But seriously folks – SORA is punishment

Introduction

New York’s Sex Offender Registration Act (SORA) imposes a lifetime of police supervision on tens of thousands of persons who have already served their sentences. It is applied retroactively to people whose offenses were committed before its enactment. A person pleading guilty to a SORA-eligible offense need not be told that this additional sanction will be imposed. His or her risk level may be assessed based on charges that were dismissed as part of the negotiated plea. Statements that he or she has never had the opportunity to cross-examine may be considered “clear and convincing evidence” of their truth. Indelible, lifetime deprivations of liberty are made in 5-minute hearings where the defendant has fewer rights than an insurance company contesting a payout. How is this possible? Because, we are told, SORA is not punishment. It’s strictly regulatory, like labeling a poison and putting it on the FDA registry for the safety of the public.

This is nonsense. Publicly labeling a human being as a “sex offender” for the sole purpose of warning the community that he or she should be shunned and monitored is a denunciation. It is a moral condemnation, which is the essence of punishment and precisely what distinguishes punishment from regulation.  In the 15 years since SORA went into effect, it has never been shown to promote public safety. But even assuming arguendo some causal connection,  “protecting public safety” under SORA is nothing but the deterrence and incapacitation of “offenders.” It is identical to the stated purpose of the NY Penal Law.  It is punishment.

SORA highlights the pre-scientific mentality of the criminal justice system. Bureau of Justice statistics show that sex offenders do not reoffend at a higher rate than other offenders – in fact, their recidivism rates are lower. The scientific consensus is that the risk of sexually reoffending varies greatly among different types of offenses. It hardly needs a scientist to show that most “sex offenders” do not fit the stereotype of the murderous child molester.  Nor is there any empirical support for the assumption that the moral seriousness of the offense is identical to the risk of reoffense.

Courts do not care about any of this. However sophisticated they may be when it comes to accident reconstruction or insider trading, it’s strictly crackerbarrel wisdom and moral indignation when it comes to adjudication under SORA. In this climate of regressing standards of decency, neither science nor empirical fact will slow the juggernaut. The only hope is to show that SORA is punishment.  A lifetime legal status as a “sex offender,” based on a past crime, that can never be eradicated no matter what the person does for the rest of his life – this is a punishment that must be based on facts found beyond a reasonable doubt.

The Legislative Changes to SORA over the Last 15 Years Have Changed What Was Arguably Regulatory into a Punitive Statute.

When New York enacted SORA  in 1995, the restrictions it imposed on persons who had already served their sentences were arguably limited enough in scope and duration to pass muster as regulatory, non-punitive measures. Registration was limited to 10 years by mail for all registrants except for persons found to have a mental abnormality that made them likely to sexually assault strangers. These so-called “sexually violent predators” (SVP) had to register quarterly in person for a minimum of 10 years unless they could show that they no longer suffered from this mental abnormality.

All registrants could petition at any time for relief from the duty to register. Dissemination of a registrant’s “sex offender” status and personal information was restricted to the police, to entities with populations whose vulnerability related to the nature of the sex offense and to individuals who identified themselves and stated a legitimate purpose. Based on these controls and moderating provisions, the Second Circuit concluded that SORA was non-punitive, although even then noting that “the question is not free from doubt.” Doe v. Pataki, 120 F.3d 1263, 1265 (2d Cir. 1997).

The subsequent changes by the Legislature have removed these limits and controls. Most registrants must now register for life with only a small minority eligible to be relieved from that burden after 20 or 30 years. No showing of dangerous mental abnormality is required to be classified as a maximum risk sex offender. Anyone who scores 110 or more points on the Risk Assessment Instrument may be required to register quarterly in person for life regardless of whether the offense was a felony or misdemeanor, involved a stranger or family member, force or statutory lack of consent or even sexual misconduct. The registry is now freely available to anyone in the world over the Internet. The number of crimes defined by SORA as “sex offenses” has more than tripled. In short, the current SORA is not the same statute that the Second Circuit held to be regulatory.

SORA also differs significantly from ASORA, the Alaska version of SORA that the U.S. Supreme Court held to be non-punitive in Smith v. Doe, 538 U.S. 123 (2003). The Supreme Court found it significant that ASORA does not require in-person registration or mandate the Internet posting of the registry, which in any event, consisted only of public “information.”

Neither the Supreme Court nor the Second Circuit thought the consequences to the registrants were particularly significant. In fact, the Supreme Court found that ASORA registrants suffered no housing or employment disabilities or even public hostility. Smith v. Doe at 100. The Second Circuit, while acknowledging some “unfortunate” consequences, opined that these were not state action and that in any case, registrants could “take refuge in the anonymity of urban life” or rely on “the magnanimous spirit of neighborliness prevalent in much of small town America.” Doe v. Pataki, 120 F.3d at 1284.

Under the present SORA regime, over 30,000 registrants live as second-class citizens, legally restricted from residing, working, associating or having the privacy rights that normal citizens take for granted, based solely on a past offense for which they have duly served the imposed sentence. A chilling view of the future may be had by looking at the hundreds of bills listed on the NY State Assembly website, targeting “sex offenders” and calling for more and more restrictions.

