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Doe v. State, Department of Public Safety

Supreme Court of Alaska

June 14, 2019

JOHN DOE, Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, Appellee.

          Appeal from the Superior Court No. 3 AN-16-05027 CI of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge.

          Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Appellant.

          John J. Novak, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Bolger, Chief Justice, Stowers, Maassen, Carney, Justices, and Matthews, Senior Justice. [*] [Winfree, Justice, not participating.]

          OPINION

          MATTHEWS, SENIOR JUSTICE

         I. INTRODUCTION

         This appeal presents two questions concerning the Alaska Sexual Offender Registration Act (ASORA).[1] The first is whether ASORA's registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASORA violates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA's registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         In 2000 John Doe was convicted of aggravated sexual battery in Virginia.[2] He was sentenced to five years imprisonment, with all time suspended, and a five-year term of probation. Under Virginia law Doe was required to register as a sex offender.[3] Doe moved to Alaska around the first of January 2003. On January 6, 2003, he registered as a sex offender. On April 11, 2003, the Department of Public Safety (DPS) wrote Doe indicating that he had to register annually in January of each year. He did so in 2004 and 2005. On February 4, 2005, DPS wrote Doe stating that he was required to register quarterly, for life. DPS noted that Doe's Virginia conviction "has essentially the same elements as sexual assault [first] degree (AS 11.41.410), which is an aggravated offense that requires quarterly verification of your sex offender registration information." Doe did not comply with this new requirement and has not registered since January of 2005. In 2007, Doe was convicted of second degree failure to register as a sex offender.

         In 2016 Doe filed suit requesting "[a] declaratory judgment which declares that the Alaska Department of Public Safety lacks jurisdiction to impose the ASORA upon the plaintiff, that the ASORA violates plaintiff s substantive due process rights and that the Department's appeal procedures are inadequate and deny procedural due process." He also sought an injunction enjoining enforcement of ASORA against him. Doe and the State filed cross-motions for summary judgment. After briefing and oral argument, the superior court entered an order granting the State's motion and denying Doe's. The superior court entered a final judgment in accordance with its summary judgment ruling and Doe filed the current appeal.

         III. STANDARD OF REVIEW

         This case involves questions of law. We review such questions de novo, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy."[4]

         IV. DISCUSSION

         A. ASORA

         ASORA requires sex offenders to register with the Department of Corrections, the Troopers, or the local police within 30 days before their release from incarceration or within one day following conviction if their sentence does not include jail time.[5] A "sex offender" is a person who has been convicted of specified crimes that vary widely in severity.[6] Covered crimes include: murder in the course of a sexual offense;[7] child kidnapping;[8] forcible rape and rape of a child;[9] lesser degrees of sexual assault and sexual abuse of a minor, [10] including attempts;[11] online enticement and unlawful exploitation of a minor;[12] some types of indecent exposure;[13] distribution or possession of child pornography and distribution of indecent material to minors;[14] sex trafficking prostitutes under 20 years of age;[15] and patronizing a prostitute under 18 years of age.[16] Some of these crimes encompass consensual sexual acts between adolescents separated by as little as three years of age, [17] and others encompass "sexting" where sometimes no age difference is required.[18]

         All registrants must disclose their name, address, place of employment, date of birth, information about their conviction, aliases, driver's license number, information about the vehicles they have access to, any identifying physical features, anticipated address changes, electronic addresses, and information about psychological treatment received.[19] Registrants are photographed and fingerprinted.[20] They must periodically reregister and update their information: those convicted of multiple or aggravated sex offenses must re-register quarterly; others must re-register annually.[21] All registration forms must be sworn to before a person authorized to administer oaths.[22] A registrant who changes residences or electronic addresses must give notice within one working day.[23]

         ASORA requires DPS to maintain a central registry of sex offenders that contains the information obtained under ASORA.[24] Public access is authorized to offenders' names, aliases, dates of birth, addresses, photographs, physical descriptions, motor vehicle information, places of employment, public information about their convictions and sentences, and whether the offender is in compliance with ASORA or cannot be located.[25] DPS posts this information on the internet for public viewing.[26] A photograph of each registrant appears under the caption "Sex Offender/Child Kidnapper Registry Entry Detail" followed by the registrant's information described above.[27]

         The legislature made the following findings when enacting ASORA:

