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FIRM ARTICLES
August 17, 2005
Sex Offender Registration: Is Sex Offender Registration Constitutional?
By: Tony Partipilo, Attorney at Law and Ariella Rosenberg
In 2002, David Ballard of Texas was sentenced to life in prison for his habitual failure to register with authorities as a convicted sex offender. Ballard was arrested in 1990 for the sexual assault of a teenage girl. He plead guilty to the charge and was sentenced to 10 years on probation. After violating his probation in 1993, he received six years in prison and was released on parole in 1998.
As a requirement of his parole, Ballard signed paperwork indicating a lifetime duty to register himself annually as a sex offender. After failure to register in 2001 when he moved to a new house, Ballard was arrested on charges of trying to evade authorities and a jury gave him the maximum sentence life in prison. On appeal, Ballards lawyer challenged the punishment, and in June his sentence was reduced to 12 years.
Federal Law
In the last decade, federal law governing the registration of convicted sex offenders has grown stricter. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. 42 U.S.C. 14071. The law required the registration of persons convicted of offenses listed in the statute, which include criminal offenses against a victim who is a minor and sexually violent offenses. 42 U.S.C. 14071(a)(1). States were given three years from September 1, 1994, to comply with the new law. 42 U.S.C. 14071(g)(1).
In 1996, Congress amended the Wetterling Act and passed H.R. 2137, more popularly known as Megans Law. Named for a 7-year-old victim, who was raped and killed by a convicted child molester living across the street from her family, the amendment required every state to develop some procedure for notifying the public when a sex offender is released into their community. The Amendment further provided that the information collected under a State registration program may be disclosed for any purpose permitted under the laws of the State. 42 U.S.C. 14071 (e)(1). Additionally, the State shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section. 42 U.S.C. 14071 (e)(2). Since the passage of the 1996 law, all states have passed some form of Megans Law, adopting different procedures for the disclosure of sex offender information.
Under the current terms of federal law, a person required to register as a sex offender must comply until 10 years have elapsed since the person was released from prison or placed on parole, supervised release, or probation, or for life if the person has 1 or more prior convictions for an offense described, has been convicted of an aggravated offense described, or has been determined to be a sexually violent predator. 42 U.S.C. 14071 (b)(6).
Failure to register under a State program or failure to keep registration current shall be subject to criminal penalties in any State in which the person has so failed. 42 U.S.C. 14071 (d).
Is Sex Offender Registration Constitutional?
With the national enactment of Megans Law has come a backlash of challenges to states interpretations of the federal code. Convicted sex offenders have argued that registration requirements violate their fundamental rights. However, courts throughout the United States have generally upheld registration provisions.
In Michigan, a convicted sex offender, filed suit challenging the constitutionality of the 1994 Michigan Sex Offender Registration Act, MCLA 28.721, et seq., which requires convicted sex offenders to register with the local law enforcement agency where they reside. The Court rejected Lannis claim that the Act constituted cruel and unusual punishment, and also rejected arguments that the law violated the equal protection clause or the due process clause. Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998). Additionally, the Court rejected Lannis claim that the registration requirement was a form of double jeopardy, finding that the requirement was not overwhelmingly punitive and that the implied purpose is mainly regulatory. Lanni, 994 F. Supp. at 855.
Two recent Supreme Court rulings have also turned down challenges from sex offenders who argued that they deserved a chance to prove they werent dangerous and avoid having their pictures and addresses put on the Internet in state registration systems. In a 6-3 vote, justices rejected arguments by two Alaska sex offenders who contended that the Alaska registration law, which requires convicts to give police personal information four times a year or risk prison time, constituted a second form of punishment. Smith v. Doe, 538 U. S. 84 (2003).
The Court also ruled 9-0 that Connecticut did not have to hold separate hearings to determine the risk posed by convicted sex offenders who have completed their prison sentences before putting them in a registry. Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). Regardless of the severity of their crime, Connecticut sex offenders are all subject to the registration procedures provided for under the Connecticut version of Megans Law.
Conclusion
Despite the concerns of the ACLU and some federal and Supreme Court judges, the courts tend to consistently prioritize public safety over the rights of past sex offenders. In Congress, Senator Orrin Hatch and Representative Mark Foley have recently sponsored the Sex Offender Registration and Notification Act. If passed, this bill would further increase the registration requirements for sex offenders, requiring more frequent updates and lengthening the minimum duration to register from ten to twenty years. The bill would also introduce the use of tracking devices for first-time offenders and add a mandatory annual update to the taking of a sex offenders photograph and fingerprints.
Given the state of the law, where both the states and their federal counterparts are passing legislation for harsher sentences for those who fail to comply with mandatory registration requirements, it is crucial that anyone facing prosecution for a sexually based offense consult an attorney experienced in defending these types of charges. Moreover, any person who has been convicted of a sexual offense, whether or not it is a misdemeanor or a felony, should consult with an attorney to insure that they are in compliance with the current registration requirements in their jurisdiction. As the Ballard case demonstrates, failure to comply with registration requirements could lead to prison sentences that are even greater than the time imposed and served for the initial crime for which they were convicted.
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