Having been released to parole supervision following their incarceration resulting from separate convictions for sexual offenses the defendants individually appeared before the Court, pursuant to Correction Law to obtain judicial determinations as to the level of notification or classification applicable to them.
Prior to the Court’s assessment of their risk levels, criminal defendant one and defendant two, by Notice of Motion challenged the constitutionality of SORA. These motions, argued within two days of each other, have now been consolidated for purposes of this decision because they raise identical legal issues. Supported by a brief affirmation of the Assistant Public Defender appearing as counsel for both defendants and relying wholly upon the Judge’s decision, each defendant maintains that, as it applies to him, SORA is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. The Attorney General, in opposition, while conceding the Act’s retrospectivity asserts that it does not implicate the Ex Post Facto Clause because the statute is remedial and not punitive.
The salient provisions of the statute, as it pertains to the defendants’ ex post facto claims, must initially be summarized. The Act requires those individuals convicted of designated offenses, principally sex crimes offenses, to register with the Division of Criminal Justice Services (DCJS) ten days after their discharge from prison, or their release or parole. Verification by the sex offenders of their addresses and any relocation by them is required for at least ten years unless the court grants relief from the registration requirement. A sex offender’s failure to register is punishable as a misdemeanor for the first offense with any subsequent failure to do so constituting a Class D Felony. Additionally, any failure to register may constitute necessary grounds for a parole revocation.
DCJS is mandated to create a file for each registered individual comprised of the sex offender’s name, aliases, date of birth, physical description, driver’s license number, photograph, fingerprints and home address and/or expected place of domicile. A description of the offense, date of conviction and sentence is also included in each file. The accumulated sex offender data is maintained by DCJS in a central registry subject to dissemination to law enforcement agencies and other entities in accordance with the notification provisions delineated in the Act. The extent or degree of permissible notification is a function of the risk level of a repeat offense ascribed to a particular sex offender. In this regard, three levels of risk and notification, denoted as low (level one), moderate (level two), and high (level three), are recognized by the law.
Although notification to certain local law enforcement agencies is mandated for all sex offenders, public or community notification is only authorized for those sex offenders who are classified as attaining a level two or a level three risk assessment (Id.). A level two designation authorizes law enforcement agencies to disseminate to any entity with vulnerable populations related to the nature of the offense information about the sex offender, including his approximate address based on zip code, a photograph of the sex offender, as well as information relative to the sex offense for which he was convicted. As regards a level three sex offender, the same information is subject to release to that entity having a vulnerable population in addition to which said entity may also be apprised of the offender’s exact address. In addition, further circulation of the information received by the contacted entity is permissible. Moreover, data concerning a level three sex offender is contained in a subdirectory distributed to local police departments and accessible for public inspection. Another source of information regarding any registered sex offender is available through a “900” number that DCJS is mandated to operate.
The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.
The overall design of the statute must bear out the non-punitive intent. Therefore, it is incumbent upon the Court to delve more deeply into the Act and ferret out any secret agenda that may be concealed therein. Upon a thorough review of the statute, it is hereby concluded that it is not excessive in its reach or burdens, but conversely, is a measured response to a perceived danger.
Without question, public disclosure of a person’s crime for the sole purpose of disgracing and humiliating the offender was once employed as a punitive measure. These antecedents from bygone days do not dictate the conclusion that in this era, emanating from a very different context, public notification is necessarily punishment. Instead, the historical use of shaming as punishment serves to alert the criminal court to that potential use. It is evident, however, that the Act is not the product of a lust for retribution; it is a measured attempt to achieve remedial with attendant deterrent goals. The shaming punishments of colonial times were intended to and did visit society’s wrath directly upon the offender; Megan’s Law has different, protective purposes.
With regard to the stigma and opprobrium that may result from the disclosure of an individual’s status as a sex crimes offender, it must be recalled that criminal convictions are matters of public record. Furthermore, the Court agrees with the conclusion reached by the New Jersey Supreme Court wherein that court upheld the constitutionality of Megan’s Law, that a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: “intent to punish.”
The mere fact that the law is responsive to a person’s prior criminal conduct is insufficient to render it punitive, since our legislature reasonably concluded, with regard to sexual offenders, that their past behavior is a strong predictor of future conduct, and accordingly, implemented appropriate measures to protect society.
The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case, however, where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation. When judged by this standard, SORA unquestionably passes muster as a remedial law, since the burdens that are imposed were occasioned by bona fide governmental concerns regarding the peril presented to the public by known sexual predators at liberty. In conclusion, therefore, the defendants herein have failed to establish by the clearest proof that the Act is so punitive in its effect as to negate the legislative intention to establish a civil remedial mechanism.
Vigilance without vengeance, as SORA is constituted, against those who have proven to be threats to society does not embody punishment. It rationally follows that the Act does not contravene or run afoul of the Ex Post Factor Clause, and, therefore, in that respect, it is not unconstitutional. Accordingly, upon the above, the defendants’ motions are hereby denied in their entirety.
Warnings are made so that we can avoid further harm. In connection with labeling sex offenders, it would be of help to the community if everyone is well aware of people who would be threat to them and their family members. If you want to pursue a sex related crime, consult the NYC Sex Crime Attorney or the NY Criminal Lawyer from Stephen Bilkis and Associates.