finds that the statute may not be applied retrospectively.⁽⁸¹⁾

In Calder v. Bull,⁽⁸²⁾ the Supreme Court asserted that the purpose of the Ex Post Facto Clause was "to protect . . . person[s] from punishment by legislative acts, having a retrospective operation."⁽⁸³⁾ However, all laws that operate retrospectively are not necessarily ex post facto laws.⁽⁸⁴⁾ Only a retrospectively applied law which "aggravates a crime, or makes it greater than it was, when committed" or which "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" is an ex post facto law.⁽⁸⁵⁾ These factors have been further simplified by the Court: "[T]he constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them."⁽⁸⁶⁾

The Supreme Court, in Trop v. Dulles,⁽⁸⁷⁾ held that each time a provision is challenged as a violation of the Ex Post Facto Clause, "it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties."⁽⁸⁸⁾ A statute is considered nonpenal--or regulatory--if it has a "legitimate governmental purpose."⁽⁸⁹⁾ The Court noted that some laws will certainly have both a "penal and a nonpenal effect."⁽⁹⁰⁾

When a law has both regulatory and punitive qualities, courts will look to the legislative purpose to determine whether the law is punitive.⁽⁹¹⁾ If legislative purpose is unclear, some courts will analyze the following factors, taken from the Kennedy v. Mendoza-Martinez⁽⁹²⁾ case to determine if the provision is punitive or regulatory:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment . . . [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, [7] and whether it appears excessive in relation to the alternative purpose assigned . . . .⁽⁹³⁾

Nearly every state court that has heard an ex post facto challenge to a registration or notification law has applied all or several of the Mendoza-Martinez factors to determine whether the statute is regulatory or punitive.⁽⁹⁴⁾

The New Jersey Supreme Court in Doe v. Poritz held that the United States Supreme Court had rejected the use of the Mendoza-Martinez factors in ex post facto cases⁽⁹⁵⁾ in which the question is whether punishment is being imposed.⁽⁹⁶⁾ The Poritz court argued that the Mendoza-Martinez factors are more properly applied when the question is whether a proceeding should be characterized as civil or criminal, not whether the sanction involved is remedial or punitive.⁽⁹⁷⁾

The test used by the New Jersey Supreme Court in Poritz to determine whether a statute represents punishment was drawn from several United States Supreme Court cases⁽⁹⁸⁾ and emphasizes the legislative goals of a statute rather than incidental punitive effects. The test applied in Poritz is most clearly stated as follows: "What counts . . . is the purpose and design of the statutory provision, its remedial goal and purposes, and not the resulting consequential impact, the `sting of punishment,' that may inevitably, but incidentally, flow from it."⁽⁹⁹⁾ Under this test, if a statute is designed to be regulatory or remedial and operates primarily in that manner, it does not become a punishment simply because there are some punitive results.⁽¹⁰⁰⁾

Under either punishment test--the Mendoza-Martinez factors or the test used by the New Jersey Supreme Court in Poritz--if registration or notification is applied retrospectively and is also found to be a punishment, it is violative of the Ex Post Facto Clause.⁽¹⁰¹⁾ Registration is frequently applied retrospectively, but it has been upheld against ex post facto challenges in nearly every instance because most courts view registration as a regulation, not a punishment.⁽¹⁰²⁾ Notification has faced limited challenges and the results have varied.⁽¹⁰³⁾

In Poritz, the New Jersey Supreme Court held that the overwhelming purpose of the registration and notification laws was remedial, not punitive.⁽¹⁰⁴⁾ The laws were being applied retrospectively; thus, the court had only to answer whether or not the laws represented a punishment.⁽¹⁰⁵⁾ The Poritz court used the United States v. Halper⁽¹⁰⁶⁾ test which stresses legislative purpose rather than incidental punitive effects.⁽¹⁰⁷⁾ For the Poritz court, the three-tiered notification provision, in particular, demonstrated that the legislature was primarily concerned with the protection of the public (a remedial goal), rather than with punishing the offender.⁽¹⁰⁸⁾ According to the court, "[t]he notification provisions are as carefully tailored as one could expect in order to perform their remedial function without excessively intruding on the anonymity of the offender."⁽¹⁰⁹⁾

Ex post facto challenges in other states have primarily involved only the registration laws.⁽¹¹⁰⁾ In State v. Ward,⁽¹¹¹⁾ the Supreme Court of Washington held that sex offender registration did not violate the Ex Post Facto Clause.⁽¹¹²⁾ The Ward court began its analysis by acknowledging that the law had been applied retrospectively.⁽¹¹³⁾ To determine whether the registration requirement was punitive or regulatory, the court first analyzed legislative intent.⁽¹¹⁴⁾ Although legislative intent revealed a regulatory purpose,⁽¹¹⁵⁾ the court also looked to some of the factors stated in Mendoza-Martinez.⁽¹¹⁶⁾

In applying the Mendoza-Martinez factors,⁽¹¹⁷⁾ the Ward court addressed several specific arguments of the appellants.⁽¹¹⁸⁾ The first question was whether the sanction involved an affirmative disability or restraint.⁽¹¹⁹⁾ The court held that registration alone "imposes no significant additional burdens on offenders."⁽¹²⁰⁾ While analyzing the first Mendoza-Martinez factor, the Ward court discussed, though only in dicta, the validity of community notification.⁽¹²¹⁾ The appellants contended that community notification "creates hostile publicity and, ultimately, has a punitive effect on registrants."⁽¹²²⁾ The court felt that the limited use of community notification "[did] not impose additional punishments on registrants."⁽¹²³⁾ The court believed that the use of community notification was limited because the statute required the disclosing "agency to have some evidence that the offender poses a threat to the" community, before releasing the information to the public.⁽¹²⁴⁾ The statute's focus on the potential for future danger permitted the Ward court to view community notification as regulatory rather than punitive.⁽¹²⁵⁾ Other Mendoza-Martinez factors applied by the Ward court also revealed a regulatory purpose.⁽¹²⁶⁾ The Ward court concluded that both the legislative intent and application of the Mendoza-Martinez factors⁽¹²⁷⁾ supported the State's contention that the registration statute was regulatory rather than punitive; therefore, the statute did not violate the Ex Post Facto Clause.⁽¹²⁸⁾

Several other states have also held that sex offender registration may be applied retrospectively without violating the Ex Post Facto Clause.⁽¹²⁹⁾ In State v. Noble,⁽¹³⁰⁾ the Arizona Supreme Court qualified this holding by stating that registration is not punishment because the information is not disseminated to the general public.⁽¹³¹⁾ This analysis may indicate that the Arizona Supreme Court is not prepared to uphold a community notification statute if enacted.⁽¹³²⁾ The New Hampshire Supreme Court also held that retroactive application of its registration law does not violate the Ex Post Facto Clause.⁽¹³³⁾ The New Hampshire court held that "the nonpenal, or regulatory, purpose of the legislature in enacting the sex offender registration law is manifest."⁽¹³⁴⁾

In Louisiana, which has several registration statutes, the Louisiana Court of Appeal has had disparate holdings.⁽¹³⁵⁾ In State v. Payne,⁽¹³⁶⁾ the state of Louisiana argued that registration was a probation provision which was not imposed as a penalty, but merely as a special condition which was reasonably related to the defendant's rehabilitation.⁽¹³⁷⁾ In Payne, the Louisiana Court of Appeal did not apply the Mendoza-Martinez factors to determine whether registration was a penalty, but simply held that it was a penalty because the offender was subject to fines or imprisonment if he failed to register.⁽¹³⁸⁾ The court concluded that registration "inflict[s] a greater penalty than that authorized for the crime at the time of its commission."⁽¹³⁹⁾ After deciding that registration was unconstitutional as applied to this defendant, the Court of Appeal found it unnecessary to determine whether the requirement of registration for sex offenders was unconstitutional on its face.⁽¹⁴⁰⁾ Since the Payne decision, the Louisiana Court of Appeal has held that registration may indeed be applied retrospectively.⁽¹⁴¹⁾ This court found that registration was merely an additional condition for release and not a separate punishment in itself.⁽¹⁴²⁾

B.  Equal Protection Clause

The United States Constitution guarantees that similarly situated people will receive similar treatment.⁽¹⁴³⁾ However, when individuals have relevant distinguishing characteristics, the government may treat them differently and courts will grant broad discretion to their legislative decisions.⁽¹⁴⁴⁾ "In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end."⁽¹⁴⁵⁾

Sex offender registration and community notification laws have been challenged on equal protection grounds when an offender contends that he or she should not be included in the same class as all other offenders.⁽¹⁴⁶⁾ These laws have also been challenged on equal protection grounds because they rarely apply to all sex offenders.⁽¹⁴⁷⁾ Often, these statutes apply only to offenders convicted of sex crimes which involve some type of violence or crimes involving child victims.⁽¹⁴⁸⁾ When these laws apply to only certain sex offenders, but not to all, some contend that the Equal Protection Clause has been violated.⁽¹⁴⁹⁾

The plaintiff in Poritz argued that he should not be classified with other sex offenders because he, unlike most of the others, had successfully completed a treatment program.⁽¹⁵⁰⁾ He further contended that the Equal Protection Clause required that he be viewed by the law as an individual and not as part of the larger class of sex offenders.⁽¹⁵¹⁾ The Poritz court held that the plaintiff had "mischaracterize[d] the Equal Protection Clause."⁽¹⁵²⁾ The New Jersey Supreme Court stated that, "[e]qual protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary."⁽¹⁵³⁾ That court had previously held that creating a classification for repeat sex offenders was not arbitrary.⁽¹⁵⁴⁾ The Poritz court held that the notification and registration provisions were rationally related to the plaintiff's inclusion in that class.⁽¹⁵⁵⁾

The defendants in State v. Ward⁽¹⁵⁶⁾ argued that the law violated the Equal Protection Clause because some sex offenders were exempted from the registration requirement.⁽¹⁵⁷⁾ The Supreme Court of Washington summarized its equal protection analysis as follows:

Traditionally we have used one of two tests to analyze an equal protection claim. Under the rational relationship test, the law being challenged must rest upon a legitimate state objective, and the law must not be wholly irrelevant to achieving that objective. The other test is strict scrutiny, under which the State's purpose must be compelling and the law must be necessary to accomplish that purpose. Strict scrutiny applies "if an allegedly discriminatory statutory classification affects a suspect class or a fundamental right."⁽¹⁵⁸⁾

The defendant in Ward contended that one of his fundamental rights had been violated because the registration requirement "results in a significant impairment of a registrant's right to earn a livelihood and to own land and shelter."⁽¹⁵⁹⁾ The court held that sex offenders do not constitute a suspect class and that liberty interests alone are not enough to require strict scrutiny.⁽¹⁶⁰⁾ Because the defendant's claims did not trigger strict scrutiny, the Ward court applied a rational relationship test to uphold the statute.⁽¹⁶¹⁾ The court held that the requirement that only some sex offenders register was rationally related to the state's legitimate safety and police interests.⁽¹⁶²⁾

