Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional

          On July 25, 2008, the Alaska Supreme Court declared Alaska's Sex Offender Registration Act unconstitutional.  In a blog that I posted on this website on June 5, 2008 entitled "Sex Offender Registration:  Is It Punishment?," I observed that "[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a 'civil, nonpunitive regime.' " I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting).

          It appears that the Alaska Supreme Court shares my view because it recently declared Alaska's Sex Offender Registration Act ("ASORA") unconstitutional in the case of John Doe v. State of Alaska.  In John Doe, Alaska's High Court stated in relevant part that:

          We first ask “[w]hether the sanction involves an affirmative disability or
restraint.”  The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.”

          But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].”  First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution.  The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive.  Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years.  All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day.  As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.”

          Second, we agree with the conclusion of Justice Ginsburg, also dissenting in Smith, that ASORA “exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.”  In the decision reversed in Smith, the Ninth Circuit observed that “[b]y posting [registrants’] names, addresses, and employer addresses on the internet, the Act subjects [registrants] to community obloquy and scorn that damage them personally and professionally.”  The Ninth Circuit observed that the practical effect of this dissemination is that it leaves open the possibility that the registrant will be denied employment and housing opportunities as a result of community hostility.  As Justice Souter noted in concurring in Smith, “there is significant evidence of onerous practical effects of being listed on a sex offender registry.”  Outside Alaska, there have been reports of incidents of suicide by and vigilantism against offenders on state registries.

          We also disagree with the Supreme Court’s conclusion in Smith that the obligations ASORA imposes are less harsh than the occupational debarment which the Court has held to be non-punitive.  The Supreme Court has upheld the constitutionality of post-conduct professional sanctions that included the prohibition of further participation in the banking industry and revocation of medical licenses.  A comparable bar for sex offenders who pose a risk to children might be employment in places frequented by children. But the practical effects here can predictably extend to all employment opportunities as well as to all other non-employment aspects of life, including housing opportunities. There are published reports that offenders are sometimes subjected to protests and group actions designed to force them out of their jobs and homes.  We agree that “[t]he practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment.”

          I would suggest that anyone interested in the subject of sex offender registration laws read the John Doe opinion in its entirety because of its well-reasoned approach to a very emotionally-charged issue.

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