The piling on of sanctions after the initial enactment of SORA is a pattern shared by other legislatures. State high courts have accordingly begun to revisit their states’ versions of SORA, distinguishing Smith v. Doe and holding that the changes have made these formerly regulatory statutes punitive. See State v. Williams, 952 N.E.2d 1108 (Ohio 2011); Wallace v. State, 905 N.E.2d 371 (Indiana 2009); State v. Letalien, 985 A.2d 4 (Maine 2008); Doe v. State, 189 P.3d 999 (Alaska 2008); see also People v. Dipiazza, 778 N.W.2d 264 (Ct.App. Mich. 2009).

The New York Court of Appeals has never independently inquired into whether SORA is punitive, simply citing Doe v. Pataki without further analysis. See e.g., People v. Windham, 10 N.Y.3d 801, 802 (2008).

SORA violates the prohibitions against ex post facto legislation and double jeopardy because it imposes punishment retroactively and in addition to the previously imposed sentence. An examination of its text and legislative history shows that SORA is intended to serve the same punitive functions of deterrence and incapacitation as any other form of non-incarceratory punishment, such as parole or probation. SORA was enacted precisely because the Legislature believed that the existing penal sanctions provided insufficient post-custodial supervision of “sex offenders” who had completed their sentences. SORA’s stated regulatory purpose of protecting public safety is indistinguishable from the same purpose stated in the Penal Law: to protect the public from criminal acts by imposing deterrent and incapacitating measures on offenders. See P.L. § 1.05.

SORA is also retributive. It creates, affixes and disseminates the label “sex offender” for the sole purpose of announcing to the world that the individual is likely to commit a sex offense and should therefore be shunned and monitored. This not a neutral transmission of information but a public denunciation, which is the essence of retributive punishment.
It is not argued here that the Legislature may not impose these restrictions, only that they are plainly punitive and therefore may not be applied retroactively or as additional punishment.

Ex Post Facto and Double Jeopardy

The question of whether a statue is punitive or regulatory determines whether it triggers constitutional protections such as the 5th and 6th Amendment rights or the prohibitions against ex post facto laws, bills of attainder and double jeopardy.

The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution and Article I of the New York State Constitution protect against being punished more than once for the same crime. See e.g., Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994)(exorbitant tax on confiscated marijuana constitutes second punishment and therefore double jeopardy); People v. Williams, 14 N.Y.3d 198 (2010)(double jeopardy to impose post-release supervision on offenders already released from custody).

The Ex Post Facto Clause is located in the main body of the Constitution: in Article I, §9, under “Limits on Congress,” and in Article I, § 10, under “Powers Prohibited of States.” The Clause is an express and direct restraint on legislative power, based on the Framers’ recognition that lawmakers are prone to pass arbitrary or vindictive laws in response to popular fears and hatreds of persons perceived as threatening. Weaver v. Graham, 450 U.S. 24, 29 (1981); Cummings v. Missouri  at 322.

The “Intent-Effects” Test: Looking Behind the Label.

Since only punishment can violate double jeopardy or the ex post facto prohibition, the initial inquiry is whether a statute is regulatory or punitive. Hudson v. United States, 522 U.S. 93, 99 (1997). The “intent-effects” test first decides whether the legislative intent was clearly regulatory. If so, then only the “clearest proof” suffices to show that the statute is punitive in purpose and effect. Id.

Since no legislature is likely to openly label a retroactive statute as punitive, the inquiry into legislative intent must look behind the label. “How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them!” Trop v. Dulles, 356 U.S. 86, 94 (1958). “Doubtless, even the clear legislative classification of a statute as ‘non-penal’ would not alter the fundamental nature of a plainly penal statute.” Id. See also Kansas v. Hendricks, 521 U.S. 346, 361 (1997)(civil label not always dispositive).

The second step is to examine the statute’s effects. “Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Hudson at 99; United States v. Ward, 448 U.S. 242, 249 (1980).

The Court identified seven factors to guide the “purpose and effects” inquiry: whether the sanction 1) involves an affirmative disability or restraint; 2) has historically been regarded as punishment; 3) comes into play only upon a finding of scienter; 4) promotes the traditional aims of punishment; 5) applies to behavior that is already a crime; 6) is rationally connected to a non-punitive purpose; and 7) appears excessive in relation to this non-punitive purpose. Hudson at 99 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)).

When inquiring into legislative intent, the Court considers the text and history of the statute, which may include the political climate of the statute’s enactment; the legislative hearings and debates; the character of the sanction; the statute’s asserted remedial aims; and its codification and enforcement procedures.

The social and political climate surrounding the enactment are particularly relevant when the statute creates a harsh sanction against a disfavored class. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)(draft dodgers); Trop v. Dulles, 356 U.S. 86, 94-95 (1958)(wartime deserters); De Veau v. Braisted, 363 U.S. 144 (1960)(ex-felons); United States v. Lovett, 328 U.S. 303 (1946)(Communist sympathizers); Cummings v. Missouri supra (Confederacy sympathizers).

In such cases, the Court has paid great attention to the hearings, investigations and floor debates. For example, in United States v. Lovett, the Court held that a provision stopping the salaries of three government officials was not “a mere stoppage of disbursing routine,” but a bill of attainder. The Court took note of the political climate of the late 30’s and early 40’s, which was pervaded by fear that Communist sympathizers were infiltrating the Government. Lovett at 308, 311.

