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 ...