E.B. v. Verniero (Part II)

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

8-20-1997

E.B. v. Verniero (Part II)
Precedential or Non-Precedential:

Docket 96-5132,96-5416

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mJ
 supra, at 1228-34 (describing the
decreased use of shaming punishments as colonial
communities grew in size thereby increasing the likelihood
that the offender was a stranger to the witnesses of his
punishment); see also Dan M. Kahan, What do Alternative
Sanctions Mean?, 63 U. Chi. L. Rev. 591, 631 (1996) ("Early
Americans turned to imprisonment in large part because
they believed that existing criminal penalties had lost the
power to shame.").8 Moreover, as noted above, central to
_________________________________________________________________

6. I rely here on the type of information released pursuant to the
Attorney General's guidelines implementing notification. See N.J. Stat.
Ann. § 2C:7-8(d) (1995). I assume that the guidelines accurately reflect
the legislative purpose in this respect.

7. Contrary to the majority's assertions, there is no evidence of which I
am aware that a colonial settlement would have known prior to the
shaming itself of an offender's crime. I suspect that if the community
was already aware of the crime, then shaming punishments would be
unnecessarily duplicative.

8. In an interesting, perhaps ironic twist, the need for notification
provisions arises because of the "anonymity afforded by modern society."

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many of the shaming punishments was some notice-- e.g.,
a sign, a label, or a brand -- of the offense(s) for which the
offender was being punished.

In contrast, warning or wanted posters and quarantine
notices do not disseminate the same type of information
disseminated by notification provisions. A warning or
wanted poster, displayed in an effort to catch escaped
prisoners or to arrest alleged criminals, obviously does not
include information about the location of the offender's
current dwelling, nor of his current employment. If the
authorities had this information, they would know how to
apprehend the offender. Such posters also typically include
information about the facts of the individual's escape in the
case of a warning poster, and the facts of the individual's
alleged crime in the case of a wanted poster. Quarantine
notices, too, include information different from that
included in notification provisions. The most prominent
difference is that quarantine notices include health-related
information; such notices make no mention of criminal or
alleged criminal activity. Information provided pursuant to
notification, then, links the registrant to some act for which
he is blameworthy. Health related information is normally
not related to culpability.

The state attempts to distinguish the notification
provisions from the shaming punishments in terms of the
scope of the notification. New Jersey makes much of the
fact that the notification provisions, unlike the shaming
punishments, do not involve the dissemination of
information to the entire community. I believe that the state
overstates the significance of this difference. Though
notification under both Tier 2 and Tier 3 is intended to be
limited, the design of the provisions seems to encourage
more widespread dissemination. Tier 3 recipients are not
warned that the information is confidential. Tier 2
_________________________________________________________________

Recent Legislation, 108 Harv. L. Rev. 787, 790 (1995) (discussing the
Washington state sex offender notification statute). Piercing the veil of
modern anonymity may serve remedial purposes, such as alerting the
community to the risk that a convicted sex offender who resides nearby
may re-offend, but it also may serve punitive purposes, such as
providing the community a target for harassment.'

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recipients are so warned, but I fail to see how that warning
is to be taken seriously. Under Tier 2, notification is given
to the staff of organizations charged with the care or
supervision of children and/or women. Such notification
would effect the remedial purpose of the statute-- the
protection of the children and women under the care of the
organizations -- only if the organizations pass the
notification information to the children and women under
their care.

New Jersey also emphasizes that notification is tailored
to the specific offender and may not occur at all. In
emphasizing this aspect of notification, the state fails to
appreciate fully the textured nuances of the shaming
punishments. Shaming punishments were also tailored to
the specific offender and often did not occur at all. For
instance, permanent labeling and branding were reserved
for offenders whose likelihood of re-offense was high. See
Friedman, supra at 40. Only the "deep-dyed sinner" would
suffer such a fate. Id. Further, shaming punishments were
by no means automatic; not all offenders would be so
punished. Fines or bonds for good behavior (payments
made to the authorities that were forfeited should the
surety commit a misdeed within a certain time period) were
common punishments for lesser offenses. See Hirsch, supra
at 1224. And, even for more serious offenses, an offender
could often simply pay a fine and avoid a shaming
punishment altogether. See Friedman, supra at 38
(describing the punishment for a woman who struck her
husband as either half an hour at a town meeting with her
offense written on her forehead or the payment of a fine to
the county).