The Court related in detail the House debates leading up to the provision at issue and the House subcommittee’s purpose of “purging the public service of anyone found guilty of ‘subversive activity.'” “Subversive activity,” a term with no pre-existing definition, was defined by the investigating subcommittee as conduct directed to the ultimate overthrow of the U.S. Government. Id. at 311 n.3. The three respondents had been found “guilty” by the subcommittee of subversive activity based on their “membership and association” with suspect groups, as well as their “views and philosophies.” Id. at 311. The Court accordingly held that the provision was not a regulatory measure, but fell precisely within the constitutional prohibition against ex post facto laws and bills of attainder. Id. at 315.

In Kennedy v. Mendoza-Martinez,  the Court found punitive a Congressional Act whereby Americans who left the country to avoid the draft during wartime or national emergency automatically forfeited their citizenship. The Court considered the serious deprivation at issue, comparable to banishment, as well as the Congressional debates expressing a punitive intent towards draft-dodgers. Id. at 170-174.

The Court reasoned that it was particularly essential to safeguard constitutional protections during times of national emergency “for it is then, under the pressing exigencies of crisis that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. Id. at 165.

The Court quoted a decision from the Civil War era:
“If society is disturbed by civil commotion – if the passions of men are aroused and the restraints of law weakened, if not disregarded – these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws.”
Mendoza-Martinez at 165 (citing Ex parte Milligan, 4 Wall. 2, 120-121 (1866)). See also Cummings v. Missouri (finding Reconstruction restrictions on professions influenced by “the fierce passions” of the Civil War to be punitive).

Conversely, the Court has found legislation targeting ex-felons to be non-punitive when the stated regulatory purpose was specific and supported by reliable factfinding. In De Veau v. Braisted,  the Court cited the years of hearings and investigations by Congress and New York and New Jersey commissions to conclude that a provision limiting the employment of ex-felons on the New York waterfront was not punitive but a legitimate regulation:

“New York was not guessing or indulging in airy assumptions that convicted felons constituted a deleterious influence on the waterfront. It was acting on impressive, if mortifying evidence that the presence on the waterfront of ex-convicts was an important contributing factor to the corrupt waterfront situation.”
De Veau v. Braisted at 159-160.

In discerning whether the legislature intended a punitive or regulatory statute, the Court has also looked at how the sanction at issue has traditionally been viewed. For example, forfeiture of goods has long been considered a civil in rem penalty distinct from in personam penalties such as fines that are potentially punitive. Ursery v. United States, 518 U.S. 267, 278 (1996)(forfeiture of land used to grow marijuana not punishment for double jeopardy purposes). See also Kansas v. Hendricks at 357 (involuntary confinement of mentally abnormal is historic civil tradition).

Regulatory intent may be shown when the statute promotes independent non-punitive aims related to the sanction. See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984)(discouraging unregulated firearm commerce); De Veau v. Braisted supra (ensuring fair employment practices on New York waterfront).

The Court has also looked at the statute’s codification and enforcement procedures, finding “prima facie evidence” of regulatory intent when the statute is carried out by an administrative agency. Hudson at 103. Thus, the placing of ASORA’s notification provisions in Alaska’s Health, Safety and Housing Code was evidence of non-punitive intent. Smith v. Doe at 94. Similarly, the fact that civilly committed persons were supervised by the Department of Health and Social and Rehabilitative Services and not the Department of Corrections was evidence of regulatory intent. Kansas v. Hendricks, 521 U.S. at 368.

The lesson of Lovett, Trop and Mendoza-Martinez is the need to look behind the label to discern the actual legislative intent, particularly when the statute targets an unpopular group. In California Dept. of Corrections v. Morales, 514 U.S. 499, 514 (1995), the majority upheld a retroactive statute reducing the frequency of parole hearings for prisoners convicted of more than one murder, holding that the provision created only a “speculative” risk of increasing the punishment. Justice Stevens dissented, pointing out that the petitioners themselves had admitted that the measure was part of “the national trend towards ‘get-tough-on-crime’ legislation.” He observed:

“The danger of legislative overreaching against which the Ex Post Facto Clause protects is particularly acute when the target of the legislation is a narrow group as unpopular (to put it mildly) as multiple murderers. There is obviously little legislative hay to be made in cultivating the multiple murderer vote.
Morales at 522 (Stevens, J., dissenting).

The Supreme Court, while fully recognizing the gravity of striking down enacted laws, has repeatedly reaffirmed that it is uniquely the duty of the courts to uphold the constitutional prohibitions against vindictive legislation, and that not to do so would render the Constitution “little more than good advice.” Trop v. Dulles at 103-104.
“This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of the Constitution.”
Mendoza-Martinez at 159.

Measures Against “Dangerous Sex Offenders”

In Kansas v. Hendricks, the Court examined a civil commitment statute that provided for the involuntary confinement of persons “convicted of or charged with a sexually violent offense and who suffer from a mental abnormality or personality disorder” making the person likely to sexually assault strangers. Kansas v. Hendricks at 352.

