Doe v. Weld, Civ. A. No. 96-11968-PBS.

• Decision Date: 17 December 1996
• Docket Number: Civ. A. No. 96-11968-PBS.
• Parties: John DOE, Plaintiff, v. William F. WELD, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 425

954 F.Supp. 425

John DOE, Plaintiff, v. William F. WELD, et al., Defendants.

Civ. A. No. 96-11968-PBS.

United States District Court, D. Massachusetts.

December 17, 1996.

Dana A. Curhan, Thomas Hoopes, Boston, for plaintiff.

Loretta M. Smith, Boston, MA, for defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

This case challenges the constitutionality of the newly-enacted sex offender registry law as it applies to juveniles adjudicated delinquent prior to its enactment. The plaintiff is a nineteen year-old college student who, at the age of seventeen, pled guilty to four counts of indecent assault and battery on a child and was sentenced as a juvenile to four months probation. Plaintiff seeks an injunction and a declaration that the "Act Relative to Sex Offender Registration and Community Notification" ("The Act"), also known as "Megan's Law," is unconstitutional under the federal and state constitutions because it applies retroactively to juvenile sex offenders in violation of the Ex Post Facto, Bill of Attainder, Double Jeopardy and Due Process clauses, as well as the "cruel and unusual punishment" prohibition of the Eighth Amendment.

After a hearing, for the following reasons, this Court DENIES plaintiff's motion for a preliminary injunction.

II. BACKGROUND

A. The Legislation

On August 5, 1996, Massachusetts enacted "Megan's Law," Mass.G.L. c. 6, §§ 178C — 178O, and joined the forty-nine other states that have adopted legislation specifically designed to address both national and local concerns about repeat sex offenders. See, e.g., Ariz.Rev.Stat.Ann. §§ 13-3821 to -3825 (West 1994); Cal.Penal Code §§ 290 to 290.6 (West Supp.1995); Ga.Code Ann. § 42-9-44.1 (1995); Mich.Comp.Laws Ann. §§ 28.721 to .732 (West Supp.1995); see also Jacob Wetterling Crimes Against Children & Sexually Violent Offender Registration Program, 42 U.S.C. § 14071 (1994), as amended, 1996 (encouraging state legislation by conditioning law enforcement funds on the implementation of the prescribed sex offender registration program); Note, Prevention Versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders, 109 Harv.L.Rev. 1711, 1712-14 (1996) (describing the various laws that "convicted sex offender[s] today can expect to encounter" in most states). Although sex offender registration and community notification laws vary, Massachusetts's "Megan's Law" is similar to the registration schemes that other states have adopted. Compare Mass.G.L. c. 6, §§ 178C — 178O with Wash.Rev.Code Ann. § 9A.44130(2) (West Supp.1996) and N.J.Stat.Ann. §§ 2C:7-6 to -11 (West 1995).

The Act establishes: (1) a centralized, computerized registry of information regarding the state's sex offenders, and (2) a three-tiered system whereby registration information, including an offender's name, home and work addresses, personal characteristics, and photograph, may be distributed to the public. See Mass.G.L. c. 6, §§ 178D, 178K(2). The Act applies to any "sex offender," defined as "a person convicted of a sex offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense ... on or after August first, nineteen hundred and eighty-one." G.L. c. 6, § 178C.

1. Registration

The Act provides that, prior to October 1, 1996, all sex offenders must furnish the police departments where they reside with current data regarding their offense, date and place of birth, social security number, home and work addresses, eye and hair color, weight, height, and anything else "which may be useful in identifying the sex offender" or "in assessing the risk of the sex offender to reoffend." See Mass.G.L. c. 6, §§ 178E(h), 178D. Upon receiving such information, the police department transmits the registration data to the state's Criminal History Systems Board ("CHSB") which, in turn, forwards the data to "the police departments where the sex offender works and where the offense was committed and to the Federal Bureau of Investigation." G.L. c. 6, § 178E(h).

Registered sex offenders must "appear in person at least one time per year at the local police department to verify that the registration data on file remains true and accurate." G.L. c. 6, § 178F. In addition, offenders must sign and promptly return a verification form that is mailed annually to the listed address. Id. Any offender who intends to move must register in person with the police in the new area at least five days prior to establishing a new residence; any offender who changes jobs must "notify the police department where he resides in writing five days prior to establishing his new work address." G.L. c. 6, § 178E(e), 178(f).

