Author: Sarah Gad

LAWS 43229
University of Chicago Law School

Three Tiers Do Not Fit All: The Constitutional Deficiencies of Sex Offender Super-
Registration Schemes

I. History of Sex Offender Registries

A. The Wetterling Act & Sex Offender Registries (1994)

Jacob Wetterling was kidnapped from his hometown of Saint Joseph, Minnesota

at the age of eleven.1 The young boy’s disappearance garnered national attention and

sparked outrage. At the time of Jacob’s disappearance in 1994, there was no federal law

governing sex offender registration and notification in the United States.2 Met with

mounting public pressure, Congress hastily enacted the Jacob Wetterling Crimes Against

Children and Sexually Violent Offenders Act (the “Wetterling Act”), 42 U.S.C. § 14071.3

The Wetterling Act, which was enacted as part of the Federal Violent Crime Control and

Law Enforcement Act of 1994, was the first piece of federal legislation that required

states to create and maintain registries of individuals convicted of violent sexual offenses

or crimes against children.4

The purpose of the Wetterling Act was to “establish a baseline standard for states

to govern sex offenses.”5 The Wetterling Act delineated between “sex offenders,” and
1
Norta Hertel, “Jacob Wetterling Resource Center marks 30 years protecting children,”St. Cloud
Times, February 5, 2020, available at:
https://www.sctimes.com/story/news/local/2020/02/05/jacob-wetterling-resource-center-marks-
30-years-protecting-children/4649476002/
2
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994,
H.R. 3355, 103rd Cong. § 2 (1994)
3
Legislative History of Federal Sex Offender Registration and Notification, SMART Office, available at:
https://smart.gov/legislation.htm
4
Id.
5
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994,
H.R. 3355, 103rd Cong. § 2 (1994)
“sexually violent predators (SVPs); SVPs were required to verify their addresses on a

quarterly basis for the rest of their lives, and all other sex offenders were required to

verify their addresses annually for a period of at least ten years.6 The Wetterling Act,

unlike some of its many legislative successors, did not require states to disseminate any

of the information beyond discretionary public notification procedures that were deemed

“necessary” to protect the public.7

B. Megan’s Law & Community Notification (1996)

In 1994, seven-year old Megan Kanka was raped and murdered by her neighbor in

Hamilton Township, New Jersey.8 One day later, Megan’s killer, a convicted sex

offender, confessed to kidnapping, raping, and strangling her with a belt.9 The horrific

death of another child again outraged the nation.10 Her mother, Maureen Kanka, testified

before the New Jersey General Assembly that registration under the Wetterling Act was

insufficient for community protection and, had she “known a sex offender lived across

the street, Megan would still be alive.”11 In response, the New Jersey General Assembly

passed a series of bills in 1995 requiring community notification of registered sex

offenders moving into a neighborhood and automatic life in prison for repeat sex

offenders.12

6
Id.
7
Harris, A. J.; Lobanov-Rostovsky, C.; Levenson, J. S. (2 April 2010). "Widening the Net: The Effects of
Transitioning to the Adam Walsh Act's Federally Mandated Sex Offender Classification System"
8
Rich Schapiro, “EXCLUSIVE: Parents of little girl who inspired Megan's Law recall brutal rape,
murder of their daughter 20 years later,” New York Daily News, Juy 27, 2014, available at:
https://www.nydailynews.com/news/crime/parents-girl-inspired-megan-law-recall-tragedy-
article-1.1881551
9
Id.
10
Id.
11
Karen J. Terry, Sexual Offenses and Offenders: Theory, Practice, and Policy 2nd Edition, p. 217,
Wadsworth Publishing (2013)
12
Id at 216-27.
 The New Jersey law became a model for federal legislation known as “Megan’s

Law,” 42 U.S.C. § 14071(d).13 Megan’s Law was signed into federal law as an

amendment to the Wetterling Act in 1996.14 The Megan’s Law amendment mandated

public disclosure of information about registered sex offenders and provided that

information collected under state registries could be disclosed for any purpose permitted

under state law.15 Prior to its passage, only 5 states were in compliance with registry

provisions of the Wetterling Act; however, by August of 1995,16 all 50 states had already

enacted some variation of Megan’s Law with a community notification procedure.17

While the Wetterling Act and Megan’s Law mandated state sex offender registries

and community notification proceures, the information to be included in the registries and

the handling of community notification was left up to the states18.

C. Enhanced Registration and Notification Schemes: The Adam Walsh Child

Protection and Safety Act of 2006

In the decade following the Wetterling Act, Congress passed several amendments

and new laws to clarify and enhance provisions of the bill. In the late 1990s and early

2000s, every high-profile murder of a sympathetic victim provoked haphazard legislation

from a government eager to assuage an outraged public—each one more punitive and

constitutionally questionable than the next. Every new bill was characterized by more

13
Id. at 217
14
Megan’s Law of 1996, H.R. 2137, 104th Cong. §1 (1996)
15
Id.
16
Office of Justice Programs (2012). "Chapter 8: Sex Offender Management Strategies". Office of
Justice Programs - Sex Offender Management and Planning Initiative (SOMAPI), available at:
https://www.smart.gov/SOMAPI/
17
Id.
18
Megan’s Law of 1996, H.R. 2137, 104th Cong. § 2 (1996); "Clinton Signs Tougher "Megan's Law"".
All Politics. CNN. 17 May 1996, available at:
http://edition.cnn.com/ALLPOLITICS/1996/news/9605/17/clinton.sign/index.shtml
intensive registration schemes, enhanced penalties, and little sympathy for the difficulties

individual registrants face navigating what is required of them under the laws.

In 2005, nine-year-old Jessica Lunsford was raped and murder by a registered,

convicted sex offender.19 In response to the characteristic outrage following such horrific

crimes against children, Florida lawmakers introduced Jessica’s Law. Key provisions of

the law included a mandatory minimum sentence of twenty-five years in prison, lifetime

Global Positioning System (GPS) monitoring for repeat offenders and an expansion of

statutory guidelines of what constitutes “lewd behavior.”20

Under the new provisions set out in Jessica’s Law, a convicted sex offender could

be sentenced to a lifetime of electronic monitoring for urinating in public.21 Several states

passed their own variation of Jessica’s Law that effectively allowed for a lifetime of GPS

tracking of “repeat offenders.”22 Jessica’s Law of 2005 never made it into federal law,

ostensibly because Congress was shaping up to pass the latest version of its ever-

broadening sex offender registration schemes.