5. Summary: Shaming Punishments as the Best Analogy

In sum, the foregoing analysis demonstrates that the
closest historical analogues to the notification provisions of
Megan's Law are the shaming punishments, which were
traditionally considered punitive.9 Like the shaming
_________________________________________________________________

9. It is interesting to note that in recent years courts nationwide have
returned to versions of the colonial shaming punishments. See Kahan,

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punishments, notification is carried out by the state. In
that sense, notification is unlike measures in which the
state merely allows private individuals or entities to access
information and then allows those individuals to release
that information more broadly. Moreover, like the shaming
punishments, notification provides the community with
information about the registrant's identity and physical
description, place of residence, place of employment, and
criminal history. Such information is judicially endorsed.
The information provided by notification is different from
that provided by warning or wanted posters, which do not
provide information about residence and employment, and
quarantine notices, which do not provide information about
criminal history; none of this information is judicially
endorsed. Above all notification is the functional equivalent
of shaming punishments; notification publishes information
about the registrant calculated to reach the entire
community and likely to lead to public opprobrium.

D. Does the Text, Legislative History, or Design of
the Notification Provisions Demonstrate That
They are not Punitive?

1. Introduction; The Role of Law Enforcement

Under Artway, the notification provisions must be
considered punishment provided the text or legislative
history does not demonstrate that they are not punitive. I
therefore turn to the question whether the text or legislative
history so demonstrates. This part of the analysis requires
an examination of the actual operation or design of the
_________________________________________________________________

supra, at 631-34. Courts might require individuals to wear t-shirts or
bracelets announcing their crime, to post placards on their houses or
bumper stickers on their cars, to stand in public places wearing signs,
or to apologize publicly to the community or their victims. See id. at 632-
34. The actual, stated purpose of these measures is punitive; in that
sense, they differ from Megan's Law. However, these measures suggest a
shared cultural understanding, still prevalent in our society, that
publicity concerning an individual's misdeeds can, and often is, intended
to punish that individual.

84
measure at issue. See Hendricks, 65 U.S.L.W. at 4568-70
(examining the design of the Kansas civil commitment
statute). It is an inquiry focused on the question whether
the legislature designed the statutory scheme in such a
manner so as "to contradict the historical understanding of
[the measure] as punishment." Austin v. United States, 509
U.S. 602, 619 (1993).

Perhaps the most striking feature of the statutory design
is its placement of the tier classification determination and
of the notification process squarely within the criminal
justice system. The chapter that contains the registration
and notification provisions is contained in the state's Code
of Criminal Justice. Cf. Hendricks, 65 U.S.L.W. at 4568
(relying in part on the decision by the state of Kansas to
place its Sexually Violent Predator Act within the probate
code, instead of the criminal code, to conclude that the
challenged measure was not a criminal proceeding). It is
the Attorney General of New Jersey, a law enforcement
officer, who is charged with "promulgat[ing] guidelines and
procedures for the notification required" by Megan's Law.
N.J. Stat. Ann. § 2C:7-8(a) (1995).

The guidelines are to be formulated with the advice of a
"notification advisory council" comprised, at least in part, of
professionals from various fields outside of official law
enforcement, but the professionals are all involved, at least
to some degree, in the criminal justice system, broadly
defined, and this council provides, as its name suggests,
mere recommendations. See id. § 2C:7-11. Once in place,
the guidelines are to be implemented by the county
prosecutors: they determine the risk that a particular
offender poses for re-offending, thereby setting the tier
classification, and they determine the means of providing
notification. See id. § 2C:7-8(d).

As the guidelines are currently written, the county
prosecutors have significant leeway both in determining the
appropriate tier classification and in fashioning the proper
notification plan. Application of the Registrant Risk
Assessment Scale is by no means ministerial; the county
prosecutors must determine whether the particular offender
poses a low, moderate, or high risk to the community for
each factor in the Scale. Although the Scale provides

85
guidance to the prosecutors making this determination, it
does not eliminate from the process prosecutorial
evaluation. The guidelines allow prosecutors to enlist the
assistance of persons outside the prosecutor's office, such
as social workers or psychologists. However, the guidelines
leave formulation of the notification to the considered
judgment of the county prosecutors. It is up to those law
enforcement officials to ensure that the notification is
properly tailored to reach those at risk of being victimized
by the particular offender.

Finally, law enforcement officers, whether of the
municipality in which the offender intends to reside or of
the state police force, provide the actual notification. See id.
§§ 2C:7-6, 2C:7-7.

2. Promoting the Aims of Punishment

The operation of the statute will, moreover, promote"the
traditional aims of punishment -- retribution and
deterrence." Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168 (1963); see Hendricks, 65 U.S.L.W. at 4568 ("As a
threshold matter, commitment under the Act does not
implicate either of the two primary objectives of criminal
punishment -- retribution or deterrence."). Of course,
simply because a measure has the effect of promoting
retribution and deterrence does not necessarily mean that
its purpose was to do so. See Artway, 81 F.3d at 1255.
Still, such an effect suggests that the particular measure
was not designed in a way that contradicts the historical
understanding of its analogues as punitive. That the
notification provisions of Megan's Law promote retribution
and deterrence is demonstrated as follows.

