Indiana Law Review


There Goes the Neighborhood: Notifying the
Public When a Convicted Child Molester is Released

Into the Community

Elizabeth Kelley CiERZNiAK*

When convicted child rapist Joseph Gallardo was released from prison in July 1993,
he received an unusually warm welcome from his new neighbors in Snohomish County,
Washington.

The day before his release, about 300 angry residents rallied on the front lawn of the

modest home where Gallardo planned to live. Hours later, the house was burned to the
ground.^

At the time of the Gallardo incident, laws in most states allowed convicted child

molesters to slip back into the community unnoticed and unheralded. The Washington

legislature, however, tried a different tactic in 1990 following the sexual mutilation of a

seven-year-old boy in their state.

Washington's Community Protection Act of 1990 authorizes a public law

enforcement agency to release relevant and necessary information regarding sex offenders

to the public when the release of the information is necessary for public protection.^ The

type of information released and the method of dissemination is left to the discretion of

local law enforcement officials.^ These officials are granted immunity from civil liability

for releasing or failing to release sex-offender information."*

Gallardo was convicted ofraping the ten-year-old daughter of a family friend.^ Five

days before his parole, the Snohomish County sheriffs office delivered 1000 pamphlets

door-to-door featuring a mug shot ofGallardo, a description ofhis crime, and the fact that
he did not receive any treatment in prison.^

Based on drawings found in Gallardo's prison cell, the pamphlet called him an

"extremely dangerous untreated sex offender with a very high probability for re-offense,"^

* J.D. Candidate, 1995, Indiana University School of Law—Indianapolis; B.S., 1979, Butler
University.

1

.

Doug Conner, Did Flyer on Sex Offenders Release Invite Vigilantism?, L.A. TIMES, July 22, 1 993,

atA5.

2. Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1 994).

3. Id. See Mary Anne Kircher, Registration ofSex Offenders: Would Washington 's Scarlet Letter

Approach Benefit Minnesota? 13 Hamline J. PUB. L. & POL'Y 163 (1992). The author provides an overview
of community notification procedures employed by local law enforcement agencies in Washington state prior

to the Gallardo notification. Id.

4. Wash. Rev. Code Ann. § 4.24.550 (granting immunity for any discretionary decision to release

relevant and necessary information, unless the official, employee, or agency acted with gross negligence or in

bad faith).

5. Conner, supra note 1

.

6. Larry Pynn, Taking Things Too Far: Washington 's Sex Offender Law Reveals Serious Pitfalls.

Vancouver Sun, July 23, 1993, at B3.

7. Conner, jrupra note 1

.



7 1

6

INDIANA LAW REVIEW [Vol. 28:715

and described the first-time offender as having "sadistic and deviant sexual fantasies of

torture, human sacrifice, bondage, and murder involving children."*

The vigilantism sparked by Gallardo's release fanned the flames of the continuing

controversy over how the public should be notified when a convicted child molester is
living in its midst. At the end of 1993, only two states, Washington' and Louisiana, '° had

laws on their books that provided for widespread, proactive community notification when

a person convicted of sex crimes against a child is released fi"om custody, placed on

probation, or granted parole." By mid- 1994, five more states had adopted measures
which opened sex offender registries to public scrutiny,'^ and Congress had enacted

legislation that authorized law enforcement officials in every state to release information

that is necessary to protect the public from child sex offenders.'^

As reports of sexual abuse and violence against children continue to climb and prison

populations swell to capacity, policy-makers will be forced to grapple with the issue of

how the public should be put on notice when a potentially dangerous child molester is
released from prison or placed on probation. This Note will examine the pragmatic and

legal issues raised by community notification statutes. Part I provides an overview of

state and federal legislative solutions to tracking child sex offenders. Part II sketches the

Washington, Louisiana and federal statutory approaches to community notification. Part

III analyzes community notification statutes in light ofpotential constraints, including the

Ex Post Facto Clause, the Eighth Amendment, the Due Process Clause, and the right to

privacy. Finally, Part IV ofthis Note proposes a statutory scheme for public notification.