Though by 2006 all 50 states had already implemented their own sex offender

registry and notification procedures, an estimated one out of five sex offenders (100,000

out of half a million) in the United States were declared “missing” and unregistered as

required by federal law.23 Congress attributed this registration gap to the leeway it had

19
Mark Szakonyi, "Local attorney plans suit on behalf of Lunsford family," Jacksonville Business
Journal, February 27, 2008, (available at:
https://www.bizjournals.com/jacksonville/stories/2008/02/18/daily31.html).
20
Terry Aguayo, “Sex Offender Guilty of Rape and Murder of Florida Girl,” New York Times, Mar. 8,
2007, available at: https://www.nytimes.com/2007/03/08/us/08verdict.html.
21
Sexual Predator Punishment and Control Act: Jessica’s Law, Prop. 83, § 22, 2006 Cal. Legis. Serv.
2155 (West).
22
Id.
23
Bureau of Justice Statistics, “National Conference on Sex Offender Registries,” April 2004, available
at <bjs.gov/content/pub/pdf/Ncsor.pdf>.
given to states when it came to enforcing registration and notification laws.24 For

instance, some states implemented risk assessment procedures and only released

information to the public about offenders that were deemed “high risk” to public safety.

Other states, like South Carolina—with arguably the most punitive set of laws—failed to

perform any sort of risk assessment and released information about all registrants,

regardless of the gravity of the offense or risk of reoffending.25

In July of 2006, Congress passed the Adam Walsh Child Protection and Safety

Act (AWA), 42 U.S.C. §16911 et seq., in an effort to reduce inter-state variations in

registration and notification schemes.26 The AWA was intended to “established uniform

and comprehensive sex offender registration and notification requirements.”27 In

particular, the AWA identified mandatory information for states to include in their public

offender registries, required periodic updates of registry information by convicted sex

offenders, and standardized information within each state registry to facilitate sharing

between jurisdictions and to the general public.28 Moreover, the AWA mandated that

registration and notification requirements be based solely on convictions, but could not

be amended by mitigating factors or risk assessment scores.29 South Carolina’s

overinclusive and excessive sex offender registry and notification (SORN) became the

national model for federal SORN legislation.

24
Zgoba et al., The Adam Walsh Act: An Examination of Sex Offender Risk Classification Systems,
Sexual Abuse: A Journal of Research and Treatment, 2015, available at
<https://nv.womenagainstregistry.org/wp-content/uploads/2016/07/2015-Zgoba-AWA.pdf>.
25
Id.
26
The Adam Walsh Child Safety and Protection Act of 2006, H.R. 4472, 109th Cong. § 2 (2006).
27
SMART Office, “Legislative History of Federal Sex Offender Registration and Notification,” DOJ,
2016, available at: https://smart.gov/legislation.htm.
28
Id.
29
See supra 23
 The AWA completely rewrote federal standards for sex offender registration.

Title I of the AWA—otherwise known as Sex Offenders Registration Notification Act

(SORNA)—established national minimum registration periods based on the level

seriousness of the offense and risk of recidivism for convicted offenders who were 14 or

older.30 In particular, SORNA established three tiers of offenders: Tier III offenders (the

most serious tier) were sentenced to lifetime mandatory registration and notification in

jurisdictions in which they live, work, and attend school and were required to update their

whereabouts every three months;31 Tier II offenders were required to update their

whereabouts every six months for a period of twenty-five years;32 Tier I offenders were

required to update their whereabouts annually for a period of fifteen years.33 The AWA

also required states to publicly disclose information about minors convicted of Tier II and

III offenses.34 Under SORNA, juveniles are treated the same as adults when convicted of

serious Tier III offenses, including rape and aggravated indecent assault.35

In addition to increasing the duration of registration periods, SORNA also

enhanced individual penalties for failure to register.36 It required all jurisdictions to

release information about every registrant, regardless of the risk of re-offending, and

expanded the definition of "jurisdiction" to include 212 federally recognized Indian

30
Jamie Markham, “SORNA Tier Chart,” North Carolina Criminal Law Journal, June 2017, <available
at: https://nccriminallaw.sog.unc.edu/sorna-tier-chart/>.
31
Jamie S. Henderson, “Estimating the Impacts of SORNA in Pennsylvania: The Potential
Consequences of Including Juveniles,” National Criminal Justice Reference Service, September 2015,
<available at: https://www.ncjrs.gov/pdffiles1/nij/grants/249147.pdf>.
32
Id. at 11, 13.
33
Id. at 13-14.
34
The Adam Walsh Child Safety and Protection Act of 2006, H.R. 4472, 109th Cong. § 2 (2006).
35
See supra 27-28.
36
See supra 33.
tribes.37 It also expanded the number of sex offenses that must be captured by registration

jurisdictions to include all state, territory, tribal and federal sex offense convictions, as

well as certain foreign convictions.38 Finally, it included a broad “residual clause” that

effectively allowed courts to arbitrarily expand the definition of “sex crimes” requiring

registration.39

The AWA also imposed numerous changes in the areas of federal criminal law

and procedure: it enhanced the mandatory minimum terms of imprisonment and other

penalties for many federal sex offenses;40 established a civil commitment procedure for

federal sex offenders;41 authorized random searches as a condition for sex offender

probation and supervised release;42 permitted the victims of state crimes to participate in

related federal habeas corpus proceedings; and eliminated the statute of limitations for

certain sex offenses and crimes committed against children.43 The AWA also established

a mandatory minimum period of incarceration of twenty-five years for kidnapping a

child, and thirty years for sexual intercourse with a child younger than twelve or sexually

assaulting an adolescent between thirteen and seventeen years old.44

The AWA had a profound impact on state SORN schemes, expanding some state

registries by as much as 500%. The inflation of statewide registries came as no surprise,