C.  Due Process Clause

The Constitution requires that a person shall not be deprived of life, liberty, or property without due process of law.⁽¹⁶³⁾ The United States Supreme Court has found a nexus between governmental damages to a person's reputation and the due process clause.⁽¹⁶⁴⁾ "[A] protectible liberty interest is implicated `[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him.'"⁽¹⁶⁵⁾ However, in Paul v. Davis,⁽¹⁶⁶⁾ the Supreme Court held that damage to reputation alone is not enough to implicate a liberty interest for due process purposes.⁽¹⁶⁷⁾ There must be damage to reputation, in addition to damage to some other interest previously recognized under state law.⁽¹⁶⁸⁾ Once a liberty interest is found to be implicated, the court must determine which procedural protections are required by the Due Process Clause.⁽¹⁶⁹⁾

In Poritz, the New Jersey Supreme Court conceded that the use of the second or third tiers of notification would damage the plaintiff's reputation.⁽¹⁷⁰⁾ The court found that the damage to reputation coupled with the invasion of his right to privacy which accompanies these degrees of notification, would implicate a protectible liberty interest.⁽¹⁷¹⁾ To determine which procedural protections the Due Process Clause required, the court weighed the following 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 . . . of additional or substitute safeguards [sic]; 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.⁽¹⁷²⁾

In weighing the factors, the Poritz court found that the privacy interest involved was significant and that additional safeguards--in the form of judicial review of risk assessment and manner of notification--would ensure that deprivations of those interests would occur only when necessary to protect the public.⁽¹⁷³⁾ The court also found that the state's interest in protecting its citizens would not be seriously burdened by such a hearing.⁽¹⁷⁴⁾

Due process challenges to sex offender registration and community notification laws have also arisen when defendants had plead guilty without being aware of the registration requirement⁽¹⁷⁵⁾ or when the defendant had contended that the registration requirement was not rationally related to any legitimate state interest.⁽¹⁷⁶⁾

The United States Supreme Court has held that a guilty plea, to be valid, must be made intelligently and voluntarily.⁽¹⁷⁷⁾ In Ward, the defendant Doe asserted that the registration requirement denied him his right to procedural due process.⁽¹⁷⁸⁾ The defendant had plead guilty to first degree rape in 1980, but the registration law in Washington was not enacted until 1990.⁽¹⁷⁹⁾ Therefore, when he made his guilty plea he was not aware he would be required to register.⁽¹⁸⁰⁾ He argued that this lack of notice violated his right to due process.⁽¹⁸¹⁾ The State of Washington had previously held that a criminal defendant "must be informed of all the direct consequences of his plea prior to acceptance of a guilty plea."⁽¹⁸²⁾ However, the court noted, a "defendant need not be advised of all possible collateral consequences of his plea."⁽¹⁸³⁾ Whether or not the consequence of the plea is direct or collateral depends "on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment."⁽¹⁸⁴⁾ Following its earlier treatment of the Ex Post Facto Clause,⁽¹⁸⁵⁾ the court again stated that registration was not a punishment and thus concluded that the registration requirement was merely a collateral consequence of the defendant's guilty plea.⁽¹⁸⁶⁾ Since the requirement to register was only a collateral consequence, there existed no duty to inform prior to pleading.⁽¹⁸⁷⁾

In People v. Adams,⁽¹⁸⁸⁾ an Illinois Supreme Court case, the defendant claimed that his right to due process had been violated because the registration requirement was arbitrary and did not bear a reasonable relationship to a public interest.⁽¹⁸⁹⁾ Under Illinois due process analysis, "[w]hen a statute bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective, it will be upheld."⁽¹⁹⁰⁾ The defendant contended that the registration requirement was not rationally related to any legitimate state objective.⁽¹⁹¹⁾ The Adams court found "nothing unreasonable in the statute's method of serving its purpose."⁽¹⁹²⁾ It concluded that "[t]here is a direct relationship between the disability, the registration of child sex offenders, and the purpose served by the statute, the protection of children."⁽¹⁹³⁾

Because courts have found registration to be related to a public purpose, the due process challenges have received much the same analysis as the equal protection cases.⁽¹⁹⁴⁾ Since the law must only be rationally related to a state objective,⁽¹⁹⁵⁾ this low standard will likely allow registration statutes to continue to withstand due process challenges.

D.  Right to Privacy

Though not explicitly contained in the Constitution of the United States, the Supreme Court has read a right to privacy into the Due Process Clause of the Fifth and Fourteenth Amendments.⁽¹⁹⁶⁾ This is not an absolute right, however, and it may be impinged upon in some circumstances.⁽¹⁹⁷⁾ In Whalen v. Rose,⁽¹⁹⁸⁾ the Supreme Court identified two kinds of privacy interests which may be protected.⁽¹⁹⁹⁾ "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions."⁽²⁰⁰⁾

In Poritz, the New Jersey Supreme Court used a balancing test to determine if the plaintiff's right to privacy had been violated.⁽²⁰¹⁾ "If there is a reasonable expectation of privacy in the information disclosed, we must decide whether the intrusion on the right of privacy is justified, balancing the governmental interest in disclosure against the privacy interest in confidentiality."⁽²⁰²⁾ To determine whether there was an expectation of privacy, the Poritz court reviewed each piece of information required for registration.⁽²⁰³⁾ In New Jersey, the public was already permitted to review prior arrest and conviction records.⁽²⁰⁴⁾ The court found that disclosure of the offender's "age and legal residence or a description of his vehicle would not infringe on any expectation of privacy" because the records of the Department of Motor Vehicles are also public records.⁽²⁰⁵⁾ Finally, the court found that the offender had no reasonable expectation of privacy in matters already exposed to public view, such as physical appearance.⁽²⁰⁶⁾ Since the court found no expectation of privacy in the information disclosed under the registration requirements, it found no violation of the offender's right to privacy.⁽²⁰⁷⁾

The notification procedures, however, required a different analysis because of the "totality of the information disclosed to the public."⁽²⁰⁸⁾ Though the offender's address may be publicly available, there may be a privacy right implicated in notification when all of the other information disclosed--in addition to the address--is considered.⁽²⁰⁹⁾ The court dismissed the potential vigilantism which may result from notification, stating that, "we expect that the information disclosed will be used as intended: as a means of protection, not as a means of harassment."⁽²¹⁰⁾ The notification provision was nonetheless found to implicate a privacy interest held by the sex offender because of the ease with which the public was able to access this information.⁽²¹¹⁾u

Having found a privacy interest implicated in the notification procedure, the Poritz court sought to determine whether the state interest justified notification.⁽²¹²⁾ The court considered the following factors:

(1) [T]he type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.⁽²¹³⁾

Viewing the totality of these factors, the court found that the state interest in disclosure of this information substantially outweighed the sex offender's interest in privacy.⁽²¹⁴⁾

E.  Eighth Amendment: Cruel and Unusual Punishment

The United States Constitution prohibits punishment which is cruel and unusual.⁽²¹⁵⁾ In Weems v. United States,⁽²¹⁶⁾ the Supreme Court recognized that the question of what constitutes cruel and unusual punishment requires a fluid definition which may change as societal values or ideals change.⁽²¹⁷⁾ In Weems, the Court introduced the concept of proportionality and held that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense."⁽²¹⁸⁾

The principle of proportionality has remained central to the Supreme Court's analysis of cruel and unusual punishment.⁽²¹⁹⁾ The Court developed a three-pronged test to determine if a law is violative of the Eighth Amendment as cruel and unusual punishment.⁽²²⁰⁾ First, a court must look at "the gravity of the offense and the harshness of the penalty."⁽²²¹⁾ The second prong compares "the sentences imposed on other criminals in the same jurisdiction."⁽²²²⁾ For this factor, if more serious crimes are subject to the same penalty, the punishment may be deemed excessive, and, therefore, unconstitutional.⁽²²³⁾ Finally, the courts should compare the sentence imposed by other jurisdictions for the same crime.⁽²²⁴⁾

Recently, in Harmelin v. Michigan,⁽²²⁵⁾ several justices on the United States Supreme Court reconsidered the use of the proportionality test⁽²²⁶⁾ and it remains unclear how this decision will affect the future use of the proportionality test. The majority concluded that the particular statute being examined was not cruel and unusual, but several parts of Justice Scalia's opinion, which a majority did not join, openly questioned the future use of proportionality outside death penalty cases.⁽²²⁷⁾

The California courts adopted the proportionality standard in In re Lynch.⁽²²⁸⁾ Since adopting the three-pronged test, California has repeatedly applied it to test the constitutionality of its sex offender registration requirement.⁽²²⁹⁾ California is one of the few states that requires registration of first-time misdemeanor sex offenders.⁽²³⁰⁾ This means that offenses which would not require registration in some jurisdictions would require registration in California.⁽²³¹⁾ The California sex offender registration law⁽²³²⁾ has been struck down as cruel and unusual punishment when registration has been required after the commission of a relatively minor offense (a misdemeanor).⁽²³³⁾ As the severity of the convicted offense increased, so did the California courts' acceptance of registration as a constitutionally sound response.⁽²³⁴⁾

Registration was first held to be cruel and unusual punishment in In re Reed.⁽²³⁵⁾ The defendant in In re Reed was convicted of "soliciting `lewd or dissolute conduct' from an undercover vice officer in a public restroom" and was sentenced to three years probation.⁽²³⁶⁾ The California sex offender registration law required all persons convicted of this misdemeanor offense to register.⁽²³⁷⁾ The court first applied the Mendoza-Martinez factors to determine if registration was punitive.⁽²³⁸⁾ After concluding that the statute was punitive, the court applied the Lynch factors to ascertain whether registration was out of proportion to the offense committed.⁽²³⁹⁾ The court felt that "[b]y contemporary standards, the offenses for which persons may be convicted under section 647(a) are relatively minor. A gesture, a flirtation, an invitation for sexual favors, if accompanied by any touching and done in a public place, may suffice."⁽²⁴⁰⁾ Additionally, the court took into consideration the defendant's good employment history and that he had no prior arrests.⁽²⁴¹⁾ Further, the court stated, "[p]etitioner is not the prototype of one who poses a grave threat to society; nor does his relatively simple sexual indiscretion place him in the ranks of those who commit more heinous registerable sex offenses."⁽²⁴²⁾ Thus, for persons convicted of this type of offense in California, registration is considered cruel and unusual punishment.⁽²⁴³⁾ After In re Reed, courts in California held registration unconstitutional as cruel and unusual punishment for other misdemeanor offenses such as indecent exposure,⁽²⁴⁴⁾ simple battery, and contributing to the delinquency of a minor.⁽²⁴⁵⁾

