Roe v. Office of Adult Probation

• Decision Date: 08 September 1997
• Docket Number: D,Nos. 1579,s. 1579
• Citation: 125 F.3d 47
• Parties: Robert ROE, Plaintiff-Appellee, v. OFFICE OF ADULT PROBATION; Robert Boscoe, Director of Office of Adult Probation; Ronald Cormier, Probation Officer; Michael Santese; and Donald Popillo, Defendants-Appellants. ocket 96-9157.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

125 F.3d 47

Robert ROE, Plaintiff-Appellee, v. OFFICE OF ADULT PROBATION; Robert Boscoe, Director of Office of Adult Probation; Ronald Cormier Probation Officer; Michael Santese and Donald Popillo Defendants-Appellants.

Nos. 1579, Docket 96-9157.

United States Court of Appeals, Second Circuit.

Argued March 25, 1997.

Decided Sept. 8, 1997.

Richard Blumenthal, Atty. Gen., Hartford, CT (Stephen J. O'Neill, Margaret Q. Chapple, Gregory T. D'Auria, Asst. Attys. Gen., Hartford, CT, on brief), for defendants-appellants.

Eliot B. Gersten, Hartford, CT (Aviva Cuyler, Gersten & Clifford, Hartford, CT, on the brief), for plaintiff-appellee.

(Frank W. Hunger, Asst. Atty. Gen., Washington, DC; Christopher F. Droney, U.S. Atty., New Haven, CT; Leonard Schaitman, Wendy M. Keats, Dept. of Justice, Washington, DC, submitted a brief for amicus curiae United States of America).

Before: NEWMAN, MINER and GODBOLD, ^* Circuit Judges.

JON O. NEWMAN Circuit Judge.

In Doe v. Pataki, 120 F.3d 1263 (2d Cir.1997), we upheld, as against a challenge under the Ex Post Facto Clause, the constitutionality of the registration and notification provisions of New York's version of "Megan's Law," which requires varying degrees of community notification about released sex offenders. ¹ On this appeal we consider a similar challenge to a recently adopted notification policy of Connecticut's Office of Adult Probation ("OAP"). The specific issue is whether the OAP policy imposes "punishment" for purposes of the Ex Post Facto Clause, in which event it could not be applied to probationers who committed crimes before adoption of the policy. This issue arises on an appeal by the OAP and several of its officials from the August 27, 1996, order of the District Court for the District of Connecticut (Dominic J. Squatrito, Judge), preliminarily enjoining the defendants from applying the OAP's Sex Offender Notification Policy ("the Policy") to plaintiff Robert Roe, who was convicted of several sex crimes in 1991. See Roe v. Office of Adult Probation, 938 F.Supp. 1080 (D.Conn.1996). In light of our recent decision in Doe v. Pataki, supra, we rule that notification pursuant to the Policy does not constitute punishment for purposes of ex post facto analysis. We therefore reverse the District Court's order and remand for further proceedings on Roe's remaining claims.

Background

Unlike most recent cases involving ex post facto challenges to community notification laws, the target of attack in this case is not a state statute, but an internal policy of a state agency. Nonetheless, because the OAP Policy is somewhat intertwined with, and perhaps partially authorized by, several recently enacted Connecticut statutes, we begin by examining the relevant legislation.

1. Connecticut's Registration and Notification Scheme

In response to similar concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders, which have prompted the enactment of sex offender registration and notification statutes around the country, Connecticut has recently enacted its own version of "Megan's Law." The first step occurred in 1994, when the state legislature enacted a registration scheme for convicted sex offenders. See Act of June 9, 1994 ("1994 Act"), P.A. No. 94-246, 1994 Conn. Legis. Serv. 974 (West 1994). The 1994 Act applied only to individuals convicted after January 1, 1995, of "sexual assault," which includes the following seven offenses: aggravated sexual assault in the first degree, sexual assault in the first degree, sexual assault in the second degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, sexual assault in a spousal or cohabitating relationship, and injury or risk of injury to a minor. See Conn. Gen.Stat. Ann. § 54-102r(a)(1)(A), (b), (c). ² The law required these offenders to provide certain registration information to law enforcement officials, including name, address, ³ social security number, information about the crime of conviction, and a "complete description of the person including photograph and fingerprints." Id. § 54-102r(e). The 1994 Act, in addition to requiring registration, provided for minimal notification of information. Registration information could be disclosed only to "the custodian of such records or a sworn law enforcement officer, in the performance of his duties." P.A. No. 94-246, § 12(c).