37
SMART Office, “Legislative History of Federal Sex Offender Registration and Notification,” DOJ,
2016, available at: https://smart.gov/legislation.htm.
38
Id.
39
Davidson, Lee (2006). "Bush signs, Hatch praises new Child Protection Act". Deseret Morning
News. July 10, 2007, available at :https://www.deseret.com/dn/view/0,1249,640198190,00.html.
40
“H.R. 4472 — Adam Walsh Child Protection and Safety Act of 2006," Legislative Notice. U.S. Senate
Republican Policy Committee, July 20, 2006, (available at:
https://web.archive.org/web/20070703072051/http://rpc.senate.gov/_files/L49HR4427ChldprotB
B072006.pdf#search='H.R.%204472').
41
Id. at 3-4.
42
Id. at 4.
43
Id.
44
Id. at 5.
given the continuously broadening scope of registerable offenses, expansion of

registrable jurisdictions, and the broad “residual clause” that gave judges the discretion to

turn practically any offense into a registerable one.45 The continuous expansion of SORN

laws has led to children as young as eight being placed on the registry for experimenting

with their peers46 and lifelong GPS monitoring for public urination.47

The legislative history of the AWA repeatedly underscores the need for

“protection of children,” “public safety,” and “public interest.” However, the intensifying

SORN laws have done little to promote these objectives.48 As discussed below, the

expansion of state registries has not been met with a discernible reduction in sexual

offenses or recidivism rates among convicted offenders.49 Moreover, there is substantial

evidence that registration schemes are counterproductive, even causing more harm than

good.50 Vigilante justice is a realistic concern that results from publicly labeling

individuals as sex or violent offenders and disseminating their most personal information

on the Internet. Laws vilifying people convicted of sex offenses often lead to harassment,

ostracism and even violence against former offenders.51 Since these overly inclusive,

excessively punitive registration schemes have not proven successful in improving public

safety, the value of these laws is seriously questionable.

45
“H.R. 4472 — Adam Walsh Child Protection and Safety Act of 2006," Legislative Notice. U.S. Senate
Republican Policy Committee, July 20, 2006.
46
Juvenile Sex Offender Registry (SORNA), Issues: Juvenile Law Center, March 2019, available at:
https://jlc.org/issues/juvenile-sex-offender-registry-sorna
47
Supra Zgoba et al., The Adam Walsh Act: An Examination of Sex Offender Risk Classification
Systems, Sexual Abuse: A Journal of Research and Treatment, 2015, available at
<https://nv.womenagainstregistry.org/wp-content/uploads/2016/07/2015-Zgoba-AWA.pdf>.
48
Id.; SMART Office, “Legislative History of Federal Sex Offender Registration and Notification,” DOJ,
2016, available at: https://smart.gov/legislation.htm.
49
Supra 47.
50
Human Rights Watch, “US: Sex Offender Laws May Do More Harm Than Good End Registration of
Juveniles, Residency Restrictions and Online Registries,” September 2007, available at:
https://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-good.
51
Id.
 II. SORNA Registration and Community Notification Procedures Are Excessive
and Not Rationally Related to Their Non-Punitive Purpose, and Thus
Unconstitutional

The cornerstone of the American criminal justice system is the constitutional

protections attached to punitive laws. However, those constitutional protections have thus

far not been extended to individuals to whom SORN laws apply, which can be attributed

in large part to a Supreme Court case, Smith v. Doe. In that case, the Court, while

specifically examining the Alaska Sex Offender Registry Act, considered whether sex

offender registration schemes violated Ex Post Facto principles by applying greater

retroactive punishment to previously convicted and registered sex offenders.52 The Smith

Court upheld the constitutionality of sex offender registration schemes by labeling them

“civil regulations,” leaving them unencumbered by the substantive and procedural

requirements traditionally associated with criminal laws.53 Pursuant to Smith, courts have

readily found that legislatures intended registration schemes to be civil remedies and not

punishment requiring constitutional protections.

Though the Smith Court conclusively deemed registration schemes “civil,” the

dramatic changes in registration laws since that decision call into question whether the

holding is still applicable to current SORN laws. The Supreme Court established a test

for distinguishing between civil remedies and criminal punishments in Kennedy v.

Mendoza-Martinez.54 The “intent-effects” test established by Mendoza-Martinez, which

has been widely acknowledged by courts, includes a two-factor inquiry for making the

civil vs. criminal determination. The first step of the Mendoza-Martinez inquiry is to

resolve whether the government intended the statute to be a civil remedy or a

52
Smith v. Doe, 538 U.S. 84 (2003).
53
Id. at 84.
54
Kennedy v. Mendoza-Martinez, 372 US 144 (1963).
punishment; if determined to be civil, the second step of the inquiry is whether, despite

its regulatory aims, the law is so punitive that in fact it “may not be viewed as civil in

nature.”55 The intent-effects test emphasizes that, even if a legislature intends a statute to

serve a purpose other than punishment, the statute may nonetheless be deemed to impose

a criminal penalty if the statutory scheme is “so punitive either in purpose or effect . . . as

to transform what was clearly intended as a civil remedy into a criminal penalty.”56

Mendoza-Martinez identified seven factors to guide the determination of whether

a law is punitive in nature despite being labelled as civil: (1) Whether 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.57

A. SORNA Registration Schemes Are Punitive Because They Impose

Restraints on the Offender

The Smith Court actually helped shape the inquiry on the first Mendoza-Martinez

factor regarding what amounts to a disability or restraint. Using traditional definitions of

punishment, the Smith Court posed three questions to determine whether the law imposed

55
Id.
56
See United States v. Halper, 490 U.S. 435, 447–48 (1989) (concluding that an excessive fine was
punishment because there was no rational relationship to the remedial purpose of compensating the
government); United States v. Juvenile Male, 590 F.3d 924, 940–41 (9th Cir. 2009) (determining that
the public dissemination of a juvenile sex offender’s information is punitive in effect because of the
high degree of confidentiality afforded juveniles).
57
Mendoza-Martinez, 372 US (1963); see also People v. Logan, 705 N.E.2d 152, 158–60 (Ill. App. Ct.
1998) (applying the MendozaMartinez test, which it labeled the “intent-effects test,” to determine
whether a sex offender registration statute was constitutional).
a restraint or disability: (1) whether the law involves physical restraint; (2) if no physical

restraint, whether the law involves a restriction on activities that could otherwise be

considered restraint; and (3) if no restraint, either physically or effectively, whether the

sanctions imposed involve the type of shame and humiliation traditionally associated

with shaming punishments from colonial times.58 The Court identified traditional

shaming punishments to include: (1) banishment,59 (2) loss of freedom of movement,60 (3)

public shame and humiliation,61 (4) occupational or housing disadvantages,62 and (5)

conditions analogous to probation or supervised release.63

The majority in Smith ultimately held that the Alaska Sex Offender Registry Act

was not punitive because it did not present any of the identified factors to a sufficient

degree. Today, however, overbroad and over-inclusive registration schemes include each

of the five types of traditional shaming punishments identified by the Court. Thus, SORN

laws in their current form impose restraints on offenders, rendering them punitive

criminal penalties.