In finding the legislative intent to be regulatory, the Court considered not only the long tradition of involuntary confinement of the “furiously mad” but also the Act’s purpose to provide “control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” Id. at 357, 367. The Court found it significant that the confinement lasted only as long as the mental disorder made the person unable to control his dangerousness and that confinement was not based on criminal culpability, but on mental disorders that by definition negate culpability. Id. at 362-364. Applying the Mendoza-Martinez factors, the Court emphasized that the statute did not come into play upon a finding of scienter, which “is customarily an important element in distinguishing criminal from civil statutes.” Hendricks at 362.

In Smith v. Doe,  the Court held that ASORA, the Alaska version of SORA, was not ex post facto punishment, reasoning that a statute could promote penal purposes and still be regulatory, so long as it was “plainly more remedial than punitive.” Id. at 94.
The Court found significant that the codification and enforcement procedures were “distinctly civil,” saying:
“The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. That leads us to infer that the legislature envisioned the Act’s implementation to be civil and administrative. By contemplating distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal sanction.
Id. at 96 (citing United States v. Ursery at 289.

The fact that Internet posting of the registry was not mandated by ASORA but by an administrative agency was a further indication that ASORA was intended to be regulatory. Id. at 91, 94.

Applying the first Mendoza-Martinez factor, the Court found that the Act created no substantial occupational or housing disabilities “that would not have otherwise occurred through routine background checks by employers and landlords.” In the entire 7-year history of ASORA, there had been only one incident of hostility towards a registrant, which would have occurred anyway, because the “information about the individual’s conviction was already in the public domain.” Id. at 101. Moreover, ASORA did not require in-person registration; no registrant had ever been required to update his information in person. Id. at 101.

The dissemination of the registry did not resemble the historic punishments of shaming or banishment because the posting consisted only of “truthful information” in the public domain, promoting the same goal of “transparency” as public trials and sentencings.

The Court also found that the registration requirements did not resemble probation or supervised release because ASORA registrants were free to leave Alaska. Id. at 100-101.

The Court found that lifetime sanctions and unrestricted dissemination of the registry were not excessive in relation to the purpose of protecting the public from recidivism. Id. at 103-105. As for ASORA’s coming into play only upon a finding of scienter and based on behavior that was already a crime, the Court summarily dismissed these factors as “of little weight.” Id. at 105.

Justice Souter took issue with the majority’s requiring the petitioner to show by the “clearest proof” that ASORA was punitive in effect. He pointed out that this heightened burden applies only when the evidence of legislative intent clearly points in the civil direction, which was not the case with ASORA. Id. at 107 (Souter, J., concurring). See Hudson at 99 (petitioner must show statute is so punitive in purpose and effect “as to transform what was clearly intended as a civil remedy into a criminal penalty”) (emphasis added).

Justice Souter noted several factors indicating ASORA’s punitive intent, such as its enactment in a climate of extreme animus towards sex offenders and its use of a past crime as the touchstone, “probably sweeping in a significant number of people who pose no real threat to the community.” This, he said, “serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.” Id. at 109.

Justice Souter questioned the State’s claim that ASORA merely disseminates “information,” noting that its purpose was “to send a message,” and that the selection itself was a statement comparable to shaming punishments “to disable offenders from living normally in the community.” Id. at 109. He nevertheless concluded that, because the indications of punitive and regulatory character were “in rough equipoise” the presumption of constitutionality gave the State the benefit of the doubt. Id. at 110.

Justice Stevens dissented, arguing that the analysis should begin by considering that ASORA created severe deprivations of constitutionally protected liberty interests, imposed only on persons convicted of an enumerated crime. Id. at 111-112 (Stevens, J., dissenting). Unlike the civil commitment statute held to be non-punitive in Kansas v. Hendricks, ASORA was based on “a conviction standing alone.” Id. at 113.

Moreover, the public safety purpose of deterring recidivism is quintessentially penal and identical to the rationale for the “three-strikes” statute upheld in Ewing v. California, 538 U.S. 11 (2003) (life sentences for repeat non-violent offenders justified by State’s public-safety interest in incapacitating and deterring recidivist felons). Id. at 114-115. Justice Stevens acknowledged that these sanctions would be constitutional if imposed as part of a sentence, but the retroactive application was “a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution.” Id. at 114.

Justice Ginsburg, in a dissent joined by Justice Breyer, agreed that, where the Act was not clearly civil, its purpose and effects should be evaluated neutrally. Applying the Mendoza-Martinez factors, Justice Ginsburg found that “beyond doubt” ASORA imposed an affirmative disability in the form of “onerous and intrusive obligations” and exposing registrants “through aggressive public notification of their crimes to profound humiliation and community-wide ostracism.” Id. at 115 (Ginsburg, J., dissenting). The registration provisions were comparable to parole, while the notification provisions were a form of shaming punishments marking a person as someone to be shunned. Moreover, these sanctions were triggered entirely by the past conviction, showing that ASORA “retributively targets past guilt.” Id. at 116. The sanctions were excessive in relation to the stated purpose of protecting public safety because, in addition to the “exorbitant” reporting requirements, the statute made no provision for any possibility of rehabilitation. Id. at 117.