I. An Overview of Legislative Solutions

The Journal of the American Medical Association has defined child molesters as

"older persons whose conscious sexual desires or responses are directed, at least in part,

toward dependent, developmentally immature children and adolescents who do not fully
comprehend these actions and are unable to give informed consent."'"* Each year in the

8. Pynn, supra note 6.

9. Wash. Rev. Code Antn. § 4.24.550 (West Supp. 1994).

10. La. Rev. Stat. Ann. §§ 15:540-:549 (West Supp. 1994).

1 1

.

Other states allowed public disclosure under limited circumstances. Maine requires that persons

convicted ofgross sexual assault against victims under the age of 1 6 to register with the state; however, criminal

history information on persons who have been released from the criminal justice system is only available in

response to a specific inquiry that includes a name, date, and charge. Me. Rev. Stat. Ann. tit. 16, § 612 (West

1983) & tit. 34-A, § 1 1001 (West Supp. 1993). The Montana statute does not expressly prohibit public access.
Mont. Code Ann. §§ 46-18-254, 46-23-501 to -507 (1993). The North Dakota registry is open to the public;

however, the statute does not provide for any form of proactive community notification. N.D. CENT. CODE §

12.1-32-15 (Supp. 1993).

12. Alaska STAT. §§11.56.840, 12.63.010, 12.63.020, 12.63.100, 18.65.087,28.05.048,33.30.012,

33.30.035, 33.30.901 (1994); Ga. CODE ANN. § 42-9-44.1 (1994); IND. CODE ANN. §§ 5-2-12-1 to -13 (West

1994); Kan. Stat. Ann. §§ 22-4901 to -4910 (Supp. 1993); 1994 Tenn. Pub. Acts 976 (to be codified at Tenn.

Code Ann. §§ 40-39-101 to -108).

13. 42 U.S.C.A. § 14071 (West 1994).

14. A. Kenneth Fuller, M.D., Child Molestation and Pedophilia: An Overviewfor the Physician, 261



1995] CHILD MOLESTER NOTIFICATION 717

United States, between 100,000 and 500,000 children are sexually molested;'^ however,

research indicates that as few as six percent of child molestations are ever reported.'^ Acts

of abuse are rarely a one-time occurrence; an individual child molester may "commit
hundreds of sexual acts on a staggering number of children."'^ While the majority of sex

crimes against children are committed by relatives, such as parents or siblings, a

substantial portion of offenders have either established a relationship with the child for

the sole purpose of molesting or are strangers to their victims.'^

Child molesters are everywhere—in churches, schools, neighborhoods, and homes.
In recent years, state legislatures across the country have struggled with ways to increase

community protection while keeping costs down and meeting federal mandates for prison
population size. One popular approach has been to strengthen existing laws by requiring

released sex offenders to register with law enforcement officials or state agencies.'^

Thirty-nine states have laws that require persons convicted of certain sex offenses to

register.^'^ All but five of these statutes have been adopted during the past decade, with

JAMA 602, 602 (1989) (footnote omitted). The article also describes pedophilia as "recurrent, intense sexual

urges and . . . fantasies that involve sexual activity with prepubescent children (generally age 1 3 or younger).

In addition, the pedophile . . . either must have acted on these urges or must be markedly distressed by them."

Id. For purposes of this Note, the term "child molester" will be used to denote both child molesters and

pedophiles.

15. Id.

16. /^. at 603.

17. Id

1 8. Division of Family and Children, Indiana Family and Social Services Administration,

Demographic Trend Report 186 (1993). During fiscal year 1993, 49.8% ofperpetrators in substantiated and

indicated cases of child sexual abuse were related to their victims. Over a quarter of all

perpetrators—27.3%—were natural parents, adoptive parents or step-parents. Conversely, 35.8% of all
perpetrators did not have an established relationship with the child.

19. ROXANNE LlEB ET AL., WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY, SEX OFFENDER

Registration: A Review of State Laws 2 (Feb. 1994). States' approaches are varied, but generally the

registries include at a minimum the name, address and a law enforcement identification number. Some states

collect detailed information, which may include blood samples, employment information, residence history and

vehicle registration numbers. Offenders who do not comply are penalized. Id. The time-frame for registering

ranges from immediately upon release to 30 days; the duration of the requirement varies from five years to life,

and is typically 10 years or longer. Id. at 8, 15-18. Some states register only child molesters; some register only

repeat offenders or the most serious categories of offenders; and some register all sex offenders, regardless of

the seriousness of the crime or the age of the victim. Id. at 2-3, 15-18.

