120 F.3d 1263 (2nd Cir. 1997), 1237, Doe v. Pataki

Docket Nº:1237, 1238, Docket 96-6249, 96-6269.
Citation:120 F.3d 1263
Party Name:John DOE, Richard Roe and Samuel Poe, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. George PATAKI, in his official capacity as Governor of the State of New York; Paul Shechtman, In His Official Capacity As Commissioner Of The New York State Department Of Criminal Justice Services; The
Case Date:August 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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120 F.3d 1263 (2nd Cir. 1997)

John DOE, Richard Roe and Samuel Poe, individually and on

behalf of all other persons similarly situated,

Plaintiffs-Appellees-Cross-Appellants,

v.

George PATAKI, in his official capacity as Governor of the

State of New York; Paul Shechtman, In His Official Capacity

As Commissioner Of The New York State Department Of Criminal

Justice Services; The New York State Department Of Criminal

Justice Services; Brion Travis, In His Official Capacity As

Chairman Of The New York State Board Of Parole; The New

York State Division Of Parole; George Sanchez, In His

Official Capacity As Commissioner Of The New York State

Division Of Probation; The New York State Division Of

Probation; Elizabeth M. Devane, In Her Official Capacity As

Chairperson Of The New York State Board Of Examiners Of Sex

Offenders; The New York State Board Of Examiners Of Sex

Offenders, Defendants-Appellants-Cross-Appellees.

Nos. 1237, 1238, Docket 96-6249, 96-6269.

United States Court of Appeals, Second Circuit

August 22, 1997

Argued Jan. 6, 1997.

Order Amending Decision on Denial of Reconsideration Sept. 25, 1997.

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[Copyrighted Material Omitted]

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Christine E. Morrison, Asst. Atty. Gen., New York City (Dennis C. Vacco, N.Y. State Atty. Gen., Thomas D. Hughes, Asst. Solicitor Gen., Andrea Oser, Asst. Atty. Gen., New York City, on the brief), for Defendants-Appellants-Cross-Appellees.

Thomas M. O'Brien, New York City (Susan L. Hendricks, Laura R. Johnson, The Legal Aid Society, New York City; Norman Siegel, Christopher Dunn, N.Y. Civil Liberties Union Foundation, New York City, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

(Daniel S. Alter, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Gideon A. Schor, Asst. U.S. Atty., New York City, on the brief), for amicus curiae United States of America).

(Eliot L. Spitzer, Constantine & Partners, New York City; Dennis F. Saffran, New York City; Barry M. Benjamin, New York City, submitted a brief for amici curiae American Alliance for Rights and Responsibilities, Protecting Our Children, Justice for All, Parents of Murdered Children of New York State, and Take Back New York).

(Daniel L. Feldman, Brooklyn, NY, submitted a brief for amicus curiae Daniel L. Feldman, Member of the New York State Assembly).

Before FEINBERG, NEWMAN, and McLAUGHLIN, Circuit Judges.

JON. O. NEWMAN, Circuit Judge.

This appeal concerns the constitutionality of New York's version of "Megan's Law." 1 The statute requires sex offenders, after serving their sentences, to register with law enforcement officials, and provides for various degrees of public notification of the identity and address of these offenders. The specific issue is whether the statute inflicts "punishment," in which event the Ex Post Facto Clause would prohibit its application to those who committed their offenses prior to enactment of the statute.

The three plaintiffs, proceeding under pseudonyms, effectively represent all others similarly subject to the retroactive application of the registration and public notification provisions of New York's Sex Offender Registration Act ("SORA" or "the Act"), N.Y. Correct. Law §§ 168-168v (McKinney Supp.1997). 2 They challenged the Act on ex post facto and other constitutional and statutory grounds. On cross-motions for summary judgment by the plaintiffs and the defendants--the Governor of New York and other state officials and agencies responsible for the implementation and operation of the SORA--the District Court for the Southern District of New York (Denny Chin, Judge) upheld retroactive application of the Act's registration requirement, but ruled that similar application of the Act's community notification provisions constituted "punishment" in violation of the Ex Post Facto Clause. See Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y.1996) ("Doe v. Pataki II "). Judge Chin permanently enjoined enforcement of the notification provisions of the Act against persons whose crimes occurred before January 21, 1996, the effective date of the Act.