Challenges to SORA in Federal Court

“Megan’s Law” was a reaction to the sexual assault and murder of a young child in New Jersey. The New Jersey legislature rushed the bill to the Assembly floor as an emergency measure, bypassing the committee process and voting it into law without opposition. Artway v. New Jersey, 81 F.3d 1235, 1243 (3d Cir. 1996). The United States District Court of New Jersey sensitively weighed the presumption of constitutionality of legislation against the constitutional duty of the judiciary to protect constitutional rights, saying:

“[The Court] must not lose sight of its judicial function even in the face of public outcry. It is this Court’s function and responsibility to protect the constitutional rights of the minority or the individual. That role and task becomes most immediate and onerous in situations where legislatures encroach individual constitutional rights in the name of the common good. Artway v. New Jersey, 876 F.Supp. 666 (D.N.J. 1995) reversed 81 F.3d 1235 (3d Cir. 1996).

The District Court distinguished Megan’s Law from the Waterfront Act held to be regulatory in De Veau v. Braisted, which had restricted the employment of ex-felons. The latter had not affixed “a public badge of ignominy” but was “an attempt to regulate a specific and vital sphere of employment and commerce.” Although De Veau created a “cloud hanging over an ex-convict’s future,” that cloud shaded only one area of life: employment on the Waterfront. Megan’s law, in contrast, “constitutes an eclipse affecting every aspect of the registrants’ lives.” Artway v. New Jersey, 876 F.Supp. at 686.
The District Court found that Megan’s law “goes well beyond all previous provisions for public access to an individual’s criminal history” and that this public dissemination was inherently a form of stigmatizing that has been historically perceived as punishment. Id. at 689.

When SORA went into effect on January 21, 1996, it applied to anyone convicted of an enumerated “sex offense” who was incarcerated or on probation or parole on that date and all those sentenced thereafter. It was explicitly designed to be retroactive: the Assembly sponsor’s statement in the Bill Jacket reasoned that, “without retroactive reach, the Act would leave the majority of sexual offenders cloaked in anonymity, despite the fact that offenders who have already committed their crimes are no less dangerous than those who will commit crimes after the enactment of the Act.” Doe v. Pataki, 120 F.3d at 1277 (internal quotation marks omitted).

SORA was immediately challenged in the District Court of the Southern District of New York as a violation of the Ex Post Facto Clause. Doe v. Pataki, 919 F.Supp. 691, 694 (S.D.N.Y. 1996), reversed, 120 F.3d 1263 (2d Cir. 1997). The court noted that SORA was based on the New Jersey law but that the Legislature had attempted to cure the flaws identified by the District Court in Artway supra.

The cure included a preamble to SORA, stating that one of its purposes was to bring the state into compliance with the federal Jacob Wetterling Act although, as the court noted, the Act did not require the states to apply their laws retroactively. Doe v. Pataki, 919 F.Supp. at 694-695. The remainder of the preamble cites the purpose of protecting the public and assisting law enforcement by placing deterrent measures on “sex offenders”:

“The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government.

“The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.

“The system of registering sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.

“Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing offenders’ due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm.”

The District court, in a subsequent decision, quoted the Assembly floor debates leading to the passage of SORA showing a distinctly punitive intent towards “sex offenders,” which the legislators equated with child molesters:

I don’t know if, when [a sex offender is] released from prison, he will come back, but the statistics. . . have shown that once a pedophile, always a pedophile
(Assemblyman Herbst).

We are talking about innocent children here, children who are exploited by the lowest of the low. No one is lower than a person who will exploit a child. . . . [W]e are telling those who act like that, who are like that, that we in New York have had it. We are coming out to get them and it’s going to stop.
[. . . . ]
Today, vote for this bill, take a chance regardless of what it may be, the Constitution, the apprehension. Don’t give the protection to the animals, don’t give it to the people exploiting children, protect the children.
(Assemblyman Healey).

I have listened to some of my colleagues talk about the constitutionality of the retroactive provisions. I have listened to people say, “Well, these people are wrongly criticized, will they be wrongfully abused in their neighborhoods?” You know what? I don’t care.
(Assemblywoman Wirth).

You know, we are talking about fairness for people who committed the ultimate crime of molestation, of rape, of a three-year-old girl, of a nine-year-old boy. We, as a society, dictate what’s fair and what’s right and what is just through our laws and our rules. That’s what makes us all up; that’s what makes government so we can dictate what’s right and what’s fair. And I will tell you personally, I think these people have no rights. . . .
(Assemblyman Manning).

The usual defenders of the depraved, once again, we are worried about the constitutional rights of the criminals. Finally a bill addresses the right of society.
(Assemblyman Kirwan)(emphasis added).

[R]epeat sexual predators, especially those that prey on children, are the human equivalent of toxic waste. . . .
(Assemblyman Tedesco).

Doe v. Pataki, 940 F.Supp. 603, 621-622 (S.D.N.Y. 1996) reversed by Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997).

Doe v. Pataki

In Doe v. Pataki, the Second Circuit reversed the District Court and held that SORA was non-punitive. The court found the registration requirements for most registrants to be minimal, consisting of mailing an address verification form annually for 10 years, and where failure to report was an “A” misdemeanor. 1996 Corr. L. § 168-t. Although the limited class of SVP’s had to register quarterly in person, the court repeatedly emphasized that all registrants, including SVP’s, could be relieved from the duty to register. Doe v. Pataki, 120 F.3d 1267, 1270, 1278, 1282, 1285, 1286 (citing 1996 Corr. L. § 168-o).