1. SORN Laws Banish Sex Offender Registrants, which amounts to a

criminal penalty.

Current SORN laws have operated to effectively banish sex offender registrants,

which amounts to a punitive restraint on registrants. The Smith Court declared

banishment to be the most serious of colonial shaming punishments.64 Historical

banishment involved “[expulsion] from the community,” where “[the offenders] could
58
Smith, 538 U.S. 84, 99 (2003).
59
Id. at 99–101.
60
Id. at 99–100.
61
Id. at 99.
62
Id.
63
Id. at 100.
64
Id. at 98 (majority opinion).
neither return to their original community nor, reputation tarnished, be admitted easily

into a new one.”65 The Smith Court found that sex offender registrants were not

effectively banished from their communities; registrants were “free to move where they

wish and to live and work as other citizens, with no supervision.”66 This assumption is no

longer accurate given the sweeping nature of current residency restrictions pinned to

SORN. Today, in the vast majority of communities, convicted registrants are not free to

live or work where they wish.67 The Smith Court’s observation that Alaskan registrants

were free to move about the state only underscores how quickly the landscape of

registration schemes has escalated.68 Stories corroborate the assessment that offenders are

frequently made homeless or transient because of residency restrictions.69 This amounts

to modern day banishment, which Smith clearly identified as the most serious traditional

shaming punishment. This type of restraint is, thus, punitive and, to maintain consistency

with Supreme Court precedent, should be deemed a criminal penalty.

2. SORN laws take away registrants’ freedom or movement, which amounts

to a criminal penalty.

In addition to banishment, convicted sex offenders suffer serious restrictions on

their freedom of movement. The introduction of residency restrictions and GPS

65
Id.
66
Id. at 101; see Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (determining that Iowa’s residency
restrictions did not affect banishment because they only restricted where offenders may reside as
opposed to expelling them from communities or prohibiting access to areas near schools or child-
care facilities).
67
Human Rights Watch, “US: Sex Offender Laws May Do More Harm Than Good End Registration of
Juveniles, Residency Restrictions and Online Registries,” September 2007, available at:
https://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-good.
68
See, Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 755 (Ga. 2007) (“[I]t is apparent that there is no
place in Georgia where a registered sex offender can live without being continually at risk of being
ejected.”).
69
Wendy Koch, More Sex Offenders Transient, Elusive: Homeless Life May Increase Crime Risk, USA
Today, Nov. 19, 2007, at A1 (“Residency restrictions are the linchpin for causing homelessness
among sex offenders.”).
monitoring systems have affected offenders’ ability to integrate into communities, find

stable homes, and obtain steady employment.70 GPS tracking became embedded in SORN

after Jessica’s Law of 2005, and, thus, was not included in the Smith-era registration

schemes. This is yet another testament to the quick escalation of registration schemes.

The burdens associated with periodic registration became significantly more intrusive

with the advent of GPS tracking.71 While in-person registration is “continuing, intrusive,

and humiliating,” a requirement that a GPS device be permanently attached to an

offender’s person is “dramatically more intrusive and burdensome.”72 A GPS monitoring

device affects an offender’s ability to travel by airplane; to bathe, enter buildings; drive to

the store; or even check their own mail.73

Residency restrictions and exclusion zones impose yet another affirmative

disability on registered offenders.74 Residency restrictions have an almost unbearable

impact on a registered sex offender’s ability to move freely.75 Finally, the threat of

eviction hangs over the heads of registered offenders because there is always the potential

that the offender will be forced from any new residence whenever a third party chooses to

establish within the exclusion zone a business that statutorily bars sex offenders.76

70
See supra 70.
71
Doe v. State, 189 P.3d 999, 1009 (Alaska 2008) (describing registration requirements as
“significant and intrusive”); see also Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009)
(acknowledging the burdensome nature of in-home personal visitation to verify an offender’s
address).
72
Commonwealth v. Cory, 911 N.E.2d 187, 196 (Mass. 2009).; see also State v. Letalien, 985 A.2d 4, 24–
25 (Me. 2009) (recognizing the burden associated with the requirement to register in-person every
ninety days).
73
See State v. Bowditch, 700 S.E.2d 1, 4 (N.C. 2010).
74
See supra note 70.
75
See, Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 755 (Ga. 2007) (“[I]t is apparent that there is no
place in Georgia where a registered sex offender can live without being continually at risk of being
ejected.”).
76
Id.; see also supra note 70.
 These limitations that GPS monitoring and residency restrictions impose on a sex

offense are so severe that they inhibit his freedom of movement. Since loss of freedom of

movement is a traditional shaming punishment identified by Smith, it is clearly a punitive

restraint on offenders. In fact, the Massachusetts Supreme Court specifically determined

that GPS monitoring is punitive in effect because it is imposed as part of an offender’s

sentence for certain crimes.77 Accordingly, the limitations on offender’s freedom of

movement that is the hallmark of SORN compel the conclusion that these laws are

criminal penalties.