By publicizing an offender's crime to the community,
notification realizes justice, see id. (explaining that
retribution "does not seek to affect future conduct or solve
any problem except realizing `justice' "), in that it inflicts
suffering on the offender. It is undisputed that notification
results in shaming the offender, thereby effecting some
amount of retribution. This suffering "serves as a threat of
negative repercussions [thereby] discourag[ing] people from
engaging in certain behavior." Id. It is, therefore, also a

86
deterrent. There is no disputing this deterrent signal; the
notification provisions are triggered by behavior that is
already a crime, suggesting that those who consider
engaging in such behavior should beware. See Doe v.
Pataki, 940 F. Supp. 603, 623 (S.D.N.Y. 1996) ("The Act is
designed in such a fashion as to suggest that it is punitive.
It contains classic indicia of a punitive scheme. Its
provisions are triggered by behavior that is `already a
crime.' ").

3. Excessiveness

The design inquiry is also furthered by an analysis of
whether the notification provisions are excessive in relation
to their stated remedial purpose. In a several important
respects, they are. First, the criminal acts that, pursuant to
Megan's Law, trigger registration and potentially subject an
offender to notification, are over-broad. For example,
kidnapping, even without a concomitant sexual offense,
triggers notification, see N.J. Stat. Ann. § 2C:13-1(c)(2)(c);
so, too, does consensual sexual contact that is criminalized
merely because of the age of one of the participants, see,
e.g., id. § 2C:14-2(a)(1), (b), (c)(5). See Doe v. Pataki, 940 F.
Supp. at 623-24 (describing New York's Megan's Law as
excessive because it covers individuals such as a "21-year
old who engages in sexual intercourse with a 16-year old
(who is not a spouse)," a person who engages in incest, and
a person who restrains another under the age of 17);
Kansas v. Myers, 923 P.2d 1024, 1042-43 (Kan. 1996)
(describing Kansas's Megan's Law as excessive because
"[s]everal of the listed felonies [triggering registration and
notification] include what otherwise might be viewed as
voluntary sexual contact between two persons that is
considered criminal because of the minority status of the
victim and the fact that the victim is not married to the
accused").

Next, notification under Tier 3 is often provided to those
who simply do not need to know that there is a released sex
offender nearby. Tier 3 notification is to be provided to
"members of the public likely to encounter the person
registered." N.J. Stat. Ann. § 2C:7-8(c)(3) (1995). But the
"likely to encounter" standard does not limit notification to

87
vulnerable populations. It is a standard based largely on
geographic proximity, see Doe v. Poritz, 662 A.2d 367, 385
(N.J. 1995), rather than whether the recipient of
notification needs protection (e.g., a child) or can protect
others (e.g., a parent). Under the statute, a move by a
registrant into a retirement community will trigger
notification of his neighbors.10

Similarly, the type of information required to be provided
by the guidelines is excessive; it is information individual
recipients often simply do not need to know. Individuals
who receive notification learn of an offender's place of
residence and his place of employment, regardless of their
relative locations. If an offender does not work at a location
near to his place of residence, which I suspect is not
uncommon, then such information is only in part useful for
protection. A recipient of notification who lives, attends
school, works, or is otherwise located near to an offender's
place of residence should be little concerned about the
location of the offender's place of employment (and vice
versa). Knowing the offender's place of residence might
lessen the risk that the recipient will become a victim of the
released offender; he or she can avoid the offender's house,
for example. But, knowing the offender's distant place of
employment offers no protective assistance to the recipient.
If the person is not likely to encounter the offender at the
offender's place of employment (or place of residence), why
would he or she need or want to know such information?
_________________________________________________________________

10. The guidelines written to implement Megan's Law may be interpreted
to warn against this very problem. They suggest that the law
enforcement officials responsible for implementing the notification tailor
such notification so that it reaches only those at risk. However, the
examples provided by the guidelines suggest limitations on the type of
recipient organizations, not on recipient individuals. Moreover, the
guidelines stress that, notwithstanding this suggested tailoring,
geographic proximity remains the critical factor in determining the scope
of notification. Additionally, once the information is released, there is no
practical means of limiting its further distribution. See Kansas v. Myers,
923 P.2d 1024, 1041 (Kan. 1996) ("The print or broadcast media could
make it a practice of publishing the list [of released sex offenders] as
often as they chose. Anyone could distribute leaflets containing the
registered information anywhere and anytime.").

88
4. Summary of "Design"

In sum, the design of the notification provisions does not
contradict the historical understanding of analogues to
such provisions as punitive. Notification is placed in New
Jersey's criminal code and is structured and carried out by
state law enforcement officials. Further, notification
promotes the aims of retribution and deterrence. Finally, in
important respects, notification is excessive. The particular
recipients who receive notification and the type of
information they receive are not carefully tailored to the
remedial goals notification is intended to serve.