The court also relied for its conclusion on the notification being “carefully controlled.” Under the 1996 statute, information about level 1 registrants was provided only to the local police. For level 2’s, the police had the discretion to notify any entity with vulnerable populations “related to the nature of the offense committed by such sex offender.” This information included the registrant’s photograph, crime of conviction, “modus of operation” and zip code. For SVP’s, the police could disseminate their exact address to these entities. 1996 Corr. L. § 168-l(6)(b.

Direct public notification was limited to a 900 phone number for inquiries about whether a named person was on the registry. Callers had to provide specific identifying information about that person, pay for the call, provide their own names and addresses, and be at least 18 years old. They were told that the call would be recorded and that their information would be maintained in a written record. 1996 Corr. L. 168-p(1).

The court noted that, even as to SVP’s, the public was only allowed access to their information by going to the local police station and expressing a purpose in writing for looking at the subdirectory. Thus, “the only affirmative dissemination that can be conducted by the state is to entities with vulnerable populations and not to neighbors, employers, landlords or news agencies.” Id. at 1278.

The court found SORA’s implementation procedures to be civil, emphasizing that although the final risk level determination was by the sentencing court, the court had to follow the recommendation of the Board of Examiners of Sex Offenders, a panel of “experts,” unless it was arbitrary or capricious. Id. at 1268-1269, 1278 (citing People v. Ross, 169 Misc.2d 308, 312 (Sup.Ct. N.Y. Co. 1996).

The court dismissed as “isolated remarks” the speeches quoted in the District Court’s decision supra, finding them “unclear and conflicting” and therefore irrelevant to determining legislative intent. Id. at 1277 (citing Doe v. Pataki 940 F.Supp. at 621-622). On the other hand, the court gave great weight to the Assembly bill sponsor’s statement that, “without retroactive reach, the Act would leave the majority of sexual offenders cloaked in anonymity.” Id. at 1277.

The court recognized the “unfortunate incidents” of violence against “sex offenders” and “incremental burdens” caused by SORA, but said they resulted from publicly available information, flowed from the underlying conviction and were not state action. Moreover, the registry contained only publicly accessible “information.” Id. at 1280.

Changes to SORA after Doe v. Pataki

In the 15 years since Doe v. Pataki, the Legislature has eliminated the limits and moderating provisions on which the Second Circuit relied to find SORA non-punitive.
Whereas most registrants originally registered for 10 years, all level 2’s and 3’s must now register for life. Corr. L. § 168-h. Lifetime registration is also imposed on three subsequently created categories who are not eligible even to petition for relief from this burden, regardless of risk level. These are: “sexually violent offenders,” “predicate sex offenders” and “sexual predators.” Corr. L. §§ 168-a(7)(8)(9); Corr. L. § 168-o.
“Sexual predator” is the same as SVP under the 1996 statute: a person having a conviction for a “sexually violent offense” plus a mental abnormality or personality disorder making the person likely to sexually assault strangers. A “sexually violent offense” is any completed or attempted offense listed in § 168-(a)(3).

“Predicate sex offender” means having a prior conviction of any completed or attempted offense listed in § 168-a(2)(3), which includes misdemeanors and non-contact offenses. There are no tolling provisions. Thus, anyone convicted of a “sexually violent offense” or any two “sex offenses” from SORA’s ever-expanding menu, will never be relieved of the duty to register no matter what he does for the rest of his life.

Level 1 registrants, so long as they not within any of the three additional categories, will theoretically be relieved of the duty to register in 20 years, but this is likely to change as 2016 approaches. In 2006, as the first registrants were due to finish their 10-year terms, the Legislature increased the duration to 20 years for level 1 and life to level 2, in response to public pressure. Joseph Bruno, the State Senate Majority leader at the time, warned, “We cannot allow these dangerous offenders to blend back into society simply because 10 years have passed.”

The maximum risk level, requiring quarterly registration in person, is no longer limited to SVP’s. It is sufficient to have a score of 110 on the Risk Assessment Instrument, regardless of the nature of the underlying offense, which need not even be sexual. Levels 1 and 2 must go to the local police every 3 years to have a new photograph taken. Corr. L. § 168-f(2).

The current statute, far from controlling notification so that it does not go automatically “to neighbors, employers, landlords or news agencies” is now unrestrictedly available to anyone in the world with computer access. Doe v. Pataki at 1278. Corr. L. § 168-q.
In 1996, the number of “sex offenses,” including attempts, was about 30. The current list is over 100. Corr. L. § 168(a)(2)(3).

Although the Second Circuit found risk level determination to be decided by the “experts” of the Board, indicating a civil statute, SORA now mandates a criminal proceeding prosecuted by the local District Attorney’s Office and adjudicated by the sentencing court. Doe v. Pataki at 1268-1269, 1278. Corr. L. §§ 168-d(3); 168-n(3). It is now the People who make the risk level recommendation in all non-incarceratory cases. Corr. L. §§ 168-d(3). Even in incarceratory cases where the Board prepares the Risk Assessment Instrument and case summary, that is the extent of the Board’s involvement. Corr.L. §§ 168-d(3); 168-n(3).