3. SORN punishes offenders with public shame and humiliation

Compelling arguments for public dissemination of some information about some

registrants do exist. However, wholesale dissemination of information, which leads to

disenfranchisement and disqualification from employment and housing opportunities,

raises the question of whether the public shame and humiliation registrants suffer are too

punitive to disregard. Despite the long lineage of Supreme Court jurisprudence that sex

offender registration schemes are nonpunitive civil regulations,78 courts nonetheless

recognize that these laws serve to shame, isolate, and ostracize the convicted offender.79

Registrants now suffer the types of permanent stigma occasioned in colonial times.80
77
See Commonwealth v. Goodwin, 933 N.E.2d 925, 935 (Mass. 2010)(explaining that when
registration is required as part of a defendant’s sentence, retroactive application of new registration
requirements, like additional conditions of probation, is an unconstitutional modification of, and
enhancement to, the offender’s criminal sentence); see also State v. Letalien, 985 A.2d 4, 20 (Me.
2009) (declaring that registration was required as “an integral part of the criminal sentencing
process and resulting sentence” for the offender’s crime, so that retroactive application of SORNA
made more burdensome the punishment for a crime after its commission).
78
See Smith v. Doe, 538 U.S. 84, 96 (2003); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003); Kansas
v. Hendricks, 521 U.S. 346, 369 (1997); Femedeer v. Haun, 227 F.3d 1244. 1253 (10th Cir. 2000).
79
Smith v. Doe, 538 U.S. at 99 (explaining that it must be acknowledged that notice of a criminal
conviction subjects the offender to public shame, the humiliation increasing in proportion to the
extent of the publicity).
80
Id. at 98 (“It must be acknowledged that notice of a criminal conviction subjects the offender to
public shame, the humiliation increasing in proportion to the extent of the publicity. And the
geographic reach of the Internet is greater than anything which could have been designed in colonial
Using the analytical framework from Smith, the town square has been replaced by the

Internet, and each time an offender’s picture is posted online, that registrant is subject to

“face-to face shaming,” as described in Smith.81 For one offender, who had been

convicted in 1990 of one count of indecent liberties with an undercover police officer and

fined sixty-two dollars, the prospect of automatic registration as a tier I offender caused

him such severe embarrassment and humiliation that this offender “seriously considered

suicide rather than face the humiliation and disgrace of registering as a sex offender.”82

SORN public dissemination provisions clearly cause offenders public shame and

humiliation, which is a traditional shaming punishment identified by Smith as a form of

restraint. This provides further evidence that SORN laws are punitive and, thus, should be

treated as criminal penalties.

4. SORN creates employment and housing disadvantages, similar to

criminal disenfranchisement

Spiraling amendments and the disenfranchising impact of registration schemes

have severely restricted the registrant’s opportunity for employment and housing.83 This

represents a drastic change in SORN schemes since 2003 when the Smith Court asserted,

“The Act does not restrain activities sex offenders may pursue but leaves them free to

change jobs or residences.”84 Changing jobs or relocating residences at will is no longer

times”).
81
Id. at 99.
82
Doe v. Att’y Gen., 686 N.E.2d 1007, 1009–10 (Mass. 1997) (“He would be embarrassed and
humiliated if his children, friends, associates, and co-workers knew that he has had homosexual
experiences.”)
83
See supra note 71; Human Rights Watch, “US: Sex Offender Laws May Do More Harm Than Good
End Registration of Juveniles, Residency Restrictions and Online Registries,” September 2007,
available at: https://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-
good.
84
Doe v. Miller, 405 F.3d 700, 721 (8th Cir. 2005) (acknowledging that Iowa’s residency restrictions
were more disabling than those at issue in Smith v. Doe, but finding the statute nonpunitive in part
because the restrictions at issue were “certainly less disabling” than civil commitment schemes);
an option under the escalating burden of registration schemes. Residency restrictions

have expanded to such a degree that many parts of the country are off-limits to the

offender.85 The collateral consequences that accompany public registries have made

employment options equally scarce.86 These obvious disadvantages in seeking housing or

employment satisfy the Smith definition of traditional shaming punishments. Thus, the

effects of SORN on sex offenders’ access to housing and employment is a punitive

restraint amounting to a criminal penalty.

5. SORN imposes conditions similar to probation or supervised release,

which amounts to a criminal penalty

The final type of traditional shaming punishment identified by the Smith Court is

when an offender is subjected to conditions similar to probation or supervised release.

Under the Mendoza-Martinez framework, whether a law promotes traditional aims of

punishment, such as retribution and deterrence, can help determine whether a law is

punitive.87 In considering whether the obligation to report regularly to local law

enforcement was similar to conditions of supervised release, the Court concluded that

“certain hallmarks associated with probation or supervised release” were not present in

the Alaska registration scheme.88 For instance, the registration scheme did not include

mandatory conditions or the potential for revocation of freedom in case of infraction, nor

Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir. 2000) (finding that registrants were “free to live
where they choose, come and go as they please, and seek whatever employment they may desire.”).
85
See Berlin v. Evans, 923 N.Y.S.2d 828, 835 (Sup. Ct. 2011) (acknowledging that the registrant, a tier
I offender, was effectively banished from living in Manhattan); See also Richard Tewksbury, Exile at
Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 Harv.
C.R.-C.L. Rev. 531 (2007).
86
See supra 87.
87
Kennedy v. Mendoza-Martinez, 372 U.S. 144, at 168, 182–83 (1963) (reasoning that the legislative
history, which invited the inference that Congress’s purpose in passing the law at issue was to inflict
effective retribution against draft evaders, confirmed the conclusion that the law was punitive in
nature).
88
Smith, 538 U.S. at 101.
did it require as high a level of in-person registration or frequency of registration

associated with probation or supervised release.89 In fact, this lack of in-person

registration effectively bolstered the Court’s conclusion that registration was not

sufficiently similar to supervised release.90

Similar to the other assumptions underlying the outcome of Smith, this one no

longer applies. Offenders are not “free to move where they wish and to live and work as

other citizens, with no supervision.”91 Rather, current registration burdens look like

probation or supervised release; they require registration in person as often as every

ninety days, as well as a variety of other mandatory actions that, if not met, threaten the

registrant with loss of freedom.92 The significant similarities in the level of supervision

under SORN and probation demonstrates that SORN applies traditional shaming and

thus, is a punitive restraint amounting to a criminal penalty.