In keeping with the proportionality standard,⁽²⁴⁶⁾ the more severe the offense, the more likely the California courts were to hold the registration requirement constitutional. In People v. Rodriguez,⁽²⁴⁷⁾ two male defendants were convicted of "lewd and dissolute" conduct which consisted of sitting in a parked car at a freeway rest stop "engaged in kissing, hugging, and sitting, alternately, on each other's laps" for a period of almost two hours.⁽²⁴⁸⁾ Though the court cited In re Lynch,⁽²⁴⁹⁾ it did not specifically analyze the case using the three-pronged proportionality test.⁽²⁵⁰⁾ In sustaining the constitutionality of the registration requirement, the court simply stated that it was not "out of all proportion to the offense."⁽²⁵¹⁾ The California courts have also found sex offender registration constitutional when a defendant has been convicted for lewd and lascivious conduct with a child,⁽²⁵²⁾ or when a defendant has been convicted of child annoyance and molestation.⁽²⁵³⁾ The California courts clearly appear to be particularly supportive of registration when an offender has victimized children.⁽²⁵⁴⁾

The registration statute used in Illinois has also been held constitutional when challenged as cruel and unusual punishment.⁽²⁵⁵⁾ The Adams court in Illinois applied the United States Supreme Court's test as set out in Trop v. Dulles⁽²⁵⁶⁾ to initially determine if registration was, in fact, a punishment.⁽²⁵⁷⁾ The legislative debates in Illinois indicated a regulatory intent.⁽²⁵⁸⁾ According to the Adams court, because the intent of the statute was held to be regulatory, cruel and unusual punishment analysis need not have been applied.⁽²⁵⁹⁾ Simply put, the Adams court held that registration was not punishment, let alone cruel and unusual.⁽²⁶⁰⁾

The Adams court, however, went beyond this initial evaluation by stating in dicta that even if the court were to assume that registration constituted punishment, it would not be considered cruel and unusual.⁽²⁶¹⁾ The defendant had argued that registration was "cruel in that it places a stigma upon him after his debt to society has been paid through incarceration."⁽²⁶²⁾ Since Illinois does not permit community notification, the court did not feel that any stigma attached to a defendant who was required to register.⁽²⁶³⁾ In this narrow ruling, however, the court suggested that it may find community notification unconstitutional if it were enacted in Illinois.⁽²⁶⁴⁾

Arizona, in State v. Lammie,⁽²⁶⁵⁾ has also upheld sex offender registration when challenged as cruel and unusual punishment.⁽²⁶⁶⁾ The Arizona Court of Appeals distinguished the facts before it from the California case of In re Reed.⁽²⁶⁷⁾ The defendant in Lammie was convicted of attempted sexual assault (a class-three felony in Arizona), while the defendant in In re Reed was convicted of "soliciting lewd or dissolute contact" (a misdemeanor offense in California).⁽²⁶⁸⁾ The court reasoned that "[a]n attempt to commit sexual assault is far more egregious than soliciting lewd or dissolute conduct."⁽²⁶⁹⁾ Because of these distinctions, the Arizona court held registration constitutional when applied to attempted sexual offenses, "especially felony offenses."⁽²⁷⁰⁾

In State v. Douglas,⁽²⁷¹⁾ the Ohio Court of Appeals held that sex offender registration did not constitute cruel and unusual punishment when applied to a defendant with multiple convictions.⁽²⁷²⁾ In this instance, the defendant was brought to court for failure to register as a sex offender.⁽²⁷³⁾ The defendant argued that the registration requirement is a "disproportionate sentence in that a similar requirement is not imposed upon those convicted of many crimes of violence, e.g., those convicted of murder, robbery, burglary."⁽²⁷⁴⁾ Despite the Douglas court's agreement with the defendant's reasoning, it deferred to the legislature's decision to require registration.⁽²⁷⁵⁾ Though the court doubted the usefulness of registration, the court stated that it could not find a statute unconstitutional simply because it found the statute to be "silly or undesirable."⁽²⁷⁶⁾

Because of the flexibility of the proportionality test, sex offender registration has not been found facially unconstitutional but has been rejected in certain cases as applied to certain offenders.⁽²⁷⁷⁾ When the defendant is a first-time offender or only a misdemeanor offender, in California at least, it appears that the proportionality test will indicate that the registration requirement may be cruel and unusual punishment.⁽²⁷⁸⁾ Convictions involving offenses in which the victims were children have been upheld as constitutional, justified by the proportionality test.⁽²⁷⁹⁾ When a statute survives an ex post facto challenge because the statute is held to be regulatory, the court need not address a cruel and unusual punishment challenge.⁽²⁸⁰⁾

  Conclusion

As has been shown through the above analysis, these statutes have been overwhelmingly upheld against an array of constitutional challenges.⁽²⁸¹⁾ In most cases, registration has been found to be regulatory, and thus survived ex post facto and cruel and unusual punishment challenges.⁽²⁸²⁾ Registration has not been overturned as a violation of either due process or equal protection.⁽²⁸³⁾

Because some courts may view community notification as disproportionate punishment for the offense committed, community notification provisions may face constitutional difficulties when faced with an ex post facto challenge or a cruel and unusual punishment challenge.⁽²⁸⁴⁾ A broadly drawn community notification statute--that could apply to all types of offenders--could be viewed as a punishment and, therefore, violative of the Ex Post Facto Clause, if applied retrospectively.⁽²⁸⁵⁾ Taken one step further, such a statute could also be considered a cruel and unusual punishment if found to be a disproportionate response to the offenders' crimes.⁽²⁸⁶⁾ A highly-structured notification provision, however, such as the one contained in Megan's Law, should survive all challenges because the structure of such laws ensures that the use of notification is highly related to the risk of re-offense.⁽²⁸⁷⁾

Released sex offenders present a unique danger to society because of their high rate of recidivism and the lack of known effective treatments.⁽²⁸⁸⁾ These two factors make sex offenders a permanent potential source of danger to society. The overcrowding of our prison system makes it impractical to imprison all of these offenders for life.⁽²⁸⁹⁾

Society is faced with a problem which must be addressed: How do we reduce the risk of harm to the public when these offenders are released from prison? Though it is doubtful that registration and community notification will prevent all future crimes by released sex offenders, they constitute one measure that may help control some of our society's most dangerous criminals. The United States Congress and many state legislatures agree that registration and community notification are an answer, and the courts have correctly supported their efforts by upholding these laws.

Ryan A. Boland^*

1. Man Charged in 7-Year-Old Neighbor's Killing, N.Y. Times, Aug. 1, 1994, at B5.

2. Suspect Confessed in the Murder of a 7-Year-Old, Prosecutors Say, N.Y. Times, Aug. 2, 1994, at B2.

3. Jan Hoffman, Calls Surge for Law on Ex-Sex Offenders, N.Y. Times, Aug. 4, 1994, at B1, B7.

4. James Barron, Vigil for Slain Girl, 7, Backs a Law on Offenders, N.Y. Times, Aug. 3, 1994, at B4 (reporting that 1,000 people gathered in a park in Hamilton Township in support of a sex offender registration and notification law for New Jersey).

5. See infra part II.

6. See infra notes 31, 48 and accompanying text.

7. Joseph F. Sullivan, Whitman Approves Stringent Restrictions on Sex Criminals, N.Y. Times, Nov. 1, 1994, at B1.

8. See William R. Kelly & Sheldon Ekland-Olson, The Response of the Criminal Justice System to Prison Overcrowding: Recidivism Patterns Among Four Successive Parolee Cohorts, 25 Law & Soc'y Rev. 601 (1992) (examining prison overcrowding and the resulting increase in parole and the effect this early parole has on the entire criminal justice system).

9. Although there have been many attempts at developing programs to treat sex offenders, some are not practical because of constitutional impediments. See Linda S. Densky, The Use of Depo-Provera in Treatment of Sex Offenders: The Legal Issues, 5 J. Legal Med. 295 (1984); see also Daniel L. Icenogle, Sentencing Male Sex Offenders to the Use of Biological Treatments: A Constitutional Analysis, 15 J. Legal Med. 279 (1994). Some treatment programs claim to reduce the recidivism rate but are expensive and still cannot promise success. Robert E. Freeman-Longo & Ronald V. Wall, Changing a Lifetime of Sexual Crime; Can Sexual Offenders Ever Alter Their Ways? Special Treatment Programs Provide Some Hope, Psychol. Today, Mar. 1986, at 58. The authors stated that:

Many state-sponsored treatment programs now exist tenuously, viewed with ambivalence by a public uncertain that sex offenders `deserve' more than the punishment of prison, concerned about the expense of treatment (which may be greater than the cost of imprisonment without treatment) and shocked that some of our clients, despite our best efforts, nonetheless commit further sexual offenses.Id. at 64.

10. See Freeman-Longo & Wall, supra note 9, at 58 ("We send many of them to jail when we can, both to protect ourselves and to punish them. But most return to the streets--sometimes quite quickly--and their imprisonment, far from being a deterrent, may have exacerbated their problems."); see also James Popkin et al., Natural Born Predators, U.S. News & World Report, Sept. 19, 1994, at 65, 73 (quoting an anonymous child molester: "`In jail you're removed from temptation but not from your thoughts . . . . Without counseling, you're the same person when you go to jail as when you get out.'").

11. Lita Furby et al., Sex Offender Recidivism: A Review, 105 Psychol. Bull. 3, 27 (1989) ("Despite the relatively large number of studies on sex offender recidivism, we know very little about it. Because of the many practical difficulties of designing and conducting studies in this area, methodological shortcomings are present in virtually all studies . . . ."). See generally Vikki Henlie Sturgeon & John Taylor, Report of a Five-Year Follow-Up Study of Mentally Disordered Sex Offenders Released From Atascadero State Hospital in 1973, 4 Crim. Just. J. 31, 61 (1980) ("Nearly 30% of the MDSOs [mentally disordered sex offenders] released into free society were convicted of new crimes during the five-year follow-up period. Approximately 15% were convicted of new sexual crimes.").

12. Furby et al., supra note 11, at 25. After conducting a comprehensive review of sex offender treatment programs, the authors concluded that "we can at least say with confidence that there is no evidence that treatment effectively reduces sex offense recidivism." Id.

13. See, e.g., Fla. Stat. Ann. § 775.21(2)(b) (West Supp. 1995). This section states that:

The high level of threat that a violence [sic] or repeat sex offender presents to the public safety, and the long-term effects that sex offenses cause victims, provide the state with sufficient justification to design and implement innovative mechanisms as part of a strategy to achieve a significant reduction in the commission of violent and repeat sex offenses.Id.; see also La. Rev. Stat. Ann. § 15:540(A) (West Supp. 1994) ("The legislature finds that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest."). Slade Gorton, a United States Senator from Washington, supported a Washington state law and also introduced a bill to create a federal version of the Washington law. Lisa Anderson, Demand Grows to ID Molesters; States Weigh Children's Safety Versus Offenders' Rights, Chi. Trib., Aug. 15, 1994, at 1. Senator Gorton stated:

"There's no question that it derogates the lifestyle of the sexual offender . . . .