E. Notification Fails the History Subpart of Artway

As the foregoing discussion makes clear, the proper
historical analogues to the notification provisions of
Megan's Law are the shaming punishments of colonial
America. Clearly punitive, such punishments evidence an
objective punitive purpose for the notification provisions.
Because the design of the notification provisions--
especially the placement of the provisions in the state
criminal code and the placement of the responsibility of
enforcing them with law enforcement officials, the
excessiveness of their operation, and their promotion of
retribution and deterrence -- does not negate this objective
punitive purpose. Therefore, I believe Megan's Law fails the
history subpart of the second prong of the Artway test and
should be considered punishment. As a result, the
judgment of the district court should be reversed. This
conclusion is buttressed by my discussion infra at Part II.C.
of the extent to which, by reason of the network of Megan's
Laws throughout the nation, notification is akin to
banishment, another traditional colonial measure in the
nature of punishment. See supra, at Part I.C.2.11
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11. Because of my conclusion as to the history subpart of the Artway
test, I need not examine in detail the other subparts of the objective
purpose prong of the test. I mention them here only briefly. First, though
it is a very close question, I doubt that the notification provisions of
Megan's Law, as I have described their design, can be explained solely by
a remedial purpose. Second, because, as I have discussed, the
traditional understanding of historical analogues to the notification

89
II. EFFECTS

A. Introduction

The final prong of the Artway test concerns the actual
effects of the challenged measure. According to Artway, "[i]f
the negative repercussions -- regardless of how they are
justified -- are great enough, the measure must be
considered punishment." Artway, 81 F.3d at 1263.12 The
analysis required under this part of the test is one of
degree, and is guided by the signposts of already decided
cases. See id.

The conclusions I have already reached -- that Megan's
Law fails the objective purpose prong of the Artway test
and must, therefore, be considered punitive -- might make
it unnecessary for me to reach the "effects" issue. However,
because of the relevance of the effects to application of the
clearest proof standard on which the majority relies, see
infra Part III, because I believe that the majority's effects
analysis is seriously flawed, and also because the
enormous importance of the case counsels that I explain
why, I discuss the effects of the notification provisions. As
I will demonstrate, the majority, in undertaking its own
analysis, narrows the test fashioned in Artway . It does so
without support, and, given the tenor of the analysis,
_________________________________________________________________

provisions and the design of Megan's Law evidence an objective
retributive purpose, the third subpart of the objective purpose prong is
not implicated. In other words, the third subpart of the objective purpose
prong applies only "if the legislature did not intend a law to be
retributive but did intend it to serve some mixture of deterrent and
salutary [remedial] purposes." Artway , 81 F.3d at 1263. Here, such a
retributive purpose existed.

12. Holding that the retroactive cancellation of early release credits
earned by prison inmates violated the Ex Post Facto Clause, the
Supreme Court examined the actual effect of the legislation at issue
without concern for the stated legislative purpose. See Lynce v. Mathis,
___ U.S. ___, 117 S. Ct. 891, 896-98 (1997). In so doing, the Court
reaffirmed its approach in California Department of Corrections v.
Morales, ___ U.S. ___, 115 S. Ct. 1597 (1995), on which Artway based
the effects prong of its test. See Lynce, 117 S. Ct. at 897.

90
unnecessarily. I also identify problems with its substantive
discussion.

B. Methodology: The Proper Standard for
Evaluating Effects

To begin, I quote from the majority's opinion: "It
necessarily follows that some limit must be placed on the
situations in which a measure's sting alone, despite its
remedial purpose and effect, will constitute punishment
under those clauses and that classification as punishment
on the basis of sting alone must be reserved for cases
involving deprivation of the interests most highly valued in
our constitutional republic. . . . Interests such as these are
sufficiently fundamental to our constitutionally secured
liberty that state interference with them can be justified
only by the most important of state interests." With the
second sentence, the majority states that the line marking
the boundary between a non-punitive and a punitive
measure varies according to the remedial interest sought to
be served by the measure. In other words, it appears that
the majority is holding that the more important the
remedial interest served by a particular measure the more
harsh the sting of the measure's effects may be before the
measure is classified as punitive. Nothing in Artway (or, for
that matter, in the Supreme Court jurisprudence on which
it draws) suggests such a formulation of the effects prong.
To the contrary, Artway posits that a particular sting either
falls on the punishment side of the line or it does not. At
issue here is the particular sting, not the particular
remedial interest.

The majority has thus introduced a difficult-to-apply
sliding scale into an already complex test. This needless
complication would render it nearly impossible to determine
whether a particular sting is punishment. For example, as
we know from Hawker v. New York, 170 U.S. 189 (1898),
the revocation of a license to practice one's profession is not
considered punishment. However, could such a revocation
be punishment if the remedial interest served by the
challenged measure is relatively unimportant? If so, at what
point does the importance of the remedial interests render
such a revocation non-punitive? Under the majority's

91
reading of Artway, an analysis of the effects prong requires
a two-track inquiry, guided only by a few fixed points. I fear
that this amorphous inquiry might lead to an elusive or
protean jurisprudence, something to be avoided.