Contemporary registration schemes clearly exhibit all of the indices of shaming

and punishment that the Smith Court found were lacking in the Alaska Sex Offender

Registry Act. The Court’s observations in 2003 only underscore the rapid escalating

burdens imposed by SORNA and its attendant legislation. As outlined above, registration

schemes exhibit all of the forms of traditional punishments of shaming identified by

89
Lower courts have relied on the Court’s conclusion in Smith v. Doe. See, e.g., Rodriguez v. State,
S.W.3d 60, 70 (Tex. Crim. App. 2002) (contrasting numerous in-person registration requirements
with the Texas statute, which, for first-time offenders, requires only one registration per move and
registration once per year); McCabe v. Commonwealth, 650 S.E.2d 508, 511 (Va. 2007) (concluding
that no liberty interest was affected because of lack of in person registration). ee
90
Smith v. Doe, 538 U.S. at 101.
91
State v. Williams, 952 N.E.2d 1108 (Ohio 2011).
92
Commonwealth v. Goodwin, 933 N.E.2d 925, 927 (Mass. 2010) (concluding that a court may impose
GPS monitoring as an additional condition of a registrant’s probation only if the registrants violates
any of the original conditions); State v. Williams, 952 N.E.2d 1108,1111 (Ohio 2011) (noting that
failure to comply with certain registration requirements will subject a sex offender to criminal
prosecution).
Smith. To this end, it is hard to imagine that any Court could reasonably find that

modern-day registration schemes are not punitive.

B. SORNA Registration Schemes are Excessive

The final Mendoza-Martinez factor for determining whether a law is punitive in

nature asks whether the law is excessive in relation to its stated regulatory purpose.93 In

particular, if the means chosen to carry out a law’s non-punitive purpose are excessive,

the law may be deemed punitive in its effect.94 Courts recognize that this is the most

critical of the seven factors.95

Although courts have consistently found that registration and notification schemes

are rationally connected to their proposed goal of “promoting public safety,”96

fundamental changes in the landscape, scope, or breadth of registration schemes threatens

the historic outcome of this final factor. Arguably the most pertinent change as far as

excessiveness is concerned is obliteration of the individualized risk assessment. The risk

assessment, which was a mainstay of the previous generation of sex offender schemes,97

has been replaced by offense-based assessment, where individuals are assigned to tiers
93
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963); see Smith v. Doe, 538 U.S. at 97
(majority opinion).
94
Smith v. Doe, 538 U.S. at 105 (“The question is whether the regulatory means chosen are
reasonable in light of the non-punitive objective.”); see Doe v. State, 189 P.3d 999, 1017 (Alaska
2008) (“We use ‘means’ here to include the scope of the statute and the obligations it imposes on
those subject to it and what the state can or must do in enforcing it.”).
95
Kellar v. Fayetteville Police Dep’t, 5 S.W.3d 402, 409 (Ark. 1999) (“It is the seventh and final factor
which weighs most heavily in the balance in Arkansas, as in most other states: the question of
whether the Act is excessive in relation to its alternative purposes.”); State v. Myers, 923 P.2d 1024,
1041 (Kan. 1996) (“This is the key factor in our analysis.”); Rodriguez v. State, 93 S.W.3d 60, 75 (Tex.
Crim. App. 2002) (“[O]f all of the Kennedy factors, this factor cuts most directly to the question of
which statutes cross the boundaries of civil sanctions, and which do not.”); see also Smith v. Doe, 538
U.S. at 116 (Ginsburg, J., dissenting) (“What ultimately tips the balance for me is the Act’s
excessiveness in relation to its non-punitive purpose.”)
96
SMART Office, “Legislative History of Federal Sex Offender Registration and Notification,” DOJ,
2016, available at: https://smart.gov/legislation.htm.
97
See State v. Ellison, 2002-Ohio-4024U, ¶ 22 (Ct. App.) (explaining that prevailing law at the time of
the decision permitted a trial or sentencing court to employ factors in order to determine whether to
classify an offender as a sexual predator).
based on the crimes for which they were convicted.98 In many states, courts are no longer

able to determine whether a registrant poses a risk to society.99

In her dissent in Smith v. Doe, Justice Ginsburg expressed caution regarding the

constitutionality of sex offender registration laws that do not provide for individualized

assessment nor offer the registrant the opportunity to demonstrate rehabilitation.100

However, in Connecticut Department of Public Safety, which was handed down the same

day as Smith v. Doe, the Court unanimously ruled that Connecticut's decision to

summarily include all offenders on a public registry—without regard to an individualized

assessment of risk to public safety—was a constitutional one.101 In particular, the Court

found that a registrant’s desire to prove that he was not dangerous was of “no

consequence under Connecticut’s Megan’s Law.”102

The failure to provide for individualized assessment of the risk of reoffense is but

one aspect of registration schemes that renders them excessive. Today’s registration laws

include unreasonable reporting and notification requirements that apply to individuals

convicted of a broad spectrum of ever-changing crimes.103 When viewed in a vacuum, the

98
See Doe v. State, 189 P.3d at 1017 (“Offenders cannot shorten their registration or notification
periods even on the clearest determination of rehabilitation . . . .” (quoting Smith v. Doe, 538 U.S. at
117 (Ginsburg, J., dissenting))); Commonwealth v. Baker, 295 S.W.3d 437, 446 (Ky. 2009)
(acknowledging that Kentucky’s residency restrictions apply to certain offenders without any
consideration as to whether they might be a threat to children or to public safety).
99
See Doe v. State, 189 P.3d at 1017 n.143 (“[Alaska’s registration scheme] does not authorize a court
to determine that a registrant poses no risk to society and consequently to altogether relieve him of
registration and disclosure obligations.”); People v. Hofsheier, 129 P.3d 29, 34 (Cal. 2006) (noting that
the duty to register as a sex offender cannot be avoided through a plea bargain or through the
exercise of judicial discretion).
100
Smith, 538 U.S. at 117 (Ginsburg, J., dissenting) (“And meriting heaviest weight in my judgment,
the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten
their registration or notification period, even on the clearest demonstration of rehabilitation or
conclusive proof of physical incapacitation.”).
101
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003).
102
See Conn. Dep’t of Pub. Safety, 538 U.S. at 3–4.
103
V. Quinsey, et al., Assessing Dangerousness: Violence by sexual offenders, batterers, and child
abusers (pp. 114-137), Thousand Oak Publications (2009).
requirements may seem rationally related to public safety, but when viewed in totality,

contemporary registration schemes paint a picture of excessiveness. As Alaska’s

Supreme Court noted, “It is significant that the registration and re-registration

requirements are demanding and intrusive and are of a long duration.”104

Convicted sex offenders are required to register for longer periods of time,

required to provide more information than originally contemplated by the first wave of

registration statutes, and are subject to extensive and automatic notification

requirements.105 For instance, imposing registration and notification requirements on all

convicted sex offenders communicates to the public that each of those offenders,

regardless of the gravity or severity of the offense, poses a substantial risk to society.106

Because registration laws and community notification statutes are overinclusive, they are

rendered excessive and consequently punitive.