I guess I regard the safety of the children and women who are unsuspecting victims to be infinitely more important than the comfort of the repeat sexual offender. I've just become convinced that the Washington State law has been very good for our communities and has probably saved a number of children from grievous harm and possibly death."Id. at 11.

14. Popkin et al., supra note 10, at 67 ("The stereotype of the sex offender as a rapacious stranger just does not hold true. Friends and relatives are much more likely than strangers to commit sexual offenses.").

15. Jerry Sheehan, legislative director of the American Civil Liberties Union of Washington said that "[o]ur view is there's been no community security demonstrated by it, and there's been ample demonstration of community hysteria generated by it." Barbara Kessler, States' Notification Laws for Offenders Questioned; Some See Washington, Louisiana Statutes as Intrusive, Dallas Morning News, Oct. 17, 1993, at A27.

In Washington, a sex offender's future home was burned to the ground after the community was notified that he would soon be moving nearby. Marla Williams, Gallardo Case Fuels Debate Over Law on Alerting Public to Sex Offenders, Seattle Times, Aug. 12, 1993, at B1; see also Jill Smolowe, Not in My Backyard! Citizens Rally to Keep Paroled Murderers and Sex Offenders From Settling in Their Communities, Time, Sept. 5, 1994, at 59.

In New Jersey, a father and son broke into a home, based on information they had received through the operation of Megan's Law, and began beating a man they wrongly believed was a sex offender. Jon Nordheimer, `Vigilante' Attack in New Jersey is Linked to Sex-Offenders Law, N.Y. Times, Jan. 11, 1995, at A1.

In Doe v. Poritz, 662 A.2d 367 (N.J. 1995), the New Jersey Supreme Court stated that:

We must not prejudge society with the ogre of vigilantism or harassment, although its potential obviously calls for the vigorous steps suggested by the Attorney General, and we must not assume that those in responsible positions will violate the intent of the law by giving notification far beyond that which is authorized . . . .Id. at 422.

16. Sex-Offender Registration Laws Pit Victims' Rights Against Civil Rights, N.Y. Times, Feb. 20, 1993, at 5 [hereinafter Sex-Offender Registration]. Dr. Fred Berlin, founder of the sexual disorder clinic at Johns Hopkins School of Medicine, feels that these laws may, in fact, increase recidivism rates. Katherine Seligman, Sex Offender Branding: Bad, Good or Ugly?; Public Notification Alerts Public, Hounds Ex-Cons, Phoenix Gazette, Mar. 9, 1994, at A1. Dr. Berlin stated that "[y]ou don't want to drive them underground" because "[t]hey'd just be more dangerous and desperate." Id. at A13. According to James Boren, a director of the Louisiana Association of Criminal Defense Lawyers, "[w]e haven't done anything except pacify ourselves into thinking we've solved this problem . . . . What you're doing is setting these offenders up for complete failure . . . . They'll get out and soon realize that no matter what they do, they're seen as evil, so they might as well be evil." Sex-Offender Registration, supra, at 5.

Alternatively, some therapists believe that these laws force offenders to confront their problems, thereby assisting in their own treatments. Laura A. Kiernan, New Hampshire; New Law Tough on Offenders; Those with Sex Convictions Must Register with State, Boston Globe, Aug. 15, 1993, at 37. Lance Messinger, director of the sex offender treatment program at the New Hampshire state prison, states that "[i]f they have their name[s] on a list, that only helps them remember again and again what they are capable of doing." Id.

17. Jim Hooker, Megan's Law Has a Harsh Prototype; How Statute Works in Another State, The Record, Oct. 10, 1994, at A1. Hooker's article reports the plight of one offender in Washington State. "[T]he 33-year-old's life was a shambles. He was evicted from the trailer he had shared with his girlfriend since his Aug[ust] 26 release from prison. Neighbors from whom he had once borrowed tools shunned him. Citing the emotional blows and the need to search for a new home, he abruptly quit a vocational training program." Id.

Steven Brown, Executive Director of the Rhode Island chapter of the American Civil Liberties Union, stated that "`[i]t simply gives the police one more opportunity to engage in harassment of people who have admittedly committed a very serious crime . . . . But once they have served their time, that should be it.'" Kiernan, supra note 16, at 38. "It's shocking that legislators . . . would believe it proper to brand as pariahs for life an entire class of criminals who have paid their debts to society." Lt. Michael J. Gorman, Even Child Molesters Don't Deserve This Law, Nat'l L. J., Apr. 17, 1995, at A20.

18. "What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses." Poritz, 662 A.2d at 422-23.

19. Maureen Kanka, Megan's mother, after attending oral arguments at the New Jersey Supreme Court over Megan's Law, said: "I have a dead little girl. How can they sit there and worry about if it's punishment? What about our kids? That's ultimately what it comes down to. Our kids have rights and it's time someone starting [sic] addressing them." Robert Hanley, New Jersey Supreme Court Hears Bitter Legal Argument Over `Megan's Law,' N.Y. Times, May 3, 1995, at B5.

20. Id.

21. Joseph F. Sullivan, Whitman Approves Stringent Restrictions on Sex Criminals, N.Y. Times, Nov. 1, 1994, at B1. Maureen Kanka believes that her daughter might still be alive had registration and community notification laws already been enacted in New Jersey at the time of her daughter's death. Id. at B1; see also supra note 13 and accompanying text. Some legislatures have enacted these statutes as "part of a strategy to achieve a significant reduction in the commission of violent and repeat sex offenses." Fla. Stat. Ann. § 775.21(2)(b) (West Supp. 1995).

22. See supra notes 1-21 and accompanying text; see also infra part III. Anna Quindlen, a syndicated editorialist and parent, has acknowledged the collision of values that these laws can present. Anna Quindlen, The Passion to Keep Them Safe, N.Y. Times, Aug. 6, 1994, at 19. Despite Ms. Quindlen's initial questions regarding the efficiency of these laws, her parental concerns lead her to support the laws:

Now, as a columnist I can tell you the things that are wrong with such a law. It can promote a false sense of security, lulling parents and kids alike into the big-bad-man mindset when many molesters are in fact trusted authority figures or family members.

. . . .

But after all the arguments are done, I am left with a feeling. It is the feeling you get when you think of a 7-year-old being raped. It is part revulsion, part rage . . . .

. . . .

 . . . Amid a plethora of concerns, issues and facts, there is no greater than this: the passion we all share to keep our children safe and sound.Id.; see also La. Rev. Stat. Ann. § 15:540A (West Supp. 1995). The Louisiana legislature found "that local law enforcement officers' efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies." La. Rev. Stat. Ann. § 15:540A (West Supp. 1995).

23. See infra part III.

24. See infra part III.

25. Although the United States Supreme Court has not heard a case concerning registration or community notification of a sex offender, the Court has heard one case concerning registration of a person previously convicted of a felony. See Lambert v. California, 355 U.S. 225 (1957). In Lambert, the Court held that registration was violative of due process as applied because the Court believed "that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand." Id. at 229.

On October 24, 1995, the lawyer representing Doe in Doe v. Poritz, 662 A.2d 367 (N.J. 1995), filed an appeal with the United States Supreme Court. Lawyer to Appeal a `Megan's Law,' Boston Globe, Oct. 26, 1995, at 10.

26. See infra notes 31-41 and accompanying text.

27. N.J. Stat. Ann. § 2C:7-5 to -10 (West Supp. 1995).

28. 42 U.S.C.A. § 14071 (West Supp. 1995) [hereinafter Crime Control Act].

29. A federal law required registration, before crossing the border, of any United States citizen "who is addicted to or uses narcotic drugs." This law was enacted in 1956, under 18 U.S.C. § 1407 (1958), repealed by Pub. L. No. 91-513, title III, § 1101(b)(1)(A), Oct. 27, 1970, 84 Stat. 1292. A complete discussion of the function of this law can be found in United States v. Eramdjian, 155 F. Supp. 914 (S.D. Cal. 1957).

30. Both California and Nevada have statutes which require other offenders to register. Cal. Health & Safety Code § 11590 (West 1991); Nev. Rev. Stat. Ann. §§ 207.080-.150 (Michie 1992). Both statutes follow procedures similar to those used in sex offender statutes. See infra notes 31-41 and accompanying text. The California statute is aimed at the registration of controlled-substance offenders, while the Nevada statute requires a larger class of convicted persons to register. Cal. Health & Safety Code § 11590 (West 1991); Nev. Rev. Stat. Ann. § 207.080 (Michie 1992). The California controlled-substance offender statute has withstood constitutional challenge on several grounds. In People v. Hove, 9 Cal. Rptr. 2d 295, 295 (Ct. App. 1992), the defendant argued that registration violated his First Amendment right of privacy. The court held that "although the registration requirement does intrude on Hove's right of privacy, it does not substantially burden that right." Id. at 296. Additionally, "mere speculation that registration makes the offender more readily available to surveillance does not establish that it would substantially burden Hove's right of privacy." Id. California has also held that this requirement does not constitute cruel and unusual punishment. See People v. Kun, 240 Cal. Rptr. 564, 565 (Ct. App. 1987). Nevada's statute has withstood a challenge that the registration requirement for habitual criminals violated the defendant's right to due process. Atteberry v. State, 438 P.2d 789 (Nev. 1968); see also W. J. Dunn, Annotation, Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Designated Officials, 82 A.L.R.2d 398 (1962 & Supp. 1990).