(1) [S]ex offenders pose a high risk of reoffending after release from custody;
(2) protecting the public from sex offenders is a primary governmental interest;
(3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and
(4) release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.[28]

         All sex offenders must register at least every year for 15 years, [29] while repeat offenders or offenders guilty of one "aggravated" offense - generally any sex offense more serious than sexual assault in the second degree or sexual abuse of a minor in the second degree[30] - must register quarterly for life.[31] People who have been convicted of crimes under similar laws in other jurisdictions are also sex offenders under ASORA, [32] and they must register as such by the next working day of becoming physically present in the state.[33]

         ASORA's provisions require Doe to register and re-register every three months for the rest of his life as long as he remains in Alaska.[34]

         B. Jurisdiction

         Doe argues (1) that "Alaska lacks jurisdiction to impose punitive provisions upon a person whose acts were fully consummated outside of its jurisdiction," (2) that ASORA's registration requirements are punitive, and (3) that Alaska therefore lacks jurisdiction to impose ASORA's requirements on out-of-state offenders. This argument is logical in form, but its validity depends on whether its premises are correct.

         The parties mainly focus on the second premise, disputing whether ASORA's requirements are punitive. Doe argues that they are punitive based on our 2008 decision in Doe v. State (Doe 08).[35]

         In Doe 08 we held that the application of ASORA's registration requirements to an offender who was convicted of sex offenses and sentenced nine years before ASORA's effective date violated the ex post facto clause of article I, section 15 of the Alaska Constitution.[36] The critical question was "whether ASORA imposes additional punishment on individuals, like Doe, who committed their crimes before ASORA became effective."[37] To answer this question we employed a two-part test, called the "intent-effects" test.[38] First, we ask whether the legislature intended the law in question to be civil and non-punitive, and thus merely regulatory, or a punishment.[39] If the legislative purpose is found to be "not punishment but regulation," the second part of the test requires an inquiry as to "whether the effects of [the] regulation are so punitive" that we must conclude that the statute is punitive in nature.[40]

         In Doe 08 we found it unnecessary to address the first step of the intent-effects test because, regardless of the legislature's intent, we found that the effects of ASORA were primarily punitive and therefore concluded that ASORA could not be applied to offenders who committed their crimes before the law's effective date.[41]

         In deciding whether the effects of ASORA were primarily regulatory or punitive, we analyzed seven factors:

(1) "[w]hether the sanction involves an affirmative disability or restraint";
(2) "whether it has historically been regarded as a punishment";
(3) "whether it comes into play only on a finding of scienter";
(4) "whether its operation will promote the traditional aims of punishment - retribution and deterrence";
(5) "whether the behavior to which it applies is already a crime";
(6) whether an alternative purpose to which it may rationally be connected is assignable for it"; and
(7) "whether it appears excessive in relation to the alternative purpose assigned."[42]

         The State argues that many of the seven factors we relied on in Doe 08 do not indicate a punitive effect here because they were fully avoidable if Doe had chosen not to move to Alaska. The State also argues that some of the factors point to regulatory effects on other grounds. As to the scienter factor, the State asserts that this is absent because no finding of knowledge of wrongfulness is required to impose a duty to register on an out-of-state offender. Simply moving to the state is the triggering act.[43] Further, the State argues, traditional aims of punishment are absent because the State has no interest in punishing out-of-state offenders; rather, the State's interest lies in tracking sex offenders and informing the public about them. Similarly, the factor that asks whether the behavior the statute covers is already a crime comes out differently, according to the State, because the relevant behavior is noncriminal-again, merely moving to the state.

         The State also contends that a regulatory policy interest is present here that was not present in Doe 08: requiring out-of-state offenders to register "ensures that Alaska does not become a safe haven for convicted sex offenders."