Moreover, because the other prongs of the Artway test
adequately stir into the mix the remedial interests served
by the particular measure, we need not examine those
interests under the effects prong. The actual purpose prong
examines whether the legislature subjectively intended the
measure to advance remedial interests. All three subparts
of the objective purpose prong require the reviewing court,
to some degree, to consider the remedial interests the
legislature subjectively believed it was advancing by
enacting the challenged measure. Considering the stated
remedial purpose under the effects prong might over-
emphasize that stated purpose, thereby potentially allowing
diversion of attention from the actual operation of the
measure.

The majority also narrows the Artway test by requiring
that, at a minimum, a challenged measure act to deprive
affected persons of a sufficiently fundamental interest before
that measure is considered to cause punitive effects. The
majority offers no support for this proposition in either logic
or precedent, and I am unaware of any. Nothing in Artway
(or, for that matter, in the Supreme Court jurisprudence on
which it draws) suggests such a formulation of the effects
prong. In addition, at least as I read the majority's opinion,
defining the effects prong in this manner is unnecessary to
the result. The majority apparently believes that the effects
caused by notification simply are not harsh enough to
classify Megan's Law as punitive. Under my reading of
Artway, satisfaction of the effects prong does not require
overcoming such a difficult hurdle.

I am especially concerned in this regard because of the
indefiniteness of the majority's formulation. It is not
apparent to me what would constitute a "sufficiently
fundamental interest." Furthermore, without a clear
understanding of those interests the deprivation of which
might constitute punishment, I am also unsure as to
whether the majority adequately defines the universe of
interests that it, or I, would deem worthy of protection. In

92
short, I fear that the majority might have left too little room
to deal with unforeseen cases in this difficult area of
jurisprudence.

In addition to re-formulating the Artway test, the
majority also treats the effects of notification in such a
manner as to minimize the impact of those effects. First, it
emphasizes that the effects of which the offenders complain
-- e.g., isolation, public humiliation, loss of employment
opportunities, and physical violence -- are indirect.
Although I agree that such is the case, I remonstrate
against what seems to be overemphasis upon that aspect of
notification for, in itself, indirectness of effects is not
dispositive.

The Supreme Court addressed the question of directness
in California Department of Corrections v. Morales, ___ U.S.
___, 115 S. Ct. 1597 (1995), the very case on which Artway
bases the effects prong of its test. The Court struggled with
the question whether a change in the procedures governing
parole suitability hearings would effect an impact on a
prisoner's expected term of confinement. See id. at 1602-
05. In concluding that the measure did not constitute
punishment, the Court determined that the changes in the
relevant procedures "create[d] only the most speculative
and attenuated possibility of producing the prohibited effect
of increasing the measure of punishment for covered
crimes." Id. at 1603. The Court made plain, however, that
even the indirect effects of a measure could render it
punitive.

Here, the indirect effects of notification are neither
"speculative" nor "attenuated." In fact, notification advances
the stated remedial purposes of Megan's Law only insofar
as it induces many of these indirect effects. For example,
public safety is enhanced if potential victims of an offender
are warned to avoid him, thereby isolating him from the
larger community. If the legislature were not aware that at
least partial isolation would necessarily result from
notification, I doubt that it would have believed that
notification would serve the remedial purposes it sought to
advance. And, although not necessarily vital in ensuring
the efficacy of Megan's Law, other indirect effects -- e.g.,
harassment, loss of employment opportunities, and

93
physical violence -- surely were anticipated as also being
inevitable. New Jersey was not the first state to adopt
notification provisions, and the experiences of other states
must have informed the New Jersey legislature as it
considered Megan's Law.

In other states, notification has caused harassment, loss
of job opportunities, and the like. A study by the
Washington State Institute for Public Policy, released in
December 1993 (approximately ten months prior to the
enactment of Megan's Law), reported numerous instances
of harassment following notification in Washington, some
quite severe, under its 1990 Community Protection Act. See
Sheila Donnelly & Roxanne Lieb, Community Notification: A
Survey of Law Enforcement 7 (1993). In short, most of the
indirect effects of notification are expected and foreseeable.

The second manner in which the majority minimizes the
impact of the effects of notification is by separating the
analysis into two distinct parts. It first examines the effect
of notification on the reputational interests of the offender;
then it examines the effect of notification on the increased
risk of physical violence. The majority concludes that each
of these effects, by itself, does not produce a sting harsh
enough to classify notification as punishment. It fails,
however, to determine whether these effects, if examined
together, are sufficiently harsh. The difference between
these two approaches is manifest. Individual effects each
might produce only a moderate sting; adding together these
little stings might, however, produce a great big sting. In
the real world, it is the total sting that the recipient feels.
It is not clear why the majority chose not to add these
stings together. And, at least from my reading of Artway,
there is no justification for choosing not to do so. Rather,
I believe that Artway (and Morales) require an analysis of
all the effects of a measure, provided they are not too
speculative or attenuated, and here they are not.