31. Ala. Code §§ 13A-11-200 to -203 (1994); Alaska Stat. §§ 11.56.840, 12.55.148, 12.63.010-.100 (1994); Ariz. Rev. Stat. Ann. §§ 13-3821 to -3824 (1956 & Supp. 1994); Ark. Code Ann. §§ 12-12-901 to -909 (Michie Supp. 1993); Cal. Penal Code §§ 290-290.5 (West 1988 & Supp. 1994); Colo. Rev. Stat. Ann. § 18-3-412.5 (West Supp. 1994); Conn. Gen. Stat. Ann. § 54-102r (West Supp. 1995); Del. Code Ann. tit. 11, § 4120 (Supp. 1994); Fla. Stat. Ann. §§ 775.21-.23 (West Supp. 1995); Ga. Code Ann. § 42-9-44.1 (1994); Idaho Code §§ 18-8301 to -8309 (Supp. 1995); Ill. Ann. Stat. ch. 730, paras. 150/1-10 (Smith-Hurd 1992 & Supp. 1995); Ind. Code Ann. §§ 5-2-12-1 to -13 (Burns Supp. 1994); Kan. Stat. Ann. §§ 22-4901 to -4910 (Supp. 1995); Ky. Rev. Stat. Ann. §§ 17.510-.540 (Michie/Bobbs-Merill Supp. 1994); La. Rev. Stat. Ann. §§ 15:542-:545 (West Supp. 1995) (registration requirement also found in La. Code Crim. Proc. Ann. art. 895H); Me. Rev. Stat. Ann. tit. 34-A, §§ 11001-11004 (West Supp. 1993); Mich. Comp. Laws Ann. §§ 28.721-.732 (West Supp. 1995); Minn. Stat. Ann. §§ 243.165-.166 (West 1992 & Supp. 1994); Miss. Code Ann. §§ 45-33-1 to -13 (Supp. 1994); Mo. Rev. Stat. §§ 566.600-.625 (Supp. 1995); Mont. Code Ann. §§ 46-23-501 to -507 (1993); Nev. Rev. Stat. Ann. §§ 207.151-.157 (Michie 1992 & Supp. 1993); N.H. Rev. Stat. Ann. §§ 632-A:11 to -A:19 (Supp. 1994); N.J. Stat. Ann. §§ 2C:7-1 to -5 (West Supp. 1995); N.M. Stat. Ann. §§ 29-11A-3 to -5 (Michie Supp. 1995); N.D. Cent. Code § 12.1-32-15 (Supp. 1995); Ohio Rev. Code Ann. §§ 2950.01-.99 (Anderson 1993); Okla. Stat. Ann. tit. 57, §§ 581-587 (West 1991 & Supp. 1995); Or. Rev. Stat. §§ 181.517-.519 (1993); R.I. Gen. Laws § 11-37-16 (1994); S.D. Codified Laws Ann. §§ 22-22-30 to -39 (Supp. 1995); Tenn. Code Ann. §§ 40-39-101 to -108 (Supp. 1994); Tex. Rev. Civ. Stat. Ann. art. 6252-13C.1 (West Supp. 1995); Utah Code Ann. § 77-27-21.5 (Supp. 1995); Va. Code Ann. §§ 19.2-298.1 to -298.3 (Michie Supp. 1995); Wash. Rev. Code Ann. §§ 9A.44.130-.140 (West Supp. 1995); W. Va. Code §§ 61-8F-1 to -8 (Supp. 1995); Wis. Stat. Ann. § 175.45 (West Supp. 1994); Wyo. Stat. §§ 7-19-301 to -306 (1994).

32. See supra note 31.

33. See, e.g., Minn. Stat. Ann. § 243.166(4) (West Supp. 1994).

The registration provided to the corrections agent must consist of a statement in writing signed by the person, giving information required by the bureau of criminal apprehension, and a fingerprint card and photograph of the person if these have not already been obtained in connection with the offense that triggers registration.

Id.; see also N.D. Cent. Code § 12.1-32-15(5) (Supp. 1995).

34. See supra note 31.

35. See, e.g., Ark. Code Ann. § 12-12-902 (Michie Supp. 1993). This section states that:

(1) "Habitual child sex offender" includes any person who, after August 1, 1987, is convicted a second or subsequent time in separate criminal actions for commission of any of the sex offenses set forth in subdivision (2)(A) of this section.

(2) "Sex offense" means:

(A) A violation of any of the following sections of the Arkansas Criminal Code, when the victim is under eighteen (18) years of age:

(i) Rape -- § 5-14-103;

(ii) Carnal abuse in the first degree -- § 5-14-104;

(iii) Carnal abuse in the second degree -- § 5-14-105;

(iv) Sexual abuse in the first degree -- § 5-14-108;

(v) Violation of a minor in the first degree -- § 5-14-120;

(vi) Violation of a minor in the second degree -- § 5-14-121;

(vii) Incest -- § 5-26-202[.]Ark. Code Ann. § 12-12-902(1)-(2)(A)(i)-(vii) (Michie Supp. 1993); see also, e.g., Ind. Code Ann. § 5-2-12-4 (Burns Supp. 1994); Nev. Rev. Stat. Ann. § 207.151 (Michie 1992); Ohio Rev. Code Ann. § 2950.01 (Anderson 1993).

36. See, e.g., Ark. Code Ann. § 12-12-902(1) (Michie Supp. 1993); Ill. Ann. Stat. ch. 730, paras. 150/2 (Smith-Hurd Supp. 1995); Ind. Code Ann. § 5-2-12-4 (Burns Supp. 1994); Me. Rev. Stat. Ann. tit. 34-A, § 11002(2) (West Supp. 1993).

37. See infra notes 38-40 and accompanying text.

38. See, e.g., Ala. Code §§ 13A-11-200 to -203 (1994); Ariz. Rev. Stat. Ann. §§ 13-3821 to -3824 (1956 & Supp. 1994); Cal. Penal Code §§ 290-290.5 (West 1988 & Supp. 1994); Del. Code Ann. tit. 11, § 4120 (Supp. 1994); Fla. Stat. Ann. §§ 775.21-.23 (West Supp. 1995); Nev. Rev. Stat. Ann. §§ 207.151-.157 (Michie 1992 & Supp. 1993); Or. Rev. Stat. §§ 181.517-.519 (1993); S.D. Codified Laws Ann. §§ 22-22-30 to -39 (Supp. 1995).

39. Ark. Code Ann. § 12-12-906 (Michie Supp. 1993) (10-year requirement to register); Ill. Ann. Stat. ch. 730, paras. 150/1-10 (Smith-Hurd Supp. 1995) (10-year requirement); Ind. Code Ann. § 5-2-12-13 (Burns Supp. 1994) (requirement ends with end of probation); Ky. Rev. Stat. Ann. §§ 17.510-.540 (Michie/Bobbs-Merrill Supp. 1994); Me. Rev. Stat. Ann. tit. 34-A, § 11003(1) (West Supp. 1993) (15-year requirement); Minn. Stat. Ann. § 243.166(6) (West 1992 & Supp. 1994) (10-year requirement); Ohio Rev. Code Ann. § 2950.06 (Anderson 1993) (10-year requirement); Utah Code Ann. § 77-27-21.5(8) (Michie Supp. 1995) (5-year requirement); Va. Code Ann. § 19.2-298.2 (Michie Supp. 1995) (15-year requirement); W. Va. Code § 61-8F-4 (Supp. 1995) (10-year requirement); Wyo. Stat. § 7-19-304 (1994) (10-year requirement).

40. See, e.g., Colo. Rev. Stat. Ann. § 18-3-412.5(6)(a)-(c) (West Supp. 1994); N.H. Rev. Stat. Ann. § 623-A:16(I)-(II) (Supp. 1994); N.D. Cent. Code § 12.1-32-15(6) (Supp. 1995); Okla. Stat. Ann. tit. 57, § 583(c) (West 1991); Wash. Rev. Code Ann. § 9A.44.140 (West Supp. 1995).

41. See, e.g., Cal. Penal Code § 290(g) (West 1988 & Supp. 1994) ("Any person required to register under this section who violates any of its provisions is guilty of a misdemeanor."); see also Nev. Rev. Stat. Ann. § 207.151 (Michie 1992 & Supp. 1993); S.D. Codified Laws Ann. § 22-22-31 (Supp. 1995). There is no guarantee that those who are required to register do actually comply. Thomas Guillen, Thousands of Sex Offenders Now Registered, Seattle Times, July 7, 1991, at B3. The article reported the results of a study covering the first eight months that Washington's registration law was in effect. Id. That study found that only about 57% of the adult offenders required to register had actually done so. Id. It has been reported that, in New Hampshire, of the 472 sex offenders released in 1993 and 1994, only 216 have registered. Across the U.S.A., News from Every State, U.S.A. Today, March 13, 1995, at 9A.

42. Ark. Code Ann. § 12-12-908 (Michie Supp. 1993). The Arkansas statute says the following:

Any habitual child sex offender registered under the provisions of § 12-12-904 may apply to the circuit court . . . for an order relieving him of the duty of further registration. . . . If, after the hearing, the court finds by a preponderance of the evidence that the habitual child sex offender is rehabilitated, the court shall grant an order relieving him of the duty of further registration under this subchapter.Ark. Code Ann. § 12-12-908 (Michie Supp. 1993); see also, e.g., Cal. Penal Code § 290.5 (West 1988 & Supp. 1994); Colo. Rev. Stat. Ann. § 18-3-412.5(7)(a)-(c) (West Supp. 1994); La. Rev. Stat. Ann. § 15:544B (West Supp. 1995); Me. Rev. Stat. Ann. tit. 34-A, § 11003(4)(C-1) (West Supp. 1994); Miss. Code Ann. §§ 45-33-1 to -13 (Supp. 1994); Nev. Rev. Stat. Ann. § 207.156 (Michie 1992 & Supp. 1993); Or. Rev. Stat. §§ 181.517-.519 (1993); Va. Code Ann. § 19.2-298.3 (Michie Supp. 1995); Wyo. Stat. § 7-19-304(b)-(c) (1994).

43. See supra note 31.

44. See, e.g., N.J. Stat. Ann. § 2C:7-1 (West Supp. 1995); La. Rev. Stat. Ann. § 15:540 (West 1994).

45. See supra notes 2-7 and accompanying text.

46. See supra notes 1-7 and accompanying text.

47. See infra part II.B.

48. Alaska Stat. §§ 12.63.010-.100, 18.65.087 (Supp. 1995); Ariz. Rev. Stat. Ann. § 13-3825 (Supp. 1994); Cal. Penal Code § 290.4 (West Supp. 1995) (allowing limited notification of the public through the use of a 900 phone number); Idaho Code § 18-8309 (Supp. 1995); La. Rev. Stat. Ann. §§ 15:540 to -549 (West 1995); Me. Rev. Stat. Ann. tit. 16, §§ 811-812 (West Supp. 1995); N.J. Stat. Ann. §§ 2C:7-6 to -11 (Supp. 1995); N.D. Cent. Code § 12.1-32-15 (Supp. 1995); Or. Rev. Stat. §§ 181.508-.519 (1993); Wash. Rev. Code Ann. §§ 4.24.550-.555, 9A.44.130-.140 (West 1992 & Supp. 1995).

In addition to allowing for community notification, the State of Washington has implemented a civil commitment provision as part of its Sexually Violent Predators Statute. Wash. Rev. Code Ann. §§ 71.09.010-.120 (West 1992 & Supp. 1995). This statute is part of the Community Protection Act which includes the registration and community notification laws which this Note will address. See infra notes 59-61 and accompanying text. In the civil commitment statute, after an offender has served his full criminal sentence, a civil jury can determine that the offender is a "sexually violent predator" and confine that individual to a specially-funded maximum security institution. Wash. Rev. Code Ann. § 71.09.050 (West 1992). The individual may be released only after a court has determined that he or she is no longer dangerous. Wash. Rev. Code Ann. § 71.09.090 (West 1992). Predictably, these provisions have also faced much criticism from some members of the legal community. John Q. La Fond, The Constitutionality and Morality of Civilly Committing Violent Sexual Predators, 15 U. Puget Sound L. Rev. 709 (1992). For a thorough review of the substance of these provisions and their constitutional implications, see Predators and Politics: A Symposium on Washington's Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev. 507 (1992). This civil commitment provision has been challenged and upheld on ex post facto, due process, and equal protection grounds in the state courts of Washington. In re Young, 857 P.2d 989 (Wash. 1993). The United States District Court for the Western District of Washington, however, recently held that the sexually violent predator statute, which contains the civil commitment provisions, is unconstitutional. Young v. Weston, No. C94-480C, 1995 U.S. Dist. LEXIS 12928 (Aug. 25, 1995). Specifically, the Weston court found that the statute violated the substantive due process component of the Fourteenth Amendment, the Ex Post Facto Clause, and the Double Jeopardy Clause. Id. at *10-30.