         Summing up, the State argues "there are many purposes and effects of ASORA, some punitive and some non-punitiveConsideration of the seven [Doe 08] factors and other relevant considerations demonstrate the non-punitive, regulatory purposes and effects of ASORA override any punitive effects the registration requirement may have in this case."[44]

         While some of the State's arguments are plausible, we find it unnecessary to rule on them because we conclude that the first premise of Doe's argument is invalid. Doe contends that the State lacks jurisdiction to impose ASORA's registration requirements on out-of-state offenders who are present in the state because the requirements are sufficiently punitive to activate the Alaska constitutional prohibition on ex post facto laws. However, this prohibition only bars application of ASORA to offenders convicted in Alaska before ASORA's effective date.[45]

         ASORA's requirements are both punitive and regulatory.[46] We are not aware of any authority that suggests that out-of-state offenders who move to the state should not be subject to them. Doe relies on cases that hold that a state cannot prosecute criminal acts that occur outside a state's boundaries unless such acts produce adverse effects within the state.[47] These cases are inapposite because they deal with the jurisdiction to prosecute criminal offenses committed outside a state.[48] By contrast, the present case involves not the prosecution of offenders, but only their duty to register once they are convicted - and only when they are present in the state.[49] The situations are not legally comparable because in the cases Doe cited, the State has no legitimate interest in prosecution, whereas the State does have a legitimate interest-public safety - with respect to registration for sex offenders.

         Doe also relies on State Farm Mutual Automobile Insurance Co. v. Campbell.[50] In State Farm the United States Supreme Court held that a civil defendant's Fourteenth Amendment right to due process was violated by a state court's $ 145 million punitive damages award where the compensatory damages were only $ 1 million.[51] The Court relied primarily on the fact that at trial the plaintiff offered substantial evidence of the defendant's out-of-state conduct in other transactions, seemingly transforming the case into "a platform to expose, and punish, the perceived deficiencies of [the defendant's] operations throughout the country."[52] The Court explained that "as a general rule, ... a State [does not] have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction."[53] The Court was also concerned that "much of the out-of-state conduct was lawful where it occurred"[54] and that punishing a defendant for purported misconduct not involving the plaintiff "creates the possibility of multiple punitive damages awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains."[55]

         Requiring a sex offender with an out-of-state conviction to register under ASORA is different from assessing punitive damages against a defendant for out-of-state conduct against third parties. First, the State does have a legitimate public safety concern in requiring out-of-state offenders who now reside in the state to register. Second, there is no concern that a sex offender's conduct was lawful where it occurred - to the contrary, by definition it resulted in a criminal conviction. Third, the Court's concern about multiple damages awards for the same conduct has no application: being forced to register as a sex offender in multiple states for the same offense is not like being assessed multiple money judgments for the same conduct.

         We conclude that Alaska is not barred by lack of jurisdiction from requiring out-of-state offenders who are present in the state from registering under ASORA.

         C. Due Process

         1. The parties' arguments

         Doe's second argument is that ASORA violates the due process clause of the Alaska Constitution.[56] In particular, he contends that ASORA infringes on a number of constitutionally protected rights, including: the right to integrate into society, the right to privacy, the right to be let alone, and the right to pursue employment. Doe contends that these rights are fundamental and that their infringement can only be justified if the State has a compelling interest and uses the least restrictive means available to vindicate that interest. He argues that there is no compelling interest justifying registration if an offender does not present a danger to the public, and that ASORA is deficient because it "provides no mechanism whereby a registrant can be relieved of the requirement if they prove they do not present a threat to the public." Doe also argues that even if there exists a compelling state interest, ASORA is unconstitutional because it fails the least restrictive means test. To satisfy that test, he contends, ASORA should contain procedures through which a rehabilitated offender may escape its requirements, as well as procedures to "calibrate the extent of public notification, if any, to a sex offender's currently assigned dangerousness."

         The State responds that ASORA does not violate substantive due process. In particular, the State disputes that ASORA infringes any fundamental rights and that therefore the "compelling interest/least restrictive means" test does not apply. Instead, the State argues for a rational basis test, which ASORA would readily pass because the statute "provides, in a usable form, the information that parents and others need to protect themselves and their children from convicted sex offenders."[57] The State also argues that even if ASORA infringes a fundamental right, the State's interests are compelling and there is no less restrictive means available to protect them.[58]

         2. Substantive due process

         The due process clause of the Alaska Constitution provides: "No person shall be deprived of life, liberty, or property without due process of law."[59] This clause requires that adequate and fair procedures be employed when state action threatens protected life, liberty, or property interests.[60] This is procedural due process. It also may bar state action that infringes such interests in the absence of a sufficient government reason making procedures irrelevant.[61] This is substantive due process. Substantive due process is a doctrine that is meant to guard against unfair, irrational, or arbitrary state conduct that "shock[s] the universal sense of justice."[62]