C. Actual Effects

Turning from methodology to substance, I first note my
agreement with the majority's identification of the effects
caused by notification as including isolation, harassment,

94
loss of employment and housing opportunities, damage to
property, and physical violence.13

As is clear from the majority's description of the effects of
notification, the burden imposed by the collective weight of
all of these effects is borne by the offender in all aspects of
his life. At worst, the offender is literally cut off from any
interaction with the wider community. He is unable to find
work or a home, cannot socialize, and is subject to violence
or at least the constant threat of violence. At best, he must
labor within significant confinements. Although perhaps
some people will hire him or rent him a home, his social
intercourse with others is all but non-existent. The effects
of notification permeate his entire existence. See Doe v.
Gregoire, 960 F. Supp. 1478, 1486 (W.D. Wash. 1997)
("[H]ere the punitive effects are dominant and
inescapable."); Roe v. Office of Adult Probation, 938 F. Supp.
1080, 1092 (D. Conn. 1996) ("Notification is an affirmative
placement by the State of a form of public stigma on Roe,
and this stigma by its very nature pervades into every
aspect of an offender's life."). And, although the majority's
opinion is eminently fair, I think that it understates the
effects of notification provisions. Throughout the nation,
there are continual reports of harassment, threats,
isolation, and violence. In the margin, I mention some of
the most recent occurrences.14
_________________________________________________________________

13. I recognize that analysis of the notification provisions presents
potentially difficult causation questions. For example, given that criminal
history information is publicly available, it is not clear whether the
harassment to which a released offender might be subject is caused by
government notification or by the general availability of such
information. It could well be that (and the record indicates instances in
which) a community becomes aware of the presence of a released
offender through the media. That said, the very fact that the state
believes it important to notify persons about the location of a sex
offender could both drive these media reports and spur local
communities into action. In such event, notification could be
characterized as a cause of these effects.

14. In California, where the information about released sex offenders can
be accessed on CD-ROM, a released offender's car wasfirebombed. See
Carolyne Zinko, Flyers Falsely Call Artist a Molester, S.F. Chron., July
14, 1997, at A1. Reaction to notification is often swift; another report

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Although the question is very close, I believe that there is
a strong argument that the harshness of the effects of
notification are closer to imprisonment and revocation of
citizenship than to a loss of a profession or of benefits. Like
imprisonment and the revocation of citizenship, notification
is all-pervasive. In that sense, the offender has almost no
refuge from the sometimes severe effects of notification. He
may seek to move to another state, but the majority of
states has some form of community notification. He could,
perhaps, move out of the country to avoid this network of
domestic Megan's Laws. At the extreme, then, notification
has become, at least for that offender, akin to banishment.
See Doe v. Pataki, 940 F. Supp. at 626 ("Notification
statutes have resulted in the banishment of sex offenders
both literally and psychologically."). This pervasive aspect of
notification differentiates it from the loss of employment
opportunities and the loss of benefits.15
_________________________________________________________________

from California notes that a neighborhood organized a protest within one
day of receiving notification in order to drive the released offender from
the community. See Bonnie Hayes & Frank Messina, Few Turn Out for
Megan's Law Viewing in O.C., L.A. Times, July 2, 1997, at A1. Further,
the community reaction does not easily wane. In New York, two
neighbors of a sex offender protested in front of his house for months in
an effort to force him to leave. See Today (NBC television broadcast,
June 24, 1997). Even those who have endeavored to help reintegrate
released sex offenders into the community have been thwarted; in some
areas, local churches have been unable to assist offenders because
individual congregants have made it impossible for the offenders to stay
in the flock. See Lisa Richardson, Megan's Law is Put to Test as Towns
Bounce Child Molesters, L.A. Times, May 25, 1997, at A3. In fact, so
potent a weapon is notification, that there are reports of false
notifications, presumably initiated by private individuals intent on
carrying out a personal vendetta. See Zinko, supra, at A1.

15. In both De Veau v. Braisted, 363 U.S. 144 (1960) (plurality opinion),
and Hawker v. New York, 170 U.S. 189 (1898), the Supreme Court held
that the loss of certain employment opportunities did not constitute
punishment. However, the loss of such opportunities was limited; in De
Veau, the relevant statute forbade a felon from work as a union official,
see De Veau, 363 U.S. at 145, and in Hawker , the relevant statute
forbade a felon from practicing medicine, see Hawker, 170 U.S. at 190.
In neither case did the statute limit all employment opportunities.

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Perhaps the most difficult question in this context is
whether notification is fairly considered punishment when
civil commitment -- a form of involuntary confinement -- is
not. In Hendricks the Supreme Court held that a state
statute allowing the confinement of convicted sex offenders
after the expiration of their prison term did not constitute
punishment. Important to the Court was the traditional
understanding of civil commitment as non-punitive. But
beyond that distinction, I note two respects in which
notification under Megan's Law may be considered more
harsh than the civil commitment statute at issue in
Hendricks.