49. Megan's Law provides that the risk of re-offense will be determined by both the prosecutor of the county where the offender was convicted, and the prosecutor of the county where the registered person will reside, as well as by any law enforcement officials who either prosecutor deems appropriate to assess the risk presented by the registered offender. N.J. Stat. Ann. § 2C:7-8(d) (West Supp. 1995).

50. Doe v. Poritz, 662 A.2d 367 (N.J. 1995).

51. Id. at 381-87. In the event that the offender cannot afford an attorney to appeal the decision of the prosecutor, the Poritz court held that an attorney will be provided by the court. Id. at 382. Deborah T. Poritz, the attorney general of New Jersey, has announced that she will create a new section of the Public Defender's Office which will represent the offenders at these hearings. Robert Hanley, State Agency to Defend Sex Offenders, N.Y. Times, Oct. 31, 1995, at B5. This announcement came after many lawyers in New Jersey threatened to sue the state if they were forced to defend released sex offenders. Id.

52. N.J. Stat. Ann. § 2C:7-8b(1)-(8) (West Supp. 1995). The criminal history factors considered are: "whether the offender's conduct was characterized by repetitive and compulsive behavior, whether the offender served the maximum term, whether the offender committed the sex offense against a child." N.J. Stat. Ann. § 2C:7-8b(3)(a)-(c) (West Supp. 1995). Other relevant criminal history factors are: "(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[.]" N.J. Stat. Ann. § 2C:7-8b(4)(a)-(c) (West Supp. 1995).

53. N.J. Stat. Ann. § 2C:7-8c (West Supp. 1995). The statute reads as follows:

(1) If risk of re-offense is low, law enforcement agencies likely to encounter the person registered shall be notified;

(2) If risk of re-offense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General's guidelines, in addition to the notice required by paragraph (1) of this subsection;

(3) If risk of re-offense is high, the public shall be notified through means in accordance with the Attorney General's guidelines designed to reach members of the public likely to encounter the person registered, in addition to the notice required by paragraphs (1) and (2) of this subsection.N.J. Stat. Ann. § 2C:7-8c(1)-(3) (West Supp. 1995).

54. Poritz, 662 A.2d at 377-78. The Poritz court significantly revised the guidelines promulgated by the Attorney General. Id. at 381-87.

55. Id. at 378.

56. Id.

57. Id.; see also N.J. Stat. Ann. § 2C:7-8c(1)-(3) (West Supp. 1995).

58. See, e.g., N.J. Stat. Ann. § 2C:7-9 (West Supp. 1995); La. Rev. Stat. Ann. § 15:546(B)(1) (West Supp. 1995) ("An elected official, public employee, public agency, or criminal justice agency shall be immune from civil liability for damages for any discretionary decision to release relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith."); Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1995).

59. La. Rev. Stat. Ann. § 15:546A (West Supp. 1995); see also Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1995). Oregon allows the law enforcement agency to notify "anyone whom the agency determines is appropriate that the person is a predatory sex offender." Or. Rev. Stat. § 181.508(1) (1993). Subsection (2) of the Oregon statute states that "the agency shall consider notifying: (a) The person's family; (b) The person's sponsor; (c) Residential neighbors and churches, community parks, schools, convenience stores, businesses and other places that children or other potential victims may frequent; and (d) Any prior victim of the offender." Or. Rev. Stat. § 181.508(2)(a)-(d) (1993).

60. La. Rev. Stat. Ann. § 15:546A (West Supp. 1995); see also Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1995). The notification procedure used by one police department in Washington is described by Detective Glenn Quantz of the Thurston County Sheriff's Department as follows:

"What happens is, when a person who is a sex offender is released, they have to come to us and register . . . . They are photographed and fingerprinted. And then we get to work assembling as much information as possible about their criminal history so we can figure out how likely they are to offend again.

. . . .

If they are a Class 2 offender, then we know there is a higher risk that they'll offend, so we'll do community notification . . . . My partner, Detective Ed Thompson, and I will go door to door with fliers in a community to let them know that a sex offender is moving into the neighborhood.

With a Class 3 offender . . . we'll also notify the local news media and have them do a story."Gayle M.B. Hanson, Experts Vexed at what to do with Sex Offenders; Authorities Try New Methods For Tracking Them, Wash. Times, June 6, 1994, at A8.

61. State v. Ward, 869 P.2d 1062, 1070 (Wash. 1994). The notification provisions of other states are slightly different, yet seek to perform the same function.

Alaska's notification statute contains seemingly contradictory language stating that: "Information about a sex offender that is contained in the central registry . . . is confidential and not subject to public disclosure except as to the sex offender's name, address, photograph, place of employment, date of birth, crime for which convicted, date of conviction . . . ." Alaska Stat. § 18.65.087(b) (Supp. 1994) (emphasis added).

The Maine notification statute allows for public disclosure through a separate Criminal Information Act. Me. Rev. Stat. Ann. tit. 34-A, § 11004 (West Supp. 1995). The Criminal Record Information Act does not allow records to be publicly disseminated if there is a reasonable possibility that such release would "[c]onstitute an unwarranted invasion of personal privacy." Me. Rev. Stat. Ann. tit. 16, § 614(1)(C) (West Supp. 1994).

62. See infra part III.

63. See infra part II.B.1.

64. 42 U.S.C.A. § 14071 (West Supp. 1995).

65. 42 U.S.C.A. § 14071(f)(1)-(2)(A) (West Supp. 1995). States that fail to enact these provisions before September 13, 1997 will be ineligible for 10% of federal funding which would otherwise be allocated to the state under the Omnibus Crime Control and Safe Street Act of 1968. 42 U.S.C.A. § 14071 (f)(1)-(2) (West Supp. 1995) (the Omnibus Crime Control and Safe Streets Act of 1968 is located at 42 U.S.C. § 3795 (1988 & Supp. 1993)).

66. See supra notes 59-61 and accompanying text.

67. 42 U.S.C.A. § 14071(a)(1)(A), (b)(6)(A) (West Supp. 1995).

68. 42 U.S.C.A. § 14071(a)(3)(B)-(C), (b)(6)(B) (West Supp. 1995). A court determination that the person is a sexually violent predator is required. 42 U.S.C.A. § 14071(a)(2) (West Supp. 1995).

69. See supra note 33 and accompanying text. The Crime Control Act requires, inter alia, fingerprints, a photograph, identifying factors, and an address. 42 U.S.C.A. § 14071(b)(1)(A)(i)-(v) (West Supp. 1995).

70. 42 U.S.C.A. § 14071(d)(1)-(3) (West Supp. 1995).

71. 42 U.S.C.A. § 14071(d)(3) (West Supp. 1995). This is similar to the phrasing which is used by the State of Washington. See supra note 60 and accompanying text.

72. 42 U.S.C.A. § 14071(e) (West Supp. 1995).

73. 42 U.S.C.A. § 14071(f) (West Supp. 1995). The Attorney General of the United States may grant an additional two years to a state which is making good faith efforts to enact these laws. Id.

74. State v. Noble, 829 P.2d 1217 (Ariz. 1992); People v. Adams, 581 N.E.2d 637 (Ill. 1991); Doe v. Poritz, 662 A.2d 367 (N.J. 1995); State v. Ward, 869 P.2d 1062 (Wash. 1994).

75. See infra parts III.A-E.

76. U.S. Const. art. I, §§ 9, 10.

77. See infra notes 82-140 and accompanying text.

78. See Noble, 829 P.2d at 1220; Ward, 869 P.2d at 1068. A retrospective law is "[a] law which looks backward or contemplates the past; one which is made to affect acts or facts occurring . . . before it came into force." Black's Law Dictionary 1317 (6th ed. 1990).

79. See infra notes 82-140 and accompanying text.

80. See infra notes 82-140 and accompanying text.

81. See infra notes 83-140 and accompanying text.

82. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).

83. Id. at 390 (fifth emphasis added).

84. Id. at 391. "Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited." Id.

85. Id. at 390.

86. Collins v. Youngblood, 497 U.S. 37, 41 (1990). The respondent in Collins argued that a Texas statute, which was enacted after commission of his crime, could not be applied to him. Id. at 39. At his initial trial, the court fined him $10,000 and sentenced him to life imprisonment. Id. At the time of the sentencing, the court was not statutorily permitted to enter both a prison term and a fine for the offense the defendant had committed. Id. (emphasis added). A new statute permitted the Texas Court of Criminal Appeals to reform improper verdicts rather than order a new trial. Id. Thus, the court eliminated the fine from his sentence. Id. at 40. Though the Court of Criminal Appeals actually reduced the original sentence, the respondent still believed that there was an ex post facto violation. Id. The respondent sought a writ of habeas corpus from the United States District Court, arguing that the retroactive application of the new statute violated the Ex Post Facto Clause. Id. Because the Texas court had reduced the earlier punishment, by eliminating the fine, the United States Supreme Court found no ex post facto violation. Id. at 52.

87. Trop v. Dulles, 356 U.S. 86 (1957) (plurality opinion). The petitioner in Trop lost his United States citizenship and became stateless due to his conviction by court-martial for wartime desertion. Id. at 87. While stationed in Morocco, he was put in the stockade for breach of discipline. Id. The petitioner's wartime desertion ended when he willingly surrendered one day after escaping from the stockade. Id. Under the provisions of § 401(g) of the Nationality Act of 1940, which was amended later in 1944, the petitioner lost his citizenship. Trop, 356 U.S. at 88. The petitioner did not learn he had lost his citizenship until 1952 when he applied for a passport. Id. He then sought a declaratory judgment stating that he was a citizen and that the application of the amended statute to him was a violation of the Ex Post Facto Clause. Id. at 88-90. The government contended that the applicable statute did not impose a penalty and that the constitutional limitations on punishment did not apply. Id. at 94. Using the tests this opinion introduced, the Court concluded that the statute was a penal law. Id. at 94-99.

88. Trop, 356 U.S. at 95-96.

89. Id.

90. Id. at 96. The Trop opinion provides a helpful example of the analysis to be used when a law has both penal and nonpenal purposes:

A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.Id. at 96-97.