         The distinction between procedural and substantive due process is illustrated by Connecticut Department of Public Safety v. Doe, a case involving Connecticut's sex offender registration statute.[63] A procedural due process challenge was made to Connecticut's offense-based registration system which, like Alaska's, [64] required registration based on an individual's prior conviction rather than an individual's current dangerousness.[65] The United States Court of Appeals for the Second Circuit held that this system deprived sex offenders of a protected liberty interest because officials did not afford registrants a hearing to determine whether they are likely to be "currently dangerous."[66] The Supreme Court reversed, holding that procedural due process did not apply because, under the Connecticut system, whether a registrant is currently dangerous is irrelevant: "[D]ue process does not require the opportunity to prove a fact that is not material to [a] State's statutory scheme."[67] But the Court also explained that the statute's failure to exclude non-dangerous offenders from registration requirements could be a violation of substantive due process:

In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders - currently dangerous or not - must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in 'procedural due process' terms." Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process.[68]

         3. Why we apply strict scrutiny

         We have employed three standards under which claims of substantive due process violations may be reviewed: strict scrutiny, intermediate scrutiny, and rational basis review.[69] Under strict scrutiny, when a law substantially burdens a fundamental right, the State must articulate a compelling state interest that justifies infringing the right and must demonstrate that no less restrictive means of advancing the state interest exists.[70] Under intermediate scrutiny, when state action interferes with an individual's liberty interest that is not characterized as fundamental, the State must show a legitimate state interest and a "close and substantial relationship" between that interest and the chosen means of achieving it.[71] Under rational basis review, the party claiming a substantive due process violation has the burden of showing that there is no rational basis for the challenged legislation.[72] "This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification."[73]

         We believe that strict scrutiny applies in the present case because the right to privacy is an explicitly enumerated right under the Alaska Constitution and thus should generally be considered fundamental.[74] In so concluding we follow the lead of the United States Supreme Court, which has held that the "liberty" protected by the due process clause includes the specific freedoms enumerated in the Bill of Rights.[75] The right to privacy as an enumerated freedom under the Alaska Constitution is entitled to comparable respect and standing in our jurisprudence.[76]

         We limit this conclusion, however, to cases where the alleged due process violation rests on a right to privacy claim that, if asserted directly, would be analyzed under strict scrutiny. This is such a case. Our right to privacy cases can be divided into two categories: those that claim a right of personal autonomy, [77] and those that seek to shield sensitive personal information from public disclosure.[78] This case falls in the latter category. We have held that cases in the sensitive information category will be analyzed using strict scrutiny, asking the following questions:

(1) [D]oes the party seeking to come within the protection of the right to privacy have a legitimate expectation that the materials or information will not be disclosed?
(2) [I]s disclosure nonetheless required to serve a compelling state interest?
(3) [I]f so, will the necessary disclosures occur in that manner which is least intrusive with respect to the right to privacy?[79]

         Given that this method is used in direct claims of privacy violations involving the disclosure of sensitive information, it would be anomalous to take a more permissive approach when analyzing a claim that state action violates substantive due process because it violates the right to privacy.

         But the mere invocation of the right to privacy does not automatically trigger a strict scrutiny analysis. For the right to privacy to apply, there must be both a legitimate expectation of privacy and a claim of a substantial infringement, as distinguished from a minimal one.[80] Further, when these requirements are met they only establish the first step of strict scrutiny review. The right to privacy is neither absolute nor unconditional, and still may be overcome by a statute enacted for compelling reasons using means that are narrowly tailored to achieve the statute's objectives.[81]

         4. Legitimate expectation of privacy

         We proceed to determine whether sex offenders have a legitimate expectation of privacy in the information disclosed on the internet under ASORA. A legitimate expectation of privacy is an expectation that "society is prepared to recognize as reasonable."[82] We assess the legitimacy or objective reasonableness of an expectation of privacy without considering whether there are compelling governmental reasons that outweigh the privacy claim. The sufficiency of the government's asserted countervailing interest is the subject of the second step of the strict scrutiny analysis.[83]

         As already stated, Alaska's right to privacy generally protects two types of interests. One is an individual's interest in personal autonomy and independence in decision making.[84] The other is an individual's interest in protecting "sensitive personal information . . . which if, disclosed . . ., could cause embarrassment[, ] anxiety,' "[85] humiliation, [86] harassment, [87] or economic and physical reprisals.[88] We are concerned here with the latter type of protection.