Both parties appeal from the District Court's judgment, entered on September 26, 1996. Although the question is not free from doubt, we conclude that neither the registration nor the notification provisions of the Act constitute "punishment" for purposes of the Ex Post Facto Clause, and that both sets of provisions may be imposed upon offenders convicted before the Act's effective date. We therefore affirm in part, reverse in part, and

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remand for further consideration of plaintiffs' remaining claims.

Background

The seriousness of the harm that sex offenders' actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct. Studies have shown that sex crimes are widespread, see, e.g., Brief of Amicus Curiae United States at 4 (citing Bureau of Justice Statistics, U.S. Dept. of Justice, Fact Sheet, National Crime Victim Survey Redesign (Oct. 30, 1994) (table) (312,000 rapes and attempted rapes and 173,000 other sexual assaults in 1993)), and that their impact on both the victim and society as a whole is devastating, see, e.g., id. at 5-6 (citing John Briere & Marsha Runtz, Childhood Sexual Abuse: Long-Term Sequelae and Implications for Psychological Assessment, 8 J. Interpersonal Violence 312, 324 (Sept.1993) (noting that molested children are likely to develop severe psychosocial problems) and Alphie Kohn, Shattered Innocence, Psychology Today, Feb. 1987, at 54, 58 (noting that sexually abused boys are more likely than non-abused boys to become sex offenders themselves, and that sexually abused girls are more likely than non-abused girls to have children who are abused)).

Some studies have also demonstrated that, as a group, convicted sex offenders are much more likely than other offenders to commit additional sex crimes. See, e.g., id. at 8-9 (citing studies reporting that rapists repeat their offenses at rates as high as 35%). Although other studies have reported that sex offenders as a category do not have a higher rate of recidivism than other categories of offenders, see generally Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 Cal. L.Rev. 885, 893-98 (1995), the plaintiffs did not challenge the defendants' and the amici 's recidivism statistics in the District Court, which accepted them as true for the purpose of resolving the parties' cross-motions for summary judgment. Pataki II, 940 F.Supp. at 606. We therefore also accept the validity of these figures on this appeal.

I. The New York Statute

New York's version of "Megan's Law," the SORA, was passed on July 25, 1995, and became effective on January 21, 1996. It requires individuals convicted of certain listed sex offenses to register with law enforcement officials, and it authorizes those officials, in some instances, to notify the public of, or provide the public with access to, the identity, whereabouts, and background of registrants. The legislature articulated two goals served by the SORA: (1) protecting members of the community, particularly their children, by notifying them of the presence of individuals in their midst who may present a danger, and (2) enhancing law enforcement authorities' ability to investigate and prosecute future sex crimes.

The Act applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose crimes were committed prior to the effective date. The three plaintiffs in this case committed their sex crimes prior to this date, but are nonetheless subject to its requirements. 3 The plaintiffs claim that the Act, by forcing them to register and by providing for notification to the community of their background and whereabouts, increases the amount of "punishment" that was, or could have been, imposed upon them at the time of their offense, thereby violating the Ex Post Facto Clause. To resolve this claim, we begin by examining the SORA in detail.

A. Persons Covered by the Act

All convicted "sex offenders," as defined under the Act, are subject to its requirements. The category of sex offenders includes

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any person who is convicted of a "sex offense," N.Y. Correct. Law § 168-a(2), or a "sexually violent offense," id. § 168-a(3). See id. § 168-a(1). "Sex offenses" include, for example, rape in the second or third degree, sodomy in the second or third degree, sexual abuse in the second degree, and attempts. See id. § 168-a(2). "Sexually violent offenses" include, for example, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and attempts. See id. § 168-a(3). These two categories, including attempts, encompass 36 offenses, some of which do not require proof of sexual contact, see, e.g., id. § 168-a(2)(a) (kidnapping or unlawful imprisonment of victim under age of seventeen), and seven of which are misdemeanors. First time offenders are included within the coverage of the Act.

B. Registration

Any person convicted of a sex offense or a sexually violent offense must register with the Division of Criminal Justice Services ("DCJS") as a sex offender within ten days of his discharge, release, or parole. See id. § 168-f(1). 4 To register, sex offenders must provide such identifying information as name, date of birth, sex, race, height, weight, eye color, driver's license number, and home address. They must also...

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