91. Id. at 96.

92. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

93. Id. (footnotes omitted). "Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face." Id. at 169. The appellee in Mendoza-Martinez was a dual citizen of the United States and Mexico. Id. at 147. It was undisputed that, in 1942, he left the United States and went to Mexico for the sole purpose of avoiding service in the United States Army. Id. Upon his voluntary return in 1946 he was charged and plead guilty to charges that he had evaded his service obligations. Id. He served his sentence of one year and a day in prison. Id. After five years of undisturbed living in the United States following his release, Mendoza-Martinez was served with an arrest warrant for deportation proceedings. Id. at 147-48. These charges arose because § 401(j) of the Nationality Act of 1940, which took effect in 1944, stated that a person who remained outside the United States for the purpose of avoiding military service lost his citizenship. Id. After applying the above-mentioned factors, the Court concluded that removal of citizenship was clearly a punishment. Id. at 170-86.

94. See infra notes 110-41 and accompanying text.

95. It is beyond the scope of this Note to argue which test is more appropriate for ex post facto analysis. This Note seeks to present the analysis used by the various courts that heard these challenges.

96. Poritz, 662 A.2d at 392-403. In United States v. Halper, 490 U.S. 435, 446 (1989), the Supreme Court discussed the circumstances under which a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. The Halper court held:

To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.Id. at 448. In Austin v. United States, 113 S. Ct. 2801, 2811 (1993), the government claimed that a civil forfeiture statute did not impose punishment. The Court held that even if the civil forfeiture statute did "serve some remedial purpose, the Government's argument must fail. `[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment . . . .'" Id. at 2812 (alteration in original) (quoting Halper, 490 U.S. at 448).

97. Poritz, 662 A.2d at 399-401.

98. See Halper, 490 U.S. at 448-49; Austin, 113 S. Ct. at 2812.

99. Poritz, 662 A.2d at 396.

100. Id. While statutory intent was central to its holding, the Poritz court noted that:

We do not hold that legislative intent is the sole determinant of "punishment" despite the dissent's claim that we do. Obviously, what the Legislature does is as important as what it says. Characterization of a provision or sanction as punishment depends . . . not only on the legislative purpose but on the implementing provisions. If the implementing provisions go beyond that regulatory purpose--if they are "excessive" in fact--and have a punitive impact, punishment results, regardless of claimed regulatory intent.Id. at 404.

101. See infra notes 104-41 and accompanying text.

102. See infra notes 104-42 and accompanying text.

103. See infra notes 104-42 and accompanying text.

104. Poritz, 662 A.2d at 404.

105. Id. at 390.

106. United States v. Halper, 490 U.S. 435 (1989).

107. Id. at 448-49.

108. Poritz, 662 A.2d at 378. In federal court in New Jersey, Megan's Law has had several widely publicized challenges. In Artway v. Attorney General of New Jersey, 876 F. Supp. 666, 692 (D.N.J. 1995), a district court ruled that the registration requirement was constitutional, but stated that the notification provision is punishment and cannot be applied retroactively or it would violate the Ex Post Facto Clause. The opinion stated that community notification works as a "badge of infamy" and is "an excessive intrusion into the realm of punishment." Id. at 686, 692. The decision, however, did not go so far as to declare community notification a cruel and unusual punishment; the holding merely stated that, for ex post facto analysis purposes, notification is a punishment. Id. at 679; see also Maureen Castellano, Judge: Megan's Law Unfairly Brands Sex Offenders, N.J. L.J., March 6, 1995, at 7.

In another case, a federal judge issued a preliminary injunction barring New Jersey officials from enforcing the community notification provision of the newly enacted statute. Diaz v. Whitman, No. 94-CV-6376 (D.N.J. Jan. 6, 1995) (order granting preliminary injunction). For a discussion of Diaz, see Fred Cohen, From the Editor: Sex Offender Registration Laws; Constitutional and Policy Issues, 31 Crim. L. Bull. 151 (Mar.-Apr. 1995) (reviewing the arguments presented on behalf of Carlos Diaz). Judge John W. Bissell felt that public notification could stigmatize the petitioner and also that the application to this individual could result in a violation of the Ex Post Facto Clause of the United States Constitution. Id. at 153. Responding to this injunction, a spokesman for the Attorney General of New Jersey, Chuck Davis, stated that "[w]e will continue to enforce Megan's Law as it exists. . . . The decision only applied to Mr. Diaz. We're not going to delay any other notifications." Robert Hanley, Judge Curbs Law on Sex Offenders, N.Y. Times, Jan. 4, 1995, at A1, B4. Governor Whitman, a strong supporter of the legislation said: "We took time to design what we believe to be the best legislation we could to meet people's concerns, and we believe it will withstand constitutional challenge." Id. at B4.

109. Poritz, 662 A.2d at 404. The court further stated:

The division of notification into Tiers has that as its clear purpose, and the definition of the factors that determine the Tiers are those not only rationally related, but strongly related to the risk of re-offense and the consequent need for greater or lesser notification. The warnings against vigilantism, the requirements of confidentiality, the restriction of notification to those likely to encounter the offender, all point unerringly both at a remedial intent and remedial implementation.Id. In Poritz, the New Jersey Supreme Court was also faced with a Bill of Attainder Clause challenge. Id. at 405-06. The court stated that the test for the Bill of Attainder Clause was virtually identical to the analysis underlying the determination of punishment it used when analyzing the Ex Post Facto Clause challenge. Id. The only difference the court noted was that the test for the Bill of Attainder Clause examined the historical nature of the type of law involved. Id. at 406. This factor did not alter its conclusion, however, and no violation of the Bill of Attainder Clause was found. Id. In Artway, a federal district court similarly found no Bill of Attainder Clause violation in Megan's Law. Artway, 876 F. Supp. at 683-85.

110. See infra notes 111-42. In Rowe v. Burton, 884 F. Supp. 1372, 1374-75 (D. Alaska 1994), several sex offenders sought preliminary injunctive relief to prevent the registration requirement and the use of community notification. The court granted the preliminary injunction blocking the use of community notification, but held that the offenders must register. Id. at 1388. The court granted the injunction because it felt that the offender was likely to succeed on the merits of the ex post facto claim because the court viewed notification as a punishment. Id. at 1379-80. Oregon's community notification statute was recently upheld in Williford v. Board of Parole and Post-Prison Supervision, No. CA A8345, 1995 Ore. App. LEXIS 1452 (Oct. 11, 1995). Finding that "the purpose of the enactment was protective," the Oregon Court of Appeals held that there had been no Ex Post Facto Clause violation. Id. at *2.

111. State v. Ward, 869 P.2d 1062 (Wash. 1994).

112. Id. at 1067-68. The Ward court restated the test for ex post facto analysis as follows: "A law violates the ex post facto clause if it: (1) is substantive, as opposed to merely procedural; (2) is retrospective (applies to events which occurred before its enactment); and (3) disadvantages the person affected by it." Id. (quoting In re Powell, 814 P.2d 635, 639 (Wash. 1991), grant of habeas corpus rev'd sub nom. Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993), and cert. denied, No. 94-8813, 1995 WL 230695 (U.S. Oct. 2, 1995) (citing Weaver v. Graham, 450 U.S. 24 (1981); Collins v. Youngblood, 497 U.S. 37 (1990))).

113. Id. at 1068. In Ward, Jeffrey Ward was convicted in 1988 for a first-degree statutory rape that he had committed in 1987. Id. at 1065. He was sentenced to forty-one months in prison and released in April 1990. Id. at 1066. The other appellant, John Doe, was convicted in 1980 for a first-degree rape which occurred in 1979. Id. Doe received his final discharge from supervision in 1992. Id. The legislature passed the Community Protection Act in 1990 and the registration requirement for sex offenders became effective on February 28, 1990. Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1995). Both defendants were required to register after their releases from prison. Ward, 869 P.2d at 1065-66.

114. Ward, 869 P.2d at 1068 (citing De Veau v. Braisted, 363 U.S. 144 (1960); Trop v. Dulles, 356 U.S. 86 (1957)).

115. Id. at 1065 (quoting 1990 Wash. Laws ch. 3 § 401). The Ward court quoted this portion of Washington's registration statute's legislative history:

The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement's efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency's jurisdiction. Therefore, this state's policy is to assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in [RCW 9A.44.130].Id. at 1065 (alteration in original) (quoting 1990 Wash. Laws ch. 3 § 401).

116. Id. at 1068.

117. See supra text accompanying note 93.

118. Ward, 869 P.2d at 1069-74.

119. See supra text accompanying note 93.

120. Ward, 869 P.2d at 1069. The court reasoned that, even if forced to register, "[s]ex offenders are free to move within their community or from one community to another, provided they comply with the statute's registration requirements." Id.

121. Id. Although the appellants' information had not been released to the public, they nonetheless attempted to challenge Washington's community notification provision. Id. The court noted that the defendants' information had not been released and thus the validity of community notification did not have to be addressed in this case. Id.

122. Id. The community notification provision states that "[p]ublic agencies are authorized to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection." Wash. Rev. Code Ann. § 4.24.550(1) (West Supp. 1995).

123. Ward, 869 P.2d at 1069.

124. Id. at 1070. The court stated that the use of disclosure is limited further still because the contents of the disclosure may contain only that information which is "`relevant and necessary.'" Id. (quoting Wash. Rev. Code Ann. § 4.24.550(1) (West Supp. 1995)). Situations in which the information may be disclosed are limited to those areas "`rationally related to the furtherance' of the goals of public safety and the effective operation of government. See Laws of 1990, ch. 3, § 116." Id. The court finished its treatment of this factor by stating that "[a]ny publicity or other burdens which may result from disclosure arise from the offender's future dangerousness, and not as punishment for past crimes." Id. at 1071.

125. Id. at 1071.

126. The second Mendoza-Martinez factor asks whether registration has been historically regarded as punishment. Ward, 869 P.2d at 1072. The court stated that "[r]egistration is a traditional governmental method of making available relevant and necessary information." Id. Thus, the Washington Supreme Court in Ward noted that registration has historically been a regulatory tool of government. Id. at 1072-73.

The court next looked to the third Mendoza-Martinez factor, whether registration promotes the traditional aims of punishment. Ward, 869 P.2d at 1073. Though deterrence is a traditional aim of punishment that may be partially achieved through the use of registration statutes, the Washington Supreme Court maintained that the main goal of registration was to aid law enforcement agencies in protecting their communities by allowing increased access to information. Id. "Even if a secondary effect of registration is to deter future crimes in our communities, we decline to hold that such positive effects are punitive in nature." Id. at 1079.

The final Mendoza-Martinez factor applied by this court asks whether the statute is excessive in relation to its regulatory purpose. Ward, 869 P.2d at 1073. The appellants contended that registration would be excessive and would result in making the registrants the focus of every ongoing sex crime investigation. Id. The Ward court stated that "`[w]hile a known sex offender living in a community where another sex offense occurs may well be a suspect, he has all of the due process and constitutional protections enjoyed by any other citizen and cannot be arrested simply because of his past conviction.'" Id. (quoting State v. Taylor, 835 P.2d 245, 249 (Wash. Ct. App. 1992), review denied, 877 P.2d 695 (Wash. 1994)).