         We have recognized that a medical marijuana user has an interest in keeping his usage of marijuana and his medical condition private;[89] that a police officer has a legitimate expectation of privacy in his personnel file;[90] and that a statute requiring a person who places a political advertisement in a newspaper to "reveal his name, address, occupation, employer, and the amount of his expenditure" burdens the right to privacy.[91] "[Disclosure of this information could lead to harassment or economic reprisals by readers, or even by an employer who did not want his name associated with particular issues."[92] Similarly, we have recognized that a statute requiring public officials to disclose clients or customers could infringe the privacy rights of the official's patients.[93]

         The fact that a person has been convicted of a sex offense is, if anything, more sensitive than the fact that a person has a serious illness, is a marijuana user, or sees a particular doctor. Sex offenders are among the most despised people in our society. Widespread publication of their conviction and personal details subjects them to community scorn and leaves them vulnerable to harassment and economic and physical reprisals.[94] These serious consequences squarely fall within the evils that the right to privacy was meant to guard against.

         The history of article I, section 22 (describing the Alaska constitutional right to privacy) suggests that the potential of computers to aggregate personal data was one of the core reasons for its adoption. According to an informal attorney general opinion, the legislature proposed this constitutional provision - which was later approved by the voters - "in response to a . . . concern over government computers generally." [95] Leading up to the amendment's adoption there were "persistent rumors that the Alaska State Troopers were compiling secret dossiers on Alaska citizens," prompting "considerable concern in the legislature in 1972 over the potential of systems like [the Alaska Justice Information System] for invasion into the privacy of individuals."[96] Since concern about the privacy risks posed by computer databases of personal information was central to the privacy amendment's adoption, the ASORA compilation and notification provisions fall directly within the amendment's ambit.

         The State argues (1) that a sex offender lacks a reasonable expectation of privacy in registry information because the fact of a sex offender's conviction is a matter of public record and (2) that his places of residence and employment are not of a "sensitive" nature. We do not accept these arguments. As to the first, the challenged publication here is not the public court file that shows a conviction, but rather the internet publication of both the conviction and personal information in a compilation of sex offenders.[97] Second, an offender's address and employment information, when included in such a compilation, is sensitive information because its publication can lead to serious negative consequences that the right to privacy is meant to protect against.

         With respect to the latter point, information concerning an offender's home address and place of employment are not necessarily in the public domain. Revealing a sex offender's home address potentially subjects him to harassment and physical attack. Revealing the offender's place of employment carries the same potential, plus it may discourage potential employers from hiring sex offenders because of the possible loss of business.

         Returning to the first point, we recognized in Doe 08 that "[t]here is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant's information."[98] Similarly, we stated that "the harmful effects of ASORA stem not just from the conviction but from the registration, disclosure, and dissemination provisions."[99] The Supreme Court of the United States has recognized this distinction in a freedom of information case:

Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.[100]

         A number of courts have held that a sex offender's privacy rights are implicated by internet publication of registration information, either because some of the information is private or because the aggregation and accessibility of the information raises legitimate privacy concerns, and have therefore applied strict or at least heightened scrutiny.[101] Both grounds apply in this case. As to the latter, we find particularly persuasive the following observations of the New Jersey Supreme Court:

Government dissemination of information to which the public merely has access through various sources eliminates the costs, in time, effort, and expense, that members of the public would incur in assembling the information themselves. Those costs, however, may severely limit the extent to which the information becomes a matter of public knowledge. The [New Jersey] Notification Law therefore exposes various bits of information that, although accessible to the public, may remain obscure. Indeed, as in Reporters Committee., [102] if the information disclosed under the Notification Law were, in fact, freely available, there would be no need for the law.[103]

         The New Jersey court explained that "when the government assembles those diverse pieces of information into a single package and disseminates that package to the public," the government "thereby ensur[es] that a person cannot assume anonymity - in this case, [by] preventing a person's criminal history from fading into obscurity and being wholly forgotten."[104]