First, anyone confined under the Kansas statute was
afforded some form of treatment if such was possible. See
Hendricks, 65 U.S.L.W. at 4569-70. No such treatment is
available to those subject to notification under Megan's
Law, and there is at least some evidence in the record that
the isolation engendered by notification may in fact cause
some offenders to recidivate. See Prentky Aff. ¶ 4,
Appellants' App. at 189; see also Doe v. Pataki , 940 F.
Supp. at 628. Thus, the effects of civil confinement might
be rehabilitative, while those of notification are exactly the
contrary. Second, the Kansas statute required a yearly
reevaluation of the confined offender. See Hendricks, 65
_________________________________________________________________

In Flemming v. Nestor, 363 U.S. 603 (1960), the Supreme Court held
that the loss of social security benefits did not constitute punishment. In
the context of the particular statute, however, the sting of that loss is
not as sharp as might be supposed initially. First, the spouse of the
beneficiary might still be eligible for benefits. See id. at 606 n.2. Second,
the loss is triggered by deportation from the United States. See id. at
604-05 & n.1. There is no indication whether the deportee might be
eligible for similar benefits in the country to which he is deported. Thus,
the loss of social security benefits in this context does not necessarily
render the affected individual destitute or without assistance; he has
other places to turn.

In a similar vein, we have recently held that the eviction of a tenant
from public housing because of a drug offense is not punitive, see Taylor
v. Cisneros, 102 F.3d 1334, 1341-1344 (3d Cir. 1996), but such an
eviction did not prevent the affected individual from obtaining housing
elsewhere.

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U.S.L.W. at 4569. The registration and notification
provisions in Megan's Law are applicable for at least fifteen
years. See N.J. Stat. Ann. § 2C:7-2(f) (1995). It is possible,
then, that the sting of notification will last far longer than
that of civil commitment.

D. Summary

In sum, although I do not rely on my analysis of the
effects prong of the Artway test to support my ultimate
conclusion, I note that the majority's discussion of effects is
seriously flawed in terms of both procedure and substance,
casting further doubt upon the judgment and shoring up
still further my dissenting posture. The majority improperly
and unnecessarily narrows the effects prong of Artway by
requiring that a measure deprive an individual of a
constitutionally secured fundamental right and by
examining the effects in isolated groupings. Finally, its
substantive discussion of actual effects is, in important
respects, flawed.

III. THE "CLEAREST PROOF" DOCTRINE

The majority's most serious challenge to my position
inheres in its argument, citing Hendricks and referring to
Ursery, that only the "clearest proof" will negate
congressional intent to deem a measure non-punitive. In
terms of the Artway test, then, the majority effectively holds
that should a measure be considered non-punitive under
the test's first (actual purpose) prong, then there is a strong
presumption that the measure is non-punitive, and only
the clearest proof as to the second (objective purpose) and
third (effects) prongs of the test will overcome that
presumption. I am unpersuaded. First, the etiology of the
"clearest proof" doctrine is such that I doubt that the
Supreme Court would apply it in this context with such
clear and direct historical antecedents, so plainly punitive
in character, to the community notification provisions of
Megan's Law. Second, even if the standard were applied
here, I believe that the historical context of notification, the
design of Megan's Law, and the effects resulting therefrom,
provide sufficiently clear proof of objective intent to negate
remedial purpose.

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The clearest proof standard was first articulated in
Flemming v. Nestor, 363 U.S. 603 (1960). In Flemming, the
Supreme Court addressed a contention that the legislative
history and design of a statute that allowed the Secretary of
Health, Education, and Welfare to terminate Social Security
benefits payable to aliens deported due to their political
affiliations evidenced a punitive congressional intent that
negated a stated remedial intent. The Court stated:

We observe initially that only the clearest proof could
suffice to establish the unconstitutionality of a statute
on such a ground. Judicial inquiries into Congressional
motives are at best a hazardous matter, and when that
inquiry seeks to go behind objective manifestations it
becomes a dubious affair indeed. Moreover, the
presumption of constitutionality with which this
enactment, like any other, comes to us forbids us
lightly to choose that reading of the statute's setting
which will invalidate it over that which will save it.

Id. at 617.