127. See supra text accompanying note 93.

128. Ward, 869 P.2d at 1069. The analysis applied by the Washington Supreme Court in Ward followed the analysis that the Court of Appeals of Washington had used in two earlier cases. See In re Estavillo, 848 P.2d 1335 (Wash. Ct. App.), review denied, 859 P.2d 602 (Wash. 1993); State v. Taylor, 835 P.2d 245 (Wash. Ct. App. 1992), review denied, 877 P.2d 695 (Wash. 1994). In both court of appeals decisions, the courts had held that the registration requirement did not constitute punishment and thus did not violate the Ex Post Facto Clause. The In re Estavillo court had held that:

Although the sex offender registration requirement is retroactive, the `disadvantage' it places upon Estavillo is not punitive in nature. Since the purpose of the registration requirement is not to impose punishment, but to protect the public, and the effect of the requirement is not punitive, the registration requirement does not constitute an ex post facto law.In re Estavillo, 848 P.2d at 1337. The Court of Appeals of Washington in Taylor concluded that "while registration is disadvantageous to a registrant, the disadvantages are relatively minor and are not sufficient as to make the registration statute punitive in overall effect." Taylor, 835 P.2d at 249. The court further held that "it is a regulatory statute, which does not violate the prohibition against ex post facto laws." Id.

129. See infra notes 130-34 and accompanying text. In State v. Manning, 532 N.W.2d 244, 248-49 (Minn. Ct. App. 1995), the Court of Appeals of Minnesota applied several of the Mendoza-Martinez factors in finding that registration serves an overwhelmingly regulatory function. The Manning court followed this reasoning to hold that registration does not violate the Ex Post Facto Clause. Manning, 532 N.W.2d at 248-49.

The Illinois Appellate Court, in People v. Starnes, 653 N.E.2d 4, 7 (Ill. App. Ct. 1995), held that The Child Sex Offender Registration Act is not penal in nature and therefore does not violate the Ex Post Facto Clause.

130. State v. Noble, 829 P.2d 1217 (Ariz. 1992).

131. Id. at 1223. In Noble, the Arizona Supreme Court first analyzed whether registration was being applied retrospectively. Id. at 1220. For the Arizona court, "[a] law is retrospective if it `changes the legal consequences of acts completed before its effective date.'" Id. (quoting Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981))). Consequently, the Arizona court held that the statute had been applied retrospectively. Id. The State argued that the registration requirement was "not retrospectively applied because the registration requirement is triggered by conviction rather than by the commission of the sexual offense." Id.

After swiftly answering these questions, the only remaining question for the Noble court was whether registration constituted punishment. Id. at 1221. The Arizona statute did not indicate whether the intent of the statute was punitive or regulatory, so the court applied the Mendoza-Martinez factors. Noble, 829 P.2d at 1221. It concluded that the essential factor in upholding the constitutionality of sex offender registration statutes was the "overriding purpose of . . . facilitating the location of child sex offenders by law enforcement personnel." Id. at 1224. The court, however, limited its holding to the particular defendants involved, and noted that it "need not decide" whether its holding applied to other offenses. Id.

132. The Arizona Supreme Court found that registration had historically been regarded as punishment, but since the Arizona statute limits access to the registration information, the stigma resulting from registration is also limited. Noble, 829 P.2d at 1222-23. The court stated that "the provisions in the statute limiting access to the registration information significantly dampen its stigmatic effect." Id. Were this reasoning followed and applied to a community notification statute, the stigma the court feared would be present. Id. The existence of this potential stigma could convince the court that the statute operates primarily as a punishment, and thus may not be applied retrospectively. Id.

133. State v. Costello, 643 A.2d 531, 534 (N.H. 1994).

134. Id. at 533-34. The New Hampshire court cited Washington's State v. Ward, 869 P.2d 1062 (Wash. 1994), and Arizona's State v. Noble, 829 P.2d 1217 (Ariz. 1992) in upholding its registration statute.

135. See infra notes 136-42 and accompanying text.

136. State v. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert. denied, 637 So. 2d 497 (La. 1994).

137. Id. at 702. The defendant in Payne was charged with five counts of indecent behavior with juveniles and received five concurrent sentences of seven years each. Id. at 701-02. The crimes occurred between January 1989 and June 1991. Id. at 702. The registration statute became effective on June 18, 1992. Id. at 703; La. Rev. Stat. Ann. § 15:540 (West Supp. 1995).

138. Payne, 633 So. 2d at 703.

139. Id. at 702.

140. Id. In another holding, the Court of Appeal of Louisiana held that several of Louisiana's community notification provisions could not be applied retrospectively. State v. Babin, 637 So. 2d 814 (La. Ct. App.), writ denied, 644 So. 2d 649 (La. 1994). In Babin, the defendant challenged probation conditions which required him to notify by mail, at his own cost, all people "who live within a one (1) mile radius where the defendant will reside upon release." Id. at 824. The court held that because these provisions had been enacted after the defendant had committed his crimes, they could not be applied to him. Id.

The defendant, on appeal, also attempted to argue that the notification provisions were generally excessive. Id. at 825. However, the court did not address this argument because it held that the issue had not been properly preserved for appeal. Id.

141. State v. Sorrell, 656 So. 2d 1045 (La. Ct. App.), writ denied, 657 So. 2d 1035 (La. 1995).

142. Id. at 1047-48.

143. U.S. Const. amend. XIV, § 1. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Plyler v. Doe, 457 U.S. 202, 216 (1982).

144. Cleburne, 473 U.S. at 441-42.

145. Id. at 442. Only when an equal protection claim involves either a suspect classification or a fundamental right will the courts apply strict scrutiny to determine whether the law is unconstitutional. See San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). Strict scrutiny may be triggered when legislation "`deprived,' `infringed,' or `interfered' with the free exercise of some such fundamental personal right or liberty." Id. at 37-38 (quoting Skinner v. Oklahoma, 316 U.S. 535, 536 (1942)).

A right is fundamental when it is "explicitly or implicitly protected by the Constitution." Id. at 17. The confused and sometimes complex use of the various tests in the equal protection area is discussed in George C. Hlavac, Interpretation of the Equal Protection Clause: A Constitutional Shell Game, 61 Geo. Wash. L. Rev. 1349 (1993). The classifications determined by the United States Supreme Court to be wholly suspect are those based on race, ethnicity, or national origin. Russell W. Galloway, Jr., Basic Equal Protection Analysis, 29 Santa Clara L. Rev. 121, 132 (1989). The Supreme Court has held that "[i]n order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available." Bernal v. Fainter, 467 U.S. 216, 219 (1984) (footnote omitted).

146. Doe v. Poritz, 662 A.2d 367, 413 (N.J. 1995).

147. See infra notes 150-62 and accompanying text.

148. See supra note 31.

149. See infra notes 150-62 and accompanying text.

150. Poritz, 662 A.2d at 413-14.

151. Id. at 414.

152. Id.

153. Id. (citing State v. Mortimer, 641 A.2d 257, 266 (N.J.), cert. denied, 115 S. Ct. 440 (1994)).

154. Id. at 414 (citing State v. Wingler, 135 A.2d 468, 476 (N.J. 1957)).

155. Poritz, 662 A.2d at 415 ("The need for public safety outweighs the restrictions placed upon plaintiff as a result of his inclusion in this class.").

Facing a similar challenge in People v. Mills, 146 Cal. Rptr. 411, 416 (Cal. Ct. App. 1978), the California Court of Appeal deemed the defendant's equal protection argument "without substance." The court reasoned that the defendant presented no evidence of a suspect classification nor did he point to a lack of a legitimate state objective. Id. The court held that the registration requirement was rationally related to the legitimate governmental objective to promote public safety, and thus did not violate the Equal Protection Clause. Id. at 416-17.

156. State v. Ward, 869 P.2d 1062 (Wash. 1994).

157. Id. at 1076-77.

158. Id. at 1077 (citations omitted) (quoting State v. Coria, 839 P.2d 890 (Wash. 1992)).

159. Id.

160. Id. (citing State v. Danis, 826 P.2d 1096 (Wash. Ct. App.), rev. denied, 833 P.2d 1389 (Wash. 1992)).

161. Ward, 869 P.2d at 1077.

162. Id. In the Illinois case of People v. Adams, 581 N.E.2d 637, 642 (Ill. 1991), the defendant argued that registration violated the Equal Protection Clause because it was under-inclusive in that not all sex offenders were required to register. At the time of this case, Illinois's Habitual Child Sex Offender Registration Act did not require child pornographers and those who would use children for prostitution to register. Ill. Ann. Stat. ch. 730, para. 150/2 (Smith-Hurd 1992) (under current version of statute, Ill. Ann. Stat. ch. 730, para. 150/2 (Smith-Hurd Supp. 1995), such persons are required to register). Though certain sex offenders were not required to register, the court reasoned that "[w]hen the legislature creates a statute, it is not required to solve all the evils of a particular wrong in one fell swoop. The legislature may tailor a statute to the particular problem it is seeking to solve." Adams, 581 N.E.2d at 642. See generally, Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949) (discussing, in part, the classification of laws as over-inclusive or under-inclusive). In particular, regarding the under-inclusive problem (as challenged in Adams) the authors state:

Since the classification does not include all who are similarly situated with respect to the purpose of the law, there is a prima facie violation of the equal protection requirement of reasonable classification.

But the Court has recognized the very real difficulties under which legislatures operate . . . and it has refused to strike down indiscriminately all legislation embodying the classificatory inequality here under consideration.

In justifying this refusal, the Court has defended under-inclusive classifications on such grounds as: the legislature may attack a general problem in a piecemeal fashion; "some play must be allowed for the joints of the machine" . . . "the law does all that is needed when it does all that it can . . . ."Id. at 348 (footnotes omitted).

163. U.S. Const. amends. V, XIV.

164. Wisconsin v. Constantineau, 400 U.S. 433, 434 (1971) (liberty interest implicated where a statute permitted the posting of notices which identified persons who should not be allowed to purchase liquor because of excessive drinking).

165. Doe v. Poritz, 662 A.2d 367, 418 (N.J. 1995) (second alteration in original) (quoting Constantineau, 400 U.S. at 437).

166. Paul v. Davis, 424 U.S. 693 (1976).

167. Id. at 701.

168. Id. at 711.

169. Poritz, 662 A.2d at 417-18.

170. Id. at 419.

171. Id.

172. Id. at 421 (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)).

173. Id. at 421.

174. Poritz, 662 A.2d at 421. "The procedures we have adopted are intended to assure fairness in implement[ation] . . . and they should not be converted into long