In 1995, the Connecticut legislature amended section 54-102r to broaden notification significantly. See Act of May 30, 1995 ("1995 Act"), P.A. No. 95-142, 1995 Conn. Legis. Serv. 312 (West 1995). Section 10(g) of the 1995 Act appeared to permit (by exempting from a disclosure prohibition) the disclosure of registration information "to any specific person if such disclosure is deemed necessary by the chief of police of the police department or resident state trooper of the municipality to protect said person from any person subject to" registration. Id. § 10(g) (codified at Conn. Gen.Stat. Ann. § 54-102r(g)); see also id. (providing that any person disclosing registration information in violation of this section "shall be guilty of a class C misdemeanor"). Like the registration statute enacted in 1994, the 1995 Act, which became effective on October 1, 1995, applied only to persons convicted of "sexual assault" (as that term is defined in subsection 54-102r(a)(1) of the Connecticut General Statutes) on or after January 1, 1995. See id. § 10(a)-(c) (codified at Conn. Gen.Stat. Ann. § 54-102r(a)-(c)). ⁴ Thus, the 1995 Act had a limited retroactive effect--it applied to persons who committed sex crimes at any time prior to October 1, 1995 (the effective date of the 1995 Act), if they were convicted after January 1, 1995.

In 1997, after the District Court's decision in this case, the Connecticut legislature amended section 54-102r in two respects. See Act of June 26, 1997 ("the 1997 Act"), P.A. No. 97-183, 1997 Conn. Legis. Serv. 377 (West 1997). First, the 1997 Act deleted the January 1, 1995, date, which had limited the coverage of the registration requirements of section 54-102r(b), (c), thereby requiring registration regardless of the date of conviction. Second, the 1997 Act deleted the disclosure prohibition of section 54-102r(g), thereby arguably authorizing unlimited disclosure. This deletion also eliminated the provision of section 54-102r(g) making unauthorized disclosure a misdemeanor.

Especially relevant to the present dispute is the 1995 Act's provisions concerning the role and duty of probation officers. Section 6(b) provides that any sex offender sentenced to probation must "immediately notify his ... probation officer ... whenever he changes his residence address," id. § 6(b) (codified at Conn. Gen.Stat. Ann. § 54-102s(b)), and requires the probation officer so informed to "notify the chief of police of the police department or resident state trooper for the municipality of the new address of the ... probationer and any other law enforcement official he deems appropriate." Id. Section 6(c) of the 1995 Act then arguably authorizes broad disclosure by providing:

Nothing in this section or section 54-102r of the general statutes, as amended by section 10 of this act, shall be construed to prohibit a ... probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the ... probationer to any person whenever he deems such disclosure to be appropriate.

Id. § 6(c) (codified at Conn. Gen.Stat. Ann. § 54-102s(c)) (emphasis added).

2. The OAP Policy

Prior to 1995, the OAP had no policy or practice of notifying the general public of the criminal record of a probationer under its supervision. In the fall of 1995, the OAP promulgated a policy on sex offender notification procedures. See OAP Sex Offender Notification Policy (1995) ("the Policy"). The application of the Policy to the plaintiff is the focus of the pending lawsuit.

The Policy became effective on October 1, 1995. See Memorandum from Michael E. Santese to Chief Probation Officers (Sept. 29, 1995). Its stated objective is "to enhance public safety and awareness." Policy at 1. Neither the coverage nor the operation of the Policy is entirely clear. In terms, the Policy applies to three categories of offenders under the supervision of the OAP: (1) persons convicted after January 1, 1995, of "sexual assault" (as defined by subsection 54-102r(a)(1)(A) of the Connecticut General Statutes), (2) persons convicted of "similar offenses in other states and transferred to Connecticut via the Interstate Compact," and (3) "[a]ny other person[ ] ... determined through clinical assessment to be a high risk sex offender," id.

The first category is explicitly limited to those convicted after January 1, 1995. Whether the second ⁵ and third categories were intended to be so limited is not clear. What is clear, and relevant to this case, is that the OAP has interpreted the third category to apply to probationers without regard to their dates of conviction. See Memorandum of Michael Santese to Robert Bosco[e], Nov. 20, 1995. Using that interpretation, the OAP has applied the third category to the plaintiff in this case, whose conviction occurred prior to January 1, 1995. Plaintiff does not dispute this interpretation of the Policy; indeed, it is that interpretation that creates his ex post facto challenge.

The Policy prescribes two levels of notification, purportedly correlated to the offender's risk of re-offense. The first level applies to all probationers meeting only the minimum criterion--conviction of a listed sex offense. Policy at 3. As to such probationers, the OAP will disseminate various information concerning the offender, including his name, address, physical description, crime of conviction, sentencing, and special conditions of probation. Id. The information will be disclosed to specified members of...