940 F.Supp. 603 (S.D.N.Y. 1996), 96 Civ. 1657, Doe v. Pataki

Docket Nº:96 Civ. 1657
Citation:940 F.Supp. 603
Party Name:Doe v. Pataki
Case Date:September 24, 1996
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 603

940 F.Supp. 603 (S.D.N.Y. 1996)

John DOE, Richard Roe and Samuel Poe, individually and on behalf of all other persons similarly situated, Plaintiffs,


Hon. George E. PATAKI, in his official capacity as Governor of the State of New York, et al., Defendants.

No. 96 Civ. 1657 (DC).

United States District Court, S.D. New York.

Sept. 24, 1996

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Robert M. Baum, Attorney-in-Charge, The Legal Aid Society, Criminal Defense Division by Thomas M. O'Brien, Susan L. Hendricks, Laura R. Johnson, New York City, Norman Siegel, Christopher Dunn, New York Civil Liberties Union Foundation, New York City, for Plaintiffs.

Dennis C. Vacco, Attorney General of the State of New York by Christine E. Morrison, Assistant Attorney General, New York City, for Defendants.

Mary Jo White, United States Attorney for the Southern District of New York by Daniel S. Alter, Assistant United States Attorney, New York City, for Amicus Curiae, United States of America.

Constantine & Partners by Eliot Spitzer, New York City, Dennis Saffran, American Alliance for Rights and Responsibilities, New York City, for Amici Curiae American Alliance for Rights & Responsibilities, Protecting Our Children, Justice for All, Parents of Murdered Children of New York State, and Take Back New York.


CHIN, District Judge.

In this case, plaintiffs challenge the constitutionality of the New York State Sex Offender Registration Act, N.Y.Correction Law §§ 168 to 168-v (McKinney Supp.1996) (the "Act"), as applied to individuals who committed their crimes before the Act took effect. I issued a preliminary injunction on March 21, 1996 enjoining retroactive application of the "public notification" provisions of the Act. Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y.1996). The parties have now filed cross-motions for summary judgment.

The principal issue presented is whether the Act increases the punishment for sex offenses after the fact. If so, the Act would violate the Ex Post Facto Clause of the United States Constitution if it were to be applied to individuals who committed their crimes before the Act took effect on January 21, 1996. If not, the Act could be applied retroactively without violating the Ex Post Facto Clause.

The provisions of the Act, commonly referred to as New York's "Megan's Law," are now well-known. The "registration" provisions require convicted sex offenders to register with law enforcement authorities after parole or release. The "public notification" provisions permit law enforcement authorities, in certain circumstances, to notify the public of the identity and whereabouts of registrants.

I hold that the public notification provisions of the Act constitute punishment and that they increase punishment after the fact. Hence, their retroactive application would violate the Ex Post Facto Clause.

The public notification provisions are quintessentially punitive in nature, for several reasons. First, although the legislature's stated intent in passing the Act was to protect, it is clear that the legislature also intended to punish sex offenders. In approving

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the Act, members of the New York State legislature referred to sex offenders as "depraved," "the lowest of the low," "animals," and "the human equivalent of toxic waste." (New York State Assembly Debate Minutes, June 28, 1995, at 360-61, 393, 417) ("Assembly Minutes"). One member flatly stated: "We are coming out to get them." ( Id. at 360).

Second, the design of the Act suggests that the public notification provisions are punitive in nature. The Act contains classic indicia of a punitive scheme: it is triggered by the commission of a crime; it provides for the sentencing judge to determine the level of notification; and it provides for the submission of victim impact statements. Moreover, the Act is excessive in its sweep, covering an overly broad group of offenses and individuals and permitting broad and virtually uncontrolled disclosure.