The Court has since employed the clearest proof standard
in at least six cases. In Communist Party of the United
States v. Subversive Activities Control Board, 367 U.S. 1
(1961), the Court considered whether, despite manifest
congressional intent to the contrary, a measure was
actually intended to outlaw the Communist Party. The
Court stated that only the clearest proof would negate that
congressional intent. In United States v. Ward, 448 U.S.
242 (1980), the Court required the clearest proof that,
despite the manifest intent to create a civil proceeding, a
fine under the Federal Water Pollution Control Act was
nevertheless a criminal proceeding. In United States v. One
Assortment of 89 Firearms, 465 U.S. 354 (1984), and in
Ursery, the Court applied the clearest proof standard to
determine whether civil forfeiture statutes were punitive.
Examining the Illinois Sexually Dangerous Persons Act, the
Court in Allen v. Illinois, 478 U.S. 364 (1986), stated that
only the clearest proof would negate the legislative intent
that proceedings determining whether an individual should
be committed to psychiatric care were civil in nature.
Finally, and most recently, in Hendricks, the Court used

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the clearest proof standard in the context of a challenge to
a civil commitment statute.

Although the Supreme Court has repeatedly applied the
clearest proof standard in the context of challenges alleging
that subjective legislative intent is different from objective
legislative intent, I am unwilling to apply the clearest proof
standard in this context, at least until the Supreme Court
makes it clear that doing so is appropriate. The clearest
proof standard creates a nearly irrebuttable presumption
that favors subjective legislative intent over objective
manifestations of that intent. In an excess of caution, I
eschew exploration of the extent to which such a
presumption can create incentives for legislatures to
obscure their actual intent with subjective intent, rendering
it unwise to employ it in certain circumstance. The purpose
of the "clearest proof" exercise is to provide a technique to
determine legislative intent. This technique is unnecessary
here, where, as I have explained, notification measures are
so plainly the direct descendants of historical punitive
schemes. It seems to me, moreover, that something more
than subjective intent alone must be shown to abrogate the
historical understanding that notification measures are
punitive. In other words, a legislature's simply denying that
it is operating outside of a shared cultural tradition does
not make it so.

This argument may be illuminated by flipping the coin
over, as it were, and looking at the issue by assuming that
the clearest proof standard applies in this case. In such
event, I believe that such proof exists. At the threshold, I
warn against placing too much emphasis on the meaning of
"clearest proof." As Flemming and its progeny make patent,
the standard is intended as a kind of warning to the federal
courts to give legislatures the benefit of the doubt. It is thus
consistent with familiar canons of statutory interpretation
and constitutional adjudication stating that legislatures are
rational bodies that intend to function within their powers
to enact lawful measures. In cases in which there is little
doubt, however, there is no benefit to give.

Here, there is little doubt. As Part I.C. makes clear,
notification measures have historically been considered
punitive. As Part I.D. makes clear, the particular design of

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notification under Megan's Law in no way contradicts this
history. And, as Part II makes clear, the effects of
notification measures suggest strongly their punitive
nature; the majority's efforts to dilute the Artway effects
prong, see supra Part II, are unavailing. Taking the
foregoing factors together, then, I conclude that sufficient
proof of an objective punitive intent motivating the
notification provisions of Megan's Law exists to negate the
subjective remedial intent.

IV. CONCLUSION

We should and do endeavor mightily to protect our
children from the dangers of the modern world. There is,
however, a background risk of violence from which we
simply cannot shield them. I believe that the New Jersey
legislature desperately wanted to do all that it could to
prevent the murder of any child at the hands of a released
sex offender. But, if a released sex offender is intent on
repeating his offense, there is no reason to believe he will
necessarily limit himself to his surrounding community (or,
for that matter, limit himself to his state).

Unfortunate though it may be, dangers to our children
can come from anywhere. People in the community,
especially parents, therefore justifiably warn children more
sternly about interacting with strangers, wandering too far
from home, staying out past dark, etc. There is no way to
determine how many crimes will be prevented by all of the
Megan's Laws throughout the country. I suspect, however,
that the change in protection secured by notification will be
marginal at best. Query whether this marginal change is
worth tampering with "an essential thread in the mantle of
protection that the law affords the individual citizen." Lynce
v. Mathis, ___ U.S. ___, 117 S. Ct. 891, 895 (1997)
(discussing that group of constitutional provisions
protecting against the retroactive application of new laws).

It is instructive to note that this issue bears a similarity
to the challenge the Supreme Court recently faced in Reno
v. ACLU, 65 U.S.L.W. 4715 (U.S. June 24, 1997) (No. 96-
511). There, underlying the Court's decision to strike down
key provisions of a statute purporting to rid the Internet of

101
obscenity is the notion that vital constitutional protections
must not be swept away in the understandable fervor to
protect our children. Basic constitutional rights
fundamental to ordered liberty, like the freedom of speech
and the right to be free from the retroactive application of
the laws, impose on each of us certain burdens. We will
remain a free people only so long as we accept those
burdens, even in the face of the very safety of our children.
Recognizing the rights of released sex offenders,
unpalatable though that may be, is one of them.

Although I am outvoted on the double jeopardy/ex post
facto issue, I am at least comforted by our holding that the
notification machinery, with all of its attendant
consequences, will not be triggered without the significant
safeguard of requiring the state to establish the case for
notification by clear and convincing evidence.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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