Moreover, the Board is not a civil agency, but essentially a specialized parole board, composed entirely of parole and probation employees. Corr.L. §168-l(1). Although the statute requires them to be “experts in the field of the behavior and treatment of sex offenders” it does not define expertise or require any educational or professional qualifications. The members of the Board are not mental health professionals but law enforcement personnel. Their sole function is to recommend risk levels by reviewing court and prison records on behalf of the prosecuting state.

Registration and notification are implemented by the local police and the Department of Criminal Justice Services (DCJS), neither of which is a civil agency. Level 3 registrants report quarterly to the local police station, while levels 1 and 2 report there every 3 years to be photographed. Corr.L. § 168-f(2). Compliance is enforced by the police. The first failure to report is an E felony and any subsequent failure a D felony. Corr.L. § 168-t.

The Second Circuit’s dismissiveness towards legislative debates as evidence of punitive intent is inconsistent with Supreme Court precedent. See Mendoza-Martinez, Lovett and Trop supra. These speeches, made for the record by the legislators who enacted SORA, urging disregard of the constitutional rights of “the human equivalent of toxic waste,” are far from “unclear and conflicting.” Id. at 1277. Any unclarity about the statute’s punitive intent has been resolved by the subsequent amendments.

The burdens of SORA are no longer “incremental” nor may registrants count on urban anonymity, much less the magnanimous spirit of small-town America which has responded by enacting severe residency restrictions all over the state. SORA registrants are now the target of increasingly stringent state action, from federal laws barring them from public housing to local laws barring them from public spaces such as beaches or parks, because they are presumed to be likely to abduct and sexually assault children. SORA’s prohibition of all registrants from working on an ice cream truck, while perhaps not affecting many persons, nevertheless demonstrates its assumption that all “sex offenders” are murderous child molesters and paves the way for broader restrictions. Corr. L. § 168-v. Several bills are pending in the Legislature proposing amendments barring all registrants from employment, paid or unpaid, in any activity involving children, regardless of the nature of the conviction.

SORA directs the DCJS to provide the registry to the Department of Health and Department of Insurance to make registrants ineligible to receive reimbursement or coverage for certain drugs, procedures or supplies. Corr. L. § 168-b(2). It directs the DCJS to release the registry to internet providers, who may restrict or remove them from their services, and to actively disseminate it to municipal housing authorities to enforce their ineligibility to live in public housing. The DCJS also informs the housing authorities “at least monthly” of the home address of any level 2 or 3 registrant “within the corresponding municipality.” Corr. L. §§ 168-b (10)(12).

SORA is Punitive

Even assuming the legitimacy and efficacy of SORA, there is no reasonable view of it as non-punitive. It is a form of post-release supervision not pronounced at sentencing and retroactively applied. Although SORA claims that “protecting public safety” is a regulatory purpose, it implements this goal exclusively by imposing deterrent, incapacitating and retributive post-custodial restrictions on convicted “offenders.” “Protecting public safety,” as used by SORA, is not an independent regulatory purpose but identical to the purpose of all post-custodial punishment.

SORA also serves the retributive, expressive function of punishment. It creates the legal status of “sex offender” which, like the term “subversive,” is inherently stigmatizing. Just as “subversive” equated anyone ever associated with the Communist Party with traitors seeking to overthrow the U.S. Government, so “sex offender” equates anyone convicted of one of a hundred enumerated offenses with a murderous child molester. The affixing and disseminating of the label “sex offender” is not a neutral conveying of the fact of a prior conviction, but a denunciation.

The express purpose of disseminating this label is to warn the public and law enforcement that the individual is likely to commit a sex offense and should therefore be avoided and viewed with suspicion. Labeling a human being as dangerous for this purpose is not a regulatory measure like labeling a pack of cigarettes. It is a mark of community condemnation, which is the essence of punishment.

The affixing of moral culpability is what distinguishes punishment, however light, from civil sanctions, however onerous. See e.g., Kansas v. Hendricks supra (involuntary commitment not punishment where purpose is treatment of dangerous mental abnormality, not reproach for past criminal wrongdoing). Punishment is the deprivation of legal rights as an expression of social condemnation. It is “the judgment of community condemnation which accompanies and justifies its imposition.” It is the expression of “indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority himself or of those in whose name the punishment is imposed.” Doe v. Pataki, 120 F.3d at 1272. The retributive objective of punishment includes “community condemnation and the community’s emotional desire to punish the offender.” People v. Suitte, 90 A.D.2d 80, 84 (2nd Dept. 1982).

Even the Supreme Court acknowledged, albeit unwittingly, the retributive function of the Internet sex offender registry by likening it to a public sentencing proceeding. Smith v. Doe at 99. A sentencing is quintessentially the occasion for expressing community denunciation and indisputably punitive. Similarly, when the state posts a person’s photograph and identifying information under the label “sex offender” this is not a transmission of courthouse records but an expression of community condemnation.

The registration provisions serve the same deterrent purpose as any other form of post-release supervision: monitoring ex-offenders by requiring them to periodically report and keep the police informed of their whereabouts. The deterrent purpose is the same, regardless of whether registration is required quarterly in person or annually by mail. Failure to report may result in prison time, thereby serving the incapacitating purpose of punishment.