Third, history suggests that public notification is punitive in nature. Historically, branding and other public forms of shaming were used to punish wrongdoers and in egregious situations banishment was imposed. Public notification is the modern-day equivalent of branding and banishment. Moreover, banishment is precisely what at least some members of the New York legislature intended: one Assemblyman predicted, in stating his support for the Act, that it would force sex offenders "out of town, out of state." (Assembly Minutes at 388-89).

Finally, the effect of the Act is to punish. Public notification results in an affirmative disability or restraint on sex offenders and their families. It interferes with the ability of sex offenders to rehabilitate in such a way as to extend their sentence, thereby increasing their punishment. Notification also serves traditional goals of punishment: retribution, incapacitation, and deterrence.

Defendants (and others) argue that to the extent sex offenders suffer adverse consequences as a result of the Act's public notification provisions, they have only themselves to blame. That may be true, but this reasoning only underscores the punitive underpinning of the Act: because of their crimes, sex offenders deserve whatever they get.

Likewise, the Act is premised on the generalization that sex offenders will repeat their crimes. As one member of the New York State Assembly proclaimed: "once a pedophile, always a pedophile." (Assembly Minutes, at 383). A society, or a legislature, may have a right to make that generalization as a matter of social policy, but a statutory scheme built upon a presumption that an entire group of individuals is incapable of rehabilitation is fundamentally punitive in nature.

The vision of a seven-year old child being raped and murdered by a twice-convicted sex offender who lived across the street, unbeknownst to the child's family, is a haunting one. With that vision in mind, one could justify, on an emotional level, virtually any punishment and virtually any punishment could be characterized as a mere protective or regulatory measure. Indeed, any balancing of the rights of children and others to be free from rape, murder, and sexual abuse against the rights of those convicted of committing those crimes will always result in a decisive tipping of the scales of justice in favor of the former.

Our Constitution, however, does not call for such a balancing in these circumstances. To the contrary, the Ex Post Facto Clause forbids all laws that increase punishment after the fact; there is no exception for laws that are based on good intentions or that seek to protect our children. If a law increases punishment, it cannot be applied retroactively even if it would also prevent further acts of violence and abuse.

The registration provisions of the Act, however, do not constitute punishment, for they do not result in the same excesses or adverse consequences that follow public notification. Hence, their retroactive application would not violate the Ex Post Facto Clause.

Accordingly, summary judgment is granted in favor of plaintiffs with respect to the notification provisions of the Act and in favor of defendants with respect to the registration provisions of the Act.


A. The Act

1. Background

The Act was passed on July 25, 1995 and took effect on January 21, 1996. Its preamble

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contains the following statement of the legislature's findings and intent:

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 ... 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 preamble goes on to state that "[t]he system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct" and "will bring the state into compliance with the federal crime control act...." 1

All 50 states have enacted sex offender registration laws, many of which also provide for public notification. See People v. Ross, 169 Misc.2d 308, 646 N.Y.S.2d 249, 250 n. 1 (N.Y.Sup.Ct.N.Y.Co.1996) (citing statutes). The statutes resulted from growing public concern over the substantial threats presented by sex offenders and a belief that sex offenders as a group are more likely to repeat their crimes. In enacting these laws, legislatures have articulated two goals: (i) enhancing law enforcement authorities' ability to fight sex crimes and (ii) protecting communities, and particularly children, by notifying them of the presence of individuals who, because of their history of committing sex crimes, may present a danger.

Defendants have submitted statistics showing that approximately 133,000 women and girls age 12 and older are victims of rape or attempted rape in the United States each year. (Def. Mem. at 2-3). Justice Department statistics for 1992 show that nationwide 17,000 girls under age 12 were raped. ( Id. at 3). Defendants cite studies that delineate the devastating psychological impact that sex offenses have on their victims. ( Id. at 3-4). Defendants' statistics also show high rates of "recidivism among sex offenders, particularly among those who prey upon children" and that "[s]ex offenders are significantly more likely than other repeat offenders to reoffend with sex offenses or other violent crimes." ( Id. at 4). As compared to other criminals,...

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