20. Ala. Code §§ 13A-1 1-200 to -203 (1994); Alaska Stat. §§ 1 1.56.840, 12.63.010, 12.63.020,

12.63.100, 18.65.087, 28.05.048, 33.30.012, 33.30.035, 33.30.901 (1994); Ariz. Rev. Stat. Ann. §§ 13-3821

to -3824 (1989 & Supp. 1993); Ark. Code Ann. §§ 12-12-901 to -909 (Michie Supp. 1993); Cal. Penal Code

§§ 290, 290.1, 290.5 (West 1988 & Supp. 1994); COLO. Rev. Stat. Ann. § 18-3-412.5 (West Supp. 1994); Del.
Code Ann. tit. 1 1, § 4120 (1994); Fla. Stat. Ann. §§ 775.13, 775.21-.23 (West 1992 & Supp. 1994); Ga. Code
Ann. § 42-9-44.1 (1994); Idaho Code §§ 18-8301 to -831 1 (Supp. 1994); III. Ann. Stat. ch. 730, para. 150/1-

/lO (Smith-Hurd 1992 «& Supp. 1994); Ind. Code Ann. §§ 5-2-12-1 to -13 (West Supp. 1994); Kan. Stat. Ann.

§§ 22-4901 to -4910 (Supp. 1993); Ky. Rev. Stat. Ann. § 17.500-.540 (Baldwin 1994); La. Rev. Stat. Ann.

§§15:540-:549 (West Supp. 1994); ME. Rev. Stat. Ann. tit. 34-A, §§ 1 1001 - 1 1004 (West Supp. 1993); 1994



718 INDIANA LAW REVIEW [Vol. 28:715

fifteen states enacting sex offender registries in the last year alone. The recently enacted

federal crime bill requires each state to establish a sex offender registry or face a ten

percent cut in federal anti-crime dollars.^'

In conjunction with registration laws, state legislatures have adopted other measures

aimed at protecting communities from convicted child molesters, including criminal

history background checks and notification programs.^^ Five different audiences may be
targeted with proactive notification programs: victims and witnesses connected to specific

offenders,^^ law enforcement agencies,^'* school districts and child care facilities,^^

volunteer organizations serving children,^^ and citizens in a particular neighborhood or

community.^^ In addition, some states have opened their registries to the public, allowing

any citizen to check and see if their next door neighbor or youth group leader has a record

of sex offenses against children.^*

Washington and Louisiana were the first states to adopt proactive legislation aimed

at fostering widespread public awareness when persons convicted of sex offenses against

a child are released into the community. In providing for community notification, the

legislatures in Washington and Louisiana used nearly identical language to explain their

rationale.

The legislature finds that sex offenders pose a high risk of engaging in sex

offenses even after being released from incarceration or commitment and that

Mich. Pub. Acts 295; Minn. Stat. Ann. § 243.166 (West 1992 & Supp. 1994); 1994 Miss. Laws 514; 1994
Mo. Legis. Serv. 693 (Vernon); MONT. CODE Ann. §§ 46-18-254, 46-23-501 to -507 (1993); Nev. Rev. Stat.

Ann. §§ 207.151-.157 (Michie 1992 & Supp. 1993); N.H. Rev. Stat. Ann. §§ 632-A:l 1-:19 (Supp. 1993); N.D.
Cent. Code § 12.1-32-15 (Supp. 1993); 1994 N.J. Sess. Law Serv. 128 (West); Ohio Rev. Code Ann.§§

2950.01-.08 (Anderson 1993); Okla. Stat. Ann. tit. 57, §§ 581-587 (West 1991 & Supp. 1994); Or. Rev.
Stat. §§ 181.507-.519 (1991 & Supp. 1994); R.L Gen. Laws § 1 1-37-16 (Supp. 1993); 1994 S.C. Acts 497 (to
be codified at S.C. Code Ann. §§ 23-3-400 to -490 (Law. Co-op.)); 1994 S.D. Laws 1349; 1994 Tenn. Pub. Acts

976 (to be codified at TENN. CODE Ann. §§ 40-39-101 to -108); Tex. Rev. Civ. Stat. Ann. art. 6252-13c.l

(West Supp. 1994); UTAH CODE ANN. § 77-27-21.5 (1990 & Supp. 1994); Va. Code Ann. §§ 19.2-298.1 to
298.3, 19.2-390.1, 53.1-116.1 (Michie 1994);- Wash. Rev. Code Ann. §§ 9A.44-130, 9A.44.140 (West Supp.

