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State v. Burr7/29/1999
assessment or alternative moderating procedure which related the degree of public notification to the offender's risk of re-offense. Haun, 35 F. Supp.2d at 858. The Haun court determined a risk assessment procedure was not constitutionally required, although it observed "most, if not all other, sex offender registration and notification statutes" contain risk assessment or other moderating procedures. Id. at 858-59.
The court further observed:
"This Court is not aware of any sex offender registration and notification acts that have passed constitutional muster that do not contain procedural safeguards designed to ensure that the burden imposed on registrants does not exceed the burden inherent in accomplishment of such acts' goals." Id. at 859 (citations omitted).
[ ] Prior to the 1998 amendments, Utah's sex offender registration statute specifically directed the Department of Corrections to "establish security systems to ensure that only [those authorized by statute to receive registry information] may gain access to information" and enact regulations to instruct recipients of registry information concerning its appropriate use. Haun, 35 F. Supp.2d at 859 (citing Utah Code. Ann. § 77-27-21.5(2)(c) and 18(c) (1996 Supp.)). The court concluded although it was not its prerogative to dictate the form safeguards must take, "to the extent the statute is to be applied retroactively, they are constitutionally required." Id. The court held the 1998 notification amendments, as applied to offenders who completed all the terms of their sentence or probation prior to the amendment's effective date, violated the ex post facto clause "insofar as the statute fails to limit the extent of disclosure to the degree necessary to accomplish the statute's non-punitive goals of assisting in the investigation of sex-related crimes, apprehending offenders, and providing registry information to the possible victims of recidivist offenders." Id.
[ ] The Conclusion to be drawn from these cases is that a notification provision risks being "punitive" and therefore unconstitutional if it: provides unrestricted availability of registry information to the public, lacks restrictions as to what and where the information can be disseminated, or establishes an overly inclusive list of crimes triggering the registration requirements. The infirmities identified in these cases are all apparent in N.D.C.C. § 12.1-32-15 (1997).
[ ] On the other hand, cases rejecting ex post fact challenges to community notification provisions have generally done so because the particular statute has tailored the extent of public notification or dissemination to the offender's risk of re-offense and danger to the public. In Doe v. Pataki, 120 F.3d 1263, 1281-82 (2nd Cir. 1997), the court rejected a challenger's argument that the excessive sweep of New York's sexual offender notification provisions evidenced the registration statute's punitive effect.
[ ] The court concluded, while the law covered a number of offenses "that appear to present a far less compelling need for community notification than offenses like child molestation," the law was not excessively broad so as to constitute punishment because it contained "a number of moderating provisions capable of greatly limiting the extent of notification or even of relieving the offender from notification altogether." Doe v. Pataki, 120 F.3d at 1282. For instance, the registration law called for a risk assessment based on objective criteria, all of which were relevant to the degree of risk presented by each registrant. Id. (citing N.Y. Correct. Law § 168-l(5)).
Moreover, low risk and first time offenders were allowed to petition the c
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