         Internet publication of sex offender registration information potentially inflicts grievous harms on sex offenders ranging from public scorn and ostracism to harassment, to difficulty in finding and maintaining employment, to threats of violence and actual violence. Our cases establish that the privacy clause protects against the release of information that can result in such harms in other contexts, [105] and it is reasonable to expect that the privacy clause does so in the current context as well. Further, the threats to personal privacy posed by government computer data compilations like the ASORA registry were a central concern underlying the enactment of the privacy clause in the Alaska constitution. For these reasons we conclude that a sex offender may hold a legitimate and objectively reasonable privacy expectation that his conviction and personal information will not be disseminated as it is under ASORA.[106]

         People who have been convicted of serious crimes, including sex offenders, have a hard time re-integrating into society after they have served their time. They should be able to expect that the state will not engage in a program of continuous publicity designed to remind the public of their past misdeeds where such a program will make their re-integration harder, if not virtually impossible. Because this expectation is reasonable, the right to privacy ensures that the state will not undertake such a program except where there is a compelling need, and only if the program is narrowly tailored to meet that need.[107]

         5. Compelling interest

         The State argues that ASORA furthers a compelling state interest of protecting the public. Relying on decisions from other jurisdictions that quote studies showing that sex offenders "have a greater probability of recidivism than other offenders" and "are much more likely than other offenders to commit additional sex crimes, "[108] the State argues that its "interest in protecting its citizens from a group of persons who, according to studies, are far more likely to re-offend is not merely legitimate but compelling." The need is even stronger, the State continues, "because of the serious, long-term impact of sex offenses on victims," especially when the victims are children. Although the State's cited studies have been widely questioned, [109] Doe does not attempt any general refutation of the State's argument that ASORA furthers a compelling interest in public safety.

         The only argument Doe makes concerning the absence of a compelling interest is that if an offender is not likely to commit a new sex offense, then there is not a compelling state interest that requires registration. In support of this position, Doe cites Doe 04's conclusion that "absent the likelihood Doe will commit new sex offenses, there is no compelling government interest in requiring Doe to do the things ASORA demands."[110] We believe that this argument is best treated as a challenge to ASORA's lack of narrow tailoring and we consider it in the next section of this opinion.

         We accept the State's assertion that the publication of sex offender information under ASORA is justified by a compelling state interest.

         6. Less restrictive means

         Having identified and weighed the rights involved in this case, we turn to the question whether ASORA advances the State's compelling interest using the least restrictive means available.

         Doe argues, among other things, that ASORA does not meet the least restrictive means because it does not permit a hearing by which a registrant can be relieved of ASORA's requirements if he proves that he does not present a threat to the public: ASORA "labels all registrants with a 'scarlet letter' of'dangerous sex offender' without any finding in that regard." He argues that ASORA is an "offense-based" registration law rather than an "offender-based" one in which "the extent of public notification, if any" is tied to "a sex offender's currently assessed dangerousness." Doe contends that the offense-based approach is flawed because it sweeps too broadly and includes those who are no longer dangerous: "In many cases, the offense is ancient, the offender is rehabilitated and registration and notification harms registrants and infringes upon cherished liberties without serving any remedial purpose."

         In response the State argues that ASORA is narrowly tailored to accomplish its public safety purposes. The State suggests that ASORA reflects a legislative judgment that individuals - not courts or agencies - should decide what level of risk is acceptable in a given situation: "The risk that a woman may tolerate when choosing a person to date is quite different from the risk a fast food restaurant may tolerate when hiring someone to clean.... The woman [] may choose to apply 'zero tolerance' while the restaurant may be willing to assume more risk." The State also suggests that ASORA reflects "a legislative judgment that the effects of [sex] crimes are so serious that no level of risk is acceptable."

         For the reasons that follow, we conclude that Doe has the better of the argument. ASORA's coverage is excessive to the extent it applies to sex offenders who do not present a danger of committing new sex offenses. We recognized this point in Doe 04 where we observed that without "the likelihood [that the offender] will commit new sex offenses, there is no compelling government interest in requiring" him to comply with ASORA.[111]

         In Doe 08 we recognized that ASORA imposed excessive burdens in relation to its regulatory purposes. We stated:

It is significant that ASORA's scope is broad; it encompasses a wide array of crimes that vary greatly in severity. Moreover, ASORA provides no mechanism by which a registered sex offender can petition the state or a court for relief from the obligations of continued registration and disclosure. "Offenders cannot shorten their registration or notification period, even on the clearest ...

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