The Act provides that a sex offender's obligation to maintain current and accurate registration information is to last for twenty years from the date of conviction or release (whichever is later); however, if the offender has committed a sex offense on more than one occasion, the duty to register persists for the rest of his life. See G.L. c. 6, § 178G. If a registered offender can provide clear and convincing evidence that he has not engaged in a sex crime for at least fifteen years and that he is "not likely to pose a threat to the safety of others," he may apply to the Board to have the duty to register terminated. G.L. c. 6, § 178G.

Knowing failure to register or to update registration data as required is a crime punishable "by imprisonment for not more than two and one-half years" and/or "by a fine of not more than one thousand dollars." G.L. c. 6, § 178H.

2. Public Dissemination

The Act also authorizes public disclosure of sex offender registration data. It establishes a Sex Offender Registry Board ("Board"), a subdivision of the CHSB, which is responsible for "determining the level of risk of reoffense of sex offenders," "assess[ing] the risk level of particular offenders," and "develop[ing] guidelines for use by city and town police departments in disseminating sex offender registry information." G.L. c. 6, § 178K(1). The Act "provide[s] for three levels of notification depending on the degree of the risk of reoffense by the sex offender." G.L. c. 6, § 178K(2). An offender with a low risk of reoffense as determined by the Board is given a "Level One" designation; a moderate risk offender is designated "Level Two"; a high risk offender is designated "Level Three." G.L. c. 6, § 178K(2). When ascertaining an offender's risk level, the Board is authorized to consider materials submitted by the offender, statements made by the victim, and a number of factors including "whether the sex offender was a juvenile when he committed the offense." G.L. c. 6, §§ 178K(e), (k), (1).

A person who requests sex offender registry information for Level One offenders must follow certain statutory requirements set forth in sections 1781 and J. See G.L. c. 6, § 178K(2)(a). Section 1781 provides that any adult, upon "the verification of his age and identity, shall receive at no cost from the board a report" which indicates whether an identified individual is a sex offender, the offense, and the date of conviction or adjudication. The section also provides that any "records of inquiry" will be kept confidential, and that the person making the inquiry must be warned of the criminal penalties for misusing the information.

Section 178J(a) sets forth the procedures and the specific circumstances under which a person may obtain registry information about a Level One offender. See § 178K(2)(a). It provides that a "person who requests sex offender registry information" must be eighteen years of age or older, must appear in person at the local police precinct and present proper identification, and must state that the registry information is for her "own protection or for the protection of a child" or other person for whom she has responsibility, care, or custody. The person must also complete and sign a "record of inquiry," referenced in section 1781, which includes the name and address of the inquirer, the person or geographic area or street that is the subject of the inquiry,¹ the reason for the inquiry, the date and time, and "a warning regarding the criminal penalties for use of sex offender registry information to commit a crime or to engage in illegal discrimination or harassment of an offender."² G.L. c. 6, § 178J(a). Upon the submission of a signed record of inquiry, the police are authorized to release a broader range of information than must be provided by the Board.³

An offender who is subject to Level One public disclosure as set forth in sections 1781 and 178J has no statutory right to administrative or judicial review of the risk level designation. See G.L. c. 6, § 178K(3).

Sex offenders who receive a Level Two or Three designation face a more aggressive system of public disclosure. "A level two community notification plan shall require the police department to notify organizations in the community which are likely to encounter the offender including, but not limited to, schools, day care centers, religious and youth organizations, and sports leagues," with information such as the offender's name, home and work addresses, the date and nature of the offense, the offender's age, sex, race, age, height, hair and eye color, and any available photograph. G.L. c. 6, § 178K(2)(b). Information regarding a Level Three offender is distributed not only to affected community organizations, but also to "individual members of the public which are likely to encounter the offender." G.L. c. 6, § 178K(2)(c). As with the Level One inquiries, "[a]ll notices to the community" regarding Level Two or Three offenders "shall include a warning regarding the criminal penalties for use of the sex offender registry information" in an illegal and improper way. G.L. c. 6, § 178K(2)(b), (c). Unlike Level One offenders, however, Level Two or Three offenders have the right "to challenge [their] risk designation"...