C. Registration Schemes Are Not Related to Their Goals

Preventing sex offenders from reoffending has been repeatedly touted as the goal

of SORN schemes. Recidivistic sex crimes are a genuine public concern. There are

165,000 people serving prison sentences for sex crimes on any given day, and 86% will

be released into their communities at some point.107 Certain risk factors have been

identified that substantially increase the likelihood that one will reoffend—among them

104
See Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).
105
State v. Letalien, 985 A.3d 4, 23 (Me. 2009); see Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009)
(finding the Indiana registration scheme fundamentally flawed, in part because it was “so broad and
sweeping”); see also Wallace, 905 N.E.2d at 381–83 (noting that a registration scheme that applies to
individuals convicted of a sexual offense and individuals charged with but not convicted of a sexual
offense favors a finding that the scheme is nonpunitive because its application is based on criminal
conduct rather than criminal conviction).
106
State v. Letalien, 985 A.3d 4, 23 (Me. 2009); see Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009)
(finding the Indiana registration scheme fundamentally flawed, in part because it was “so broad and
sweeping”).
107
Bureau of Justice Statistics, “Total Correctional Population,” January 2019, available at
<https://www.bjs.gov/index.cfm?tid=11&ty=tp>.
being an extensive criminal history, preference for male child victims, and a history of

victimizing strangers.108 Considering the lack of regard to these risk factors, or any risk

assessment at all for that matter, registries have little impact on public safety.

The overall emphasis placed on registration compliance similarly implies that sex

offenders who fail to register pose an increased threat to public safety. In McKune v. Lile,

the Supreme Court upheld, in a 5-4 plurality opinion, a Kansas law that imposed harsher

sentences on offenders who refused participating in a prison treatment program.109 In

justifying the Court’s conclusion, Justice Kennedy, wearing his science cap, wrote that

sex offenders pose "frightening and high risk of recidivism," which, "of untreated

offenders has been estimated to be as high as 80%.”110 However, a significant body of

other data and evidence gathered using actual research methods have debunked Justice

Kennedy’s frightening conclusion.111

One of the comprehensive studies of the relationship between SORN and general

deterrence and recidivism rates, which was conducted at the Medical University of South

Carolina, found that convicted offenders who fail to register are no more sexually

dangerous than those who comply with registration requirements.112 Specifically, the

results of that study showed that 10% of convicted sex offenders had registry violation

convictions across an average follow-up period of about 6 years.113 Of those who failed to

register, 11% also had a sexual recidivism charge, compared with 9% of compliant

108
Hanson, R.Karl & Bussière, Monique, Predicting relapse: A meta-analysis of sexual offender
recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362 (1998).
109
McKune v. Lile, 536 U.S. 24, 33 (2002).
110
Id. at 33.
111
Elizabeth J. Letorneau, “Evaluating the Effectiveness of Sex Offender Registration and Notification
Policies for Reducing Sexual Violence against Women,” Medical University of South Carolina,
September 2010.
112
Id.
113
Id. at 50.
registrants.114 Moreover, the study found that there was no there was no significant

decline in the six year period after 1999, which was the year that South Carolina

implemented its online sex offender registry, indicating that online notification did not

influence general deterrence of adult sex crimes.115

A popular tool used by researchers in assessing the effectiveness of various

components of SORN with respect to sexual recidivism is the interrupted time series

analysis, which examines an outcome of interest using observations from before and after

the implementation of a specific intervention.116 One of the most comprehensive

interrupted time series analysis with respect to registration schemes was conducted at the

University of Chicago Law School.117 This study compared data from over 9,000 sex

offenders who had been released from prison in 1994, the same year that the Wetterling

Act took effect.118 About half of those offenders were released into states where they

needed to register, while the other half did not need to register.119 The study found little

difference in the two groups' propensity to re-offend. In fact, those released into states

without registration laws were slightly less likely to reoffend.120 The study also showed

that blocks in Washington DC where sex offenders lived did not have higher rate of sex

crimes nor overall crimes.121 The study concluded that registered sex offenders do not

appear to have lower rates of recidivism than those sex offenders who are not required to

114
Id. at 3, 53.
115
R.K. Hanson, “A comparison of child molesters and nonsexual criminals: Risk predictors and long-
term recidivism.” Journal of Research in Crime and Delinquency, 32, 325-337, (1995).
116
See supra 115.
117
J.T Walker et al., "The Influence of Sex Offender Registration and Notification Laws in the United
States: A Time-Series Analysis". Crime & Delinquency. 54 (2): 175–192 (26 October 2007).
118
Amanda Ayan, “Sex Offender Registries: Fear Without Function,” Journal of Law and Economics,
Vol. 54, No. 1 (February 2011), pp. 207-239.
119
Id. at 212.
120
Id. at 214, 216-18.
121
Id. at 222, 224-226.
register, and that knowing where a sex offender lives does not reveal where sex crimes,

or other crimes, will take place.122

Another time-series analysis study conducted at the University of Michigan Law

School in 2008 similarly calls into question the effectiveness of registration schemes with

respect to sexual recidivism.123 This particular study distinguished between the effects of

registration (police-only) and community notification (public registries). The study found

evidence that police-only registration laws reduce the frequency of reported sex offenses,

particularly when the number of registrants is large;124 however, making the registry

information available to the broader public had a backfiring effect that led to higher

overall rates of sex crime.125

This same study found that notification laws may affect the frequencies of sex

offenses, although not in a way as lawmakers intended.126 Notification laws were found to

reduce the number of sex offenses when the size of the registry is small, but these

benefits had the tendency to disappear when more offenders are made subject to

notification requirements.127 Making the registration information public was found to

increase the number of sex offenses by more than 1.57 percent.128 Thus, the authors

concluded that providing information on convicted sex offenders to local authorities may

be beneficial as this increases monitoring and likelihood of punishment for recidivism,

which translates to lower rate of recidivism as predicted in simple model of criminal

122
Id. at 229.
123
J.J. Prescott, “Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?”
Journal of Law and Economics, 2011, available at: https://repository.law.umich.edu/articles/82.
124
Id. at 163.
125
Id.
126
Id. at 168-69.
127
Id. at 174-79.
128
Id. at 179.
behavior.129 By making the same information public, offenders become more likely to

reoffend by creating significant barriers to social reintegration.130

Addressing recidivism is an important law enforcement goal for promoting public

safety. However, the evidence thus far suggests there is no link between SORN and

recidivism rates. Since SORN has not furthered its stated goals thus far, the excessiveness

of the registration laws have no justification. As such, SORN laws are not rationally

related to their stated legislative purpose and must be deemed punitive.