1994); W. Va. Code §§ 61-8F-1 to -8 (Supp. 1994); Wis. Stat. Ann. § 175.45 (West Supp. 1994); Wyo. Stat.

§§7-19-301 to -306 (Supp. 1994).

21. 42 U.S.C.A. § 14071 (West 1994).

22. ROXANNE LlEB & BARBARA E.M. FELVER, WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY,
Sex Offender Registration, A Review of State Laws 5 (May 1992).

23. See, e.g., OR. Rev. Stat. § 181.519 (1991 & Supp. 1994). However, a victim's access to the
notification program is revoked if the information is made public.

24. See sources cited in supra note 20. All states with sex offender registries provide access to law

enforcement.

25. See. e.g., ILL. Rev. Stat. ch. 730, para. 150/1-/9 (Smith-Hurd 1992 & Supp. 1994); NEV. Rev.
Stat. Ann. §§ 207.1 55-. 157 (Michie 1992 &. Supp. 1993).

26. See, e.g., IND. CODE ANN. § 5-2-12-1 1 (West Supp. 1994).

27. La. Rev. Stat. Ann. §15:540 (West Supp. 1994); Wash. Rev. Code Ann. §§ 9A.44-130,

9A.44.140 (West Supp. 1993).

28. See, e.g.. Ga. Code Ann. § 42-9-44. 1 ( 1 994).



1 995] CHILD MOLESTER NOTIFICATION 7 1

9

protection ofthe public from sex offenders is a paramount governmental interest

.... [RJestrictive confidentiality and liability laws governing the release of

information about sexual predators have reduced willingness to release

information that could be appropriately released under the public disclosure

laws, and have increased risks to public safety. Persons found to have

committed a sex offense have a reduced expectation of privacy because of the

public's interest in public safety and in the effective operation of government.

Release of information about sexual predators to public agencies, and under

limited circumstances, the general public, will further the governmental interests

ofpublic safety and public scrutiny ofthe criminal and mental health systems so

long as the information released is rationally related to the furtherance of these

goals.^^

Whether widespread community notification furthers the stated goal ofpublic safety

remains unanswered. Disclosure has helped to prevent some child molesters from

striking;^^ at the same time, however, community notification has resulted in scattered

instances of vigilantism and harassment against offenders and members of their family.^'

Hounded by an angry public, released offenders may find themselves evicted and
unemployed.^^ In order to integrate into society, some child molesters have been forced

to go underground or relocate to a community or state where they can live in anonymity."

Thus, public notification can be self-defeating if it drives offenders from a

community that knows about their criminal history into territory where they are

anonymous. Pedophilia is believed to be a lifelong affliction;^"* however, after a child

molester's period ofprobation or parole ends, he or she may simply relocate to a state that

closes its sex offender registry to the public or has not adopted proactive community

29. Wash. Rev. Code Ann. § 4.24.550 note (West Supp. 1994) (Historical and Statutory Notes). See

also La. Rev. Stat. Ann. § 15:540 (West Supp. 1994). The Louisiana statute replaces the word "predator" with

"offender."

30. Katherine Seligman, Molesters' "Scarlet Letter" Bill: Is Public Disclosure an Invasion of

Privacy?, S.F. EXAMINER, March 6, 1994, at Al.

3 1

.

WASPC Sex Offender Ad Hoc Committee, Washington Association of Sheriffs & Police
Chiefs, Preliminary Report 6 (1992). Ofthe 52 law enforcement agencies that had implemented community

notification, 14 said that community reaction resulted in safety problems for either the offender or his family.

A survey conducted by the Washington Institute for Public Policy yielded similar results. See Sheila

Donnelly & Roxanne Lieb, Washington State Institute for Public Policy, Community Notification:
A Survey of Law Enforcement 7 (1993). A total of 14 cases ofharassment were reported in 12 jurisdictions;

30 jurisdictions reported no instances of harassment. In half of the 14 cases, the harassment extended to

members of the offender's family or people living with the offender. Id. Both surveys were conducted prior

to the Gallardo notification.