Although a statute may promote punitive purposes and still be “plainly more remedial than punitive,” that is not the case with SORA. cf. Smith v. Doe at 94. SORA has no remedial purpose distinguishable from that of the Penal Law: to “insure the public safety by preventing the commission of offenses through the deterrent influences of the sentences authorized. . . and the [offenders’] confinement when required in the interests of public protection.” P.L. § 1.05. SORA’s preamble, cited above, could just as well preface a statutory scheme of parole or post-release supervision.

Even assuming that a past conviction is public information readily obtainable at the courthouse, the information on the registry – details of the offense which may include additional allegations beyond those proved by the crime of conviction, conditions of parole, home and work address, complete with Google map – are not. The preamble recognizes that disseminating the registry is an invasion of privacy and justifies it by asserting the deterrent purpose of protecting the public from sexual assault by that person. This rationale is identical to that of all non-custodial punishment such as probation or parole, that permits “a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” Griffin v. Wisconsin, 438 U.S. 868, 874 (1987).

Another sign that the sanctions are not merely regulatory is that they are aimed at disabling every aspect of the registrant’s life. Unlike other statutes held to be regulatory despite their harsh effects, SORA does not merely impose a one-time sanction or debar persons from a single profession. Compare Hudson v. United States supra (barring defendant from banking profession not punitive); Ursery v. United States supra (forfeiture of land used to grow marijuana not punitive). As the District Court of New Jersey observed, the restrictions of “Megan’s Law” are not just a cloud but “an eclipse affecting every aspect of the registrants’ lives.” Artway v. New Jersey, 876 F.Supp. at 686.

Another factor undermining SORA’s purported regulatory purpose is the lack of empirical support for its premise that “sex offenders” are a distinct class of ex-offenders likely to commit sexual assaults. Unlike the Waterfront Act in De Veau, enacted after years of Congressional and state hearings, SORA was hastily enacted as a reaction to a shocking but atypical crime. Compare De Veau at 159-160.

The Legislature’s assumption that sex offenders have a high rate of recidivism was based on personal anecdotes and a single study cited by the Bill sponsor which even the Second Circuit noted was contradicted by other studies. Doe v. Pataki at 1266. The same DCJS website that disseminates the sex offender registry acknowledges that this assumption is a myth. The website also includes statistics showing that only 8% of SORA registrants in New York committed another sexual offense over an 8-year period, together with other studies concluding that “sexual recidivism rates vary by offender type and are lower than other types of crime.” The dissonance between the premise of the statute and the facts accepted by the very law enforcement agencies who implement it suggest that the purpose of SORA is more retributive than practical. Unlike the regulatory Kansas civil commitment statute, where involuntary confinement lasts no longer than the dangerous mental abnormality that triggered it, SORA has no provision for removal. Kansas v. Hendricks  at 364. The label of “sex offender” is “absolute and perpetual.” Cummings v. Missouri at 327.

A further sign that SORA is not regulatory is that, unlike ASORA, the procedures are not “distinctly civil.” Smith v. Doe at 96. SORA is located in the Corrections Law, which implements punishments. The risk level determination, registration and compliance procedures are all implemented by the criminal justice machinery: set in motion by a specialized parole board, prosecuted by the People, adjudicated by a criminal court judge and enforced by the police and DCJS. In sum, the text and history of SORA fails to show a clearly regulatory intent. The Mendoza-Martinez factors further demonstrate its punitive purpose and effects.

The Mendoza-Martinez Factors
Unlike ASORA, SORA indisputably creates affirmative disabilities and restraints. Cf. Smith v. Doe at 100. Even under the 1996 statute, the registration requirements were held to impose “a tangible burden” implicating constitutionally protected liberty interests. Even the non-Internet dissemination of the registry were found “likely to carry with it shame, humiliation, ostracism, loss of employment and decreased opportunities for employment, perhaps even physical violence, and a multitude of other adverse consequences.” Doe v. Pataki, 3 F.Supp.2d at 467 ; see also People v. David W., 95 N.Y.2d 130 (2000)(same).

As for whether the notification and registration requirements resemble traditional punishment and promote its aims, the imposing of post-custodial restrictions on offenders for the purpose of deterring them from committing new crimes and enabling law enforcement to keep track of them is a form of post-release supervision or parole.
On the other hand, publicly stigmatizing persons based on a past crime for the purpose of warning the public to avoid them has no history as a regulatory measure. As the Supreme Court recognized, even incarceration is not punishment without the stigma of criminal liability. Kansas v. Hendricks at 360.

SORA encompasses only persons convicted of a crime, thereby coming into play only upon a finding of scienter, “which is customarily an important element in distinguishing criminal from civil statutes.” Kansas v. Hendricks at 362.

As for whether the state asserts a regulatory purpose, it has already been shown that “protecting public safety” simply means deterring and incapacitating offenders. There is no independent regulatory purpose.

SORA is accordingly punitive. Imposing it on persons whose crimes were committed before its enactment violated the Ex Post Facto Clause. Imposing it on persons who have already been sentenced violates double jeopardy.

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