III. Modern SORN Laws Fail Strict Scrutiny

Since modern-day registration schemes have evolved since Smith to be

undeniably punitive and excessive, while not being rationally related to their non-punitive

purposes, the Smith decision is no longer applicable to their constitutionality. SORN laws

now impose criminal penalties that interfere with an offender's fundamental rights, which

undermines the historic judicial attitude that these laws involve civil penalties that do not

require constitutional protection. Future challenges to SORN laws must be examined

under foundational constitutional principles, rather than assuming Smith continues to

provide blanket constitutional protection to all SORN schemes. When examined in this

way, SORN laws unequivocally fail constitutional scrutiny.

Legislation that interferes with a fundamental right or liberty will survive

constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest,

which is the strictest form of scrutiny.131 The Supreme Court has required a “‘careful

description’ of the asserted fundamental liberty interest” in order to apply strict scrutiny.

129
Id. at 180-83.
130
Elizabeth J. Letorneau, “Evaluating the Effectiveness of Sex Offender Registration and Notification
Policies for Reducing Sexual Violence against Women,” Medical University of South Carolina,
September 2010.
131
See Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
Modern-day registration schemes undeniably interfere with fundamental liberties of

offenders. SORN laws take away the liberty of offenders in myriad ways, including by

banishing them, restricting their freedom of movement and subjecting them to

supervision often for decades after their offense. SORN laws also interfere with

fundamental rights of offenders, particularly the right to due process. The component of

due process known as “double jeopardy” appears in the Fifth Amendment, and it is

intended to protect prosecution for the same offense twice by barring multiple

punishments for the same crime.132 SORNA requirements punish ex-offenders by

inflicting upon them profoundly disenfranchising secondary punishments, including the

inability to qualify for housing and increased difficulties securing employment.133 These

secondary punishments effectively banish ex-offenders by not only removing re-entry

resources, but also by affirmatively ostracizing those attempting to rebuild a life after

incarceration.134 SORN laws’ impact on the liberty and due process rights of offenders’

involves their fundamental rights and liberties.

Since SORN laws interfere with fundamental rights and liberties of offenders,

courts must assess whether the laws are narrowly tailored to serve a compelling state

interest.135 The Supreme Court has already held that public safety is a compelling

government interest.136 Despite the compelling state interest underlying SORN laws, they

132
The Constitution of the United States," Article 1, Section 8, Clause 5.
133
Human Rights Watch, “US: Sex Offender Laws May Do More Harm Than Good End Registration of
Juveniles, Residency Restrictions and Online Registries,” September 2007, available at:
https://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-good.
134
Id.
135
See Glucksberg, 521 U.S. at 703; Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972) (holding
that the state interest in educating children for two extra years was not compelling enough for the
state to apply a law requiring children to attend school until sixteen to Amish children whose families
took them out of school at fourteen for religious reasons).
136
See McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (“We have, moreover, previously recognized
the legitimacy of the government’s interests in “ensuring public safety and order...”).
are not narrowly tailored to that interest. The Supreme Court has required that laws

implicating fundamental rights be the least restrictive means of achieving that compelling

interest and not distinguish between similarly situated individuals.137 In Simon Schuster v.

Crime Victims Bd., the Court considered the constitutionality of a New York law that

provided, among other things, that an “‘entity’ contracting with a person ‘accused or

convicted of a crime’ for the production of a book or other work describing the crime

must pay to respondent Crime Victims Board any moneys owed to that person under the

contract.”138 The Court held that the state did have a compelling interest in seeing victims

of crime compensated from the proceeds of crime.139 In examining whether the law was

narrowly tailored to that interest, the Court was troubled by how overinclusive the law

was.140 The statute contained a “broad definition of ‘person convicted of a crime’

enabl[ing] the Board to escrow the income of any author who admits in his work to

having committed a crime, whether or not the author was ever actually accused or

convicted.”141 Moreover, the Court concluded that “the Son of Sam law clearly reaches a

wide range of literature that does not enable a criminal to profit from his crime while a

victim remains uncompensated.”142

As with the Son of Sam law considered by the Court in Simon Schuster v. Crime

Victims Bd., SORN laws are overly inclusive. The laws single out a specific category of

offenders for extra punishment. However, the types of offenses covered by SORN laws

are so broad that they include registration and monitoring of individuals who have never
137
See Simon Schuster v. Crime Victims Bd., 502 U.S. 105 (1991); Reed v. Town of Gilbert, 135 S. Ct.
2218, 2224 (2015).
138
Crime Victims Bd., 502 U.S. at 105.
139
Id. at 120.
140
Id. at 121.
141
Id.
142
Id. at 122.
threatened and present no future risk to public safety.143 Moreover, SORN laws have not

proven ineffective in accomplishing their cited objectives.144 They have little impact on

preventing sex offenders from reoffending and, thus, have little actual public safety

benefit.145 Because SORN laws include more people than necessary to promote public

safety and, even in their overinclusive forms, have not had a tangible impact on public

safety, these laws are not the least restrictive means necessary to promote the

government’s compelling interest in public safety. As such, these laws in their current

forms are not narrowly tailored to a compelling government interest. Since SORN laws

fail the strict scrutiny test required when a government interferes with fundamental rights

to liberty and due process, these laws must be struck down as unconstitutional.

The government’s eagerness to draft draconian legislation to appease the public

combined with the courts’ failure to apply correct constitutional standards to SORN laws

interfering with fundamental rights has allowed registration schemes proliferate

unchecked by the constitution. It is high-time for the courts to reexamine Smith v. Doe

and Connecticut Department of Public Safety. More importantly, it is time to provide

meaningful guidance on the parameters that will support the states’ interest in keeping

their communities safe while providing constitutional protections to convicted offenders.

143
See Part I.c, supra.
144
See Part II.b and c, supra.
145
See Part II.c, supra