32. Conner, supra note 1.

33. Daniel Golden, Sex-Cons, BOSTON GLOBE, April 4, 1993 (Magazine), at 12. The Washington

Institute for Public Policy also reports that "offenders subject to notification frequently leave the community,

and sometimes the state." DONNELLY & LlEB, supra note 3 1, at 7.
34. See supra text accompanying note 14.



720 INDIANA LAW REVIEW [Vol. 28:715

notification. Interstate agreements even make it possible for offenders to move to another
state while on probation or parole.^^

In 1992, a felony sex offender from Arkansas wanted to move to a state where there
was no law requiring him to tell police where he lived and worked. His brother

encouraged the offender to move to Kentucky after authorities told him the state did not
have a sex offender registry.-'^ Upon hearing this story, the co-chairman of the Kentucky
Attorney General's Task Force on Child Sexual Abuse was quoted as saying, "There's a

lot of things we want our state known for. A safe haven for sex offenders isn't one of
them."^^

Apparently, officials in other states share this view, with an increasing number of

legislatures adopting registries. Until recently, however, the fervor for notification was

not as strong; most existing state registries limited disclosure to law enforcement

agencies^^ or organizations and agencies responsible for the care and custody of

children.^^ A few state registry laws even imposed criminal penalties on persons who
released information.'*'

The recently enacted Violent Crime Control and Law Enforcement Act of 1994
changed the landscape, however, by authorizing limited community notification in states

complying with the registration provisions of the law."*' Under this permissive language,

states that currently do not have community notification are not required to change their

35. Neil P. Cohen & James J. Gobert, The Law of Probation and Parole 397-98 (1983). The
Interstate Compact for the Supervision of Parolees and Probationers allows persons convicted and placed on

probation or parole in one state to reside in another state and have their parole or probation supervised by

authorities there. If offenders are residents or have family in the receiving state and are able to obtain

employment, the receiving state is obligated to accept supervision. Even if the offender is not a resident and

does not have a family member who is a resident, the receiving state may still consent to the move. All states

have entered into the compact. Id. at 397-99.

36. Valarie Honeycutt, Task Force Pushing Sex Abuser Registry, LEXINGTON Herald-Leader, Oct.

19, 1992, at Bl.

37. Id. The Kentucky legislature adopted a sex offender registry in 1994. Ky. Rev. Stat. Ann. §

1 7.500-.540 (Baldwin 1 994).

38. Ala. Code § 13A-1 1-202 (1994); Ariz. Rev. Stat. Ann. § 13-3823 (1989); Ark. Code Ann. §

12-12-909 (Michie Supp. 1993); Cal. Penal Code § 290 (West 1988 & Supp. 1994); Colo. Rev. Stat. Ann.

§ 18-3-412.5 (West Supp. 1994); FLA. Stat. Ann. § 775.22 (West 1992 & Supp. 1994); III. Ann. Stat. ch.

730, para. 150/9 (Smith-Hurd 1992 & Supp. 1994); Ky. Rev. Stat. Ann. § 17.500-.540 (Baldwin 1994); 1994
Mich. Pub. Acts 295; MiNN. Stat. Ann. § 243.166 (West 1992 & Supp. 1994); 1994 Miss. Laws 514; 1994 Mo.
Legis. Serv. 693 (Vernon); N.H. Rev. Stat. Ann. § 632-A: 1 7 (Supp. 1 993); Ohio Rev. Code Ann. § 2950.08

(Anderson 1993); Okla. Stat. Ann. tit. 54, § 24A.8 (West 1991 & Supp. 1994); R.I. Gen. Laws § 1 1-37-16

(Supp. 1993); Tex. Rev. Civ. Stat. Ann. art. 6252-1 3c. 1 (West Supp. 1994); W. Va. Code § 61-8F-5 (1994);

Wis. Stat. Ann. § 175.45 (West Supp. 1994); Wyo. Stat. §§ 7-19-303 (Supp. 1994).

39. Del. Code Ann. tit. 1 1, § 4120 (1994); Nev. Rev. Stat. Ann. § 207.155 (Michie 1992 & Supp.

1993); 1994 S.D. Laws 1349; Utah Code Ann. § 77-27-21.5 (1990 & Supp. 1994); Va. Code Ann. §
19.2-390.1 (Michie 1994).

40. III. Ann. Stat. ch. 730, para. 150/9 (Smith-Hurd 1992 & Supp. 1994); Ky. Rev. Stat. Ann. §
17.500-.540 (Baldwin 1994); Tex. Rev. Civ. Stat. Ann. art. 6252-1 3c. 1 (West Supp. 1994).

41. 42 U.S.C.A. § 14071 (West 1994).



1 995] CHILD MOLESTER NOTIFICATION 72

1

policies. States with broad notification provisions, however, may be forced to narrow
their laws or face cuts in federal funding/^ Because the concept ofpublic notification is

gaining popularity, many state legislatures will debate the issue in the near future as they

create sex offender registries or tailor existing registries to meet the requirements of the

federal law. The Washington and Louisiana approaches can provide a useful blueprint

for avoiding constitutional pitfalls and crafting a notification program that protects the

public.

II. Statutory Approaches

* A. Washington 's Community Protection Act

Washington's community notification law was adopted in 1990 following a series of

violent sexual assaults which fueled public outrage that the criminal justice and mental

health systems did not adequately protect citizens from sex offenders."*^ The notification

provision was included in the Community Protection Act of 1990, a sweeping measure

that provides for civil commitment of sexual offenders who are deemed to be violent
predators, registration of adult and juvenile sex offenders, state services to victims,

offender treatment programs, and community notification when a sex offender or violent

criminal is released from prison."^

Decisions regarding community notification are made by local law enforcement

agencies when an offender registers or when a "Special Bulletin" is received from the

Department of Corrections. Special Bulletins are issued about two weeks before an

offender is released from a state correctional or mental health facility,'*^ and contain the

address where the offender intends to live upon release, if known, a photograph, and a

detailed psychological and criminal profile."*^

The decision to issue Special Bulletins is made by the End-of-Sentence Review

Committee, a seven-member panel comprised of representatives from Community

Corrections; the Indeterminate Sentencing Review Board; and the state divisions of

Prisons, Offender Programs, Mental Health, Developmental Disabilities, and Child

Protective Services."*^ The committee surveys the records of all sex offenders about to be

released from state institutions and issues Special Bulletins on those offenders deemed to

pose a serious public safety risk."*^ In the three years following passage ofthe Community

42. Id.

43. LlEB & Felver, supra note 22, at 8. Following the 1988 rape and murder of a Seattle woman by
a twice-convicted sex offender on work release from prison, and the 1 989 abduction and sexual mutilation of

a seven-year-old Tacoma boy by a man with a long history of violent assaults on children, the governor

appointed a Task Force on Community Protection that recommended a comprehensive law relating to

community protection from sex offenders.

44. 1990 Wash. Laws 3.

45. Telephone Interview with Maureen Ashley, Correctional Program Manager, Washington

Department of Corrections (Nov. 10, 1993).

46. Washington State Institute for Public Policy, The 1990 Community Protection Act:

Two Years Later 17 (1992).

47. Id.

48. Donnelly & Lieb, supra note 3 1 , at 3

.



722 INDIANA LAW REVIEW [Vol. 28:7 1

5

Protection Act, 2216 sex offenders were released from Washington's prisons; 415 of these

offenders, or twenty percent, were the subject of Special Bulletins."*^ Under guidelines

adopted by the committee following the Gallardo release, Special Bulletins are generally

limited to convicted child sex offenders who fit the statutory definition of a sexually
violent predator: any person who suffers from a mental abnormality or personality
disorder, which makes the offender likely to engage in acts of sexual violence toward

strangers or children with whom a relationship has been established for the primary
purpose of victimization.^^

Local law enforcement officials are granted discretion to release the information

contained in Special Bulletins and the sex offender registry to other agencies, groups or

persons in the community.^' To help encourage departments to adopt a community

notification policy, the Washington Association of Sheriffs and Police Chiefs (WASPC)
developed a voluntary three-tiered system to regulate dissemination of sex offender

information.^^

Under the WASPC guidelines. Level I notification is used when the risk of re-offense
is the lowest.^^ The information is maintained within the police department and

disseminated to other appropriate law enforcement agencies. A photograph of the
offender may be included in a Level I notification.^"* Level II, which is implemented when
the offender poses a moderate risk of re-offense, includes the actions within Level I, and

in addition, schools and neighborhood groups may be notified.^^ These groups are
responsible for distributing the information to their constituencies. Level III, reserved for

the highest-risk offenders, broadens the scope of notification to include press releases.^^

Most law enforcement agencies have adopted the recommended policies verbatim,

while others use the guidelines as a starting point for discussion.^^ In some counties,

49. Donnelly & Lieb, supra note 3 1 , at 3. This represented about six percent of the total number of
adult sex offenders registered in Washington state during that time period. As of August 1993, 6982 adult sex

offenders had registered, with an overall compliance rate of80%. Based on Department ofCorrections' records,

1719 adult sex offenders who were released from prison did not meet their statutory obligation to register.

Donnelly & Lieb, supra note 3 1 , at 2.
50. Telephone Interview with Maureen Ashley, Correctional Program Manager, Washington

Department of Corrections (Aug. 24, 1994). See Wash. Rev. Code Ann. § 71.09.020 (West 1992 &. Supp.

1994).

51. Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1994) (authorizing public agencies to release

relevant and necessary information regarding sex offenders when the release ofthe information is necessary for

public protection),

52. Memorandum from the Washington Association of Sheriffs & Police Chiefs (May 21 , 1990) (on
file with the author).

53. Donnelly & Lieb, 5M/7ra note 31, at 3.
54. Donnelly & Lieb, 5M/;ra note 31, at 3.
55. Donnelly & Lieb, supra note 3 1 , at 3.
56. Donnelly & Lieb, supra note 31, at 3. From February 1990 to March 1993, law enforcement

agencies using the WASPC guidelines identified 2947 Level I offenders, 98 Level II offenders, and 78 Level

III offenders. Donnelly & Lieb, supra note 3 1, at 4.
57. RoxANNE Lieb et al., Washington State Institute for Public Policy, Community

Notification Press review 1 (1992). See also WASPC Sex Offender Ad Hoc Committee, supra note 3 1

,



1995] CHILD MOLESTER NOTIFICATION 723

newspaper editorial boards set policies governing publication of sex offender

information.^^ Because no requirement compels local agencies to notify the public when

a sex offender is released, and no clear-cut statutory guidelines govern notification, results

vary widely from community to community.^^ How offenders fare upon release may
depend on whether they set up residence in a small town or slip into the anonymity of a

larger city.^°

Nine months after the Gallardo incident, the Washington Supreme Court had the

opportunity to consider the 1990 notification language in State v. Ward,^^ a challenge to

the sex offender registration law. Stressing that the legislature imposed "significant

limits" on whether an agency may release registrant information, what it may disclose,
and where it may target the release of information,^^ the court held that disclosure is only
justified if there is evidence of an offender's future dangerousness.^"^ This requirement,

combined with the legislature's primary goal of protecting the public, "obligates the

disclosing agency to gauge the public's potential for violence and draft the warning

accordingly. An agency must disclose only that information relevant to and necessary for
counteracting an offender's dangerousness."^'* The court added that the "scope of the

disclosure must relate to the scope of the danger" and that the content of the warning

depends on the offender's proximity.^^ Thus, an agency may decide to limit notification
to schools and day care centers, or it may provide the offender's next-door neighbors with

a warning that is more detailed than the warnings provided to persons less at risk.

Opening the entire registry for examination by the public, as some counties were doing,^^

is clearly prohibited by the restrictive language of Ward.

at 5. WASPC conducted a mail-in survey of police chiefs and sheriffs from July 24, 1992 to September 17,
1992. Ofthe 80 agencies responding (40% response rate), 47 said they used the WASPC three-tiered system.

But see DONNELLY & LiEB, supra note 3 1, at 4. In March 1993, the Washington Institute for Public Policy
surveyed sheriffs in all 39 counties and the police chiefs of the state's 10 largest cities. Of the 42 jurisdictions

responding, 93% said they used the WASPC guidelines.

58. LlEB ET AL., supra note 57. This report compiles the press clippings of eight offenders in the state

of Washington who were subject to Level III notification. See also Golden, supra note 33, at 12. Golden reports

that the Bellingham Herald prints the offender's name, address, photo and license plate number, while the Valley

Daily News, in Kent, does not identify the offender. In Seattle, police stopped releasing addresses after a sex

offender was assaulted at his home, and now divulge only the block where the offender lives. Whenever the

department does issue a news release, it is usually ignored by the media.

59. WASPC Sex Offender Ad Hoc Committee, supra note 3 1 , at 5. Only 52 of the 80 agencies
responding to the 1992 survey said they had notified the community ofspecific sex offenders. See also Kircher,

supra note 3, and DONNELLY & LlEB, supra note 31, at 13-16 (giving specific examples of implementation
policies in Washington).

60. See supra text accompanying note 58.

61. 869 P.2d 1 062 (Wash. 1 994).

62. Mat 1069-70.
63. Id. at 1070.

64. Id

65. Id at 1071.

66. Christy Scattarella, Release ofSex-Offender Date Varies by Jurisdiction, SEATTLE TIMES, Feb. 20,

1991, at Fl.



724 INDIANA LAW REVIEW [Vol. 28:7 1

5

The legislature also acted swiftly to tighten the notification language in the wake of

the Gallardo release. Noting that the public may be alarmed to leam that a released sex
offender is moving into the neighborhood, lawmakers found that if adequate notice and

information is provided, "the community can develop constructive plans to prepare

themselves and their children for the offender's release/*^^ An amendment to the 1990
measure requires local law enforcement agencies to make a good faith effort to launch any

community notification effort at least fourteen days before the offender is released.^^ In

addition, the new language calls for the state Department of Corrections to notify local
law enforcement at least thirty days before a sex offender's parole, release, community

placement, or work release;^^ previously, only ten days notice was required^" According

to the legislative findings, the additional time between notification and release will allow

communities "to meet with law enforcement. . . , to establish block watches, to obtain

information about the rights and responsibilities of the community and the offender, and

to provide education and counseling to their children."^'

B. Louisiana's "Scarlet Letter" Law

A few months before Joseph Gallardo's neighbors-to-be in Washington state received
the frightening flyers, residents of Lafayette, Louisiana, were getting a surprise of their

own. "Under Act 962 of the 1992 Legislature," the postcards read, "I am required to
inform you that I have been convicted ofsexual battery. I live at 425 Herbert Rd. and my
name is Wilfred Bouton.**^^

In Louisiana, community notification is governed under two companion measures

adopted by the 1992 legislature.^^ Act 388 created a sex offender registry.^"* Law
enforcement officials are empowered to release relevant and necessary information and

are granted immunity from civil liability for damages if they do so, provided the officials

did not act with gross negligence or in bad faith.^^ Instead of leaving notification policy

to the discretion of the individual communities, as in Washington,^^ the Louisiana law

required the Board ofParole to hold public hearings in each of the state's larger cities and

to promulgate rules governing notification.^^

67. 1994 Wash. Legis. Serv. 129 (West).

68. Id.

69. Id.

70. To meet this statutory requirement, the Department ofCorrections issues teletype dispatches to local

law enforcement 30 days before an offender is scheduled to be released. Special Bulletins are usually issued

closer to the release date, when the offender's planned destination is known. Telephone Interview with Maureen

Ashley, Correctional Program Manager, Washington Department of Corrections (Aug. 24, 1994).

71. 1 994 Wash. Legis. Serv. 1 29 (West).

72. Tracey Tyler, Law Forces Sex Offenders Out in the Open, TORONTO STAR, March 27, 1 993, at A 1

.

73. 1992 La. Acts 388 and 1992 La. Acts 962.

74. La. Rev. Stat. Ann. § 1 5:542 (West Supp. 1 994).

75. La. Rev. Stat. Ann. § 1 5:546 (West Supp. 1994).

76. See supra note 5 1 and accompanying text.

77. La. Rev. Stat. Ann. § 1 5:547 (West Supp. 1 994).



1995] CHILD MOLESTER NOTIFICATION 725

Act 962 specifically targeted sex offenders whose victims were under the age of

eighteen^^ Unlike the Washington statute, which relies on law enforcement agencies, the

media, or community groups to notify the public when a child molester moves to town,
this law places the burden of community notification on the offender^^

Child molesters^^ released on probation^' or parole^^ are required to mail notices to

their neighbors within thirty days of release or establishing residence.^-' Offenders must

also publish, at their expense, two notices in the community newspaper that detail their

crime, name, and address. ^"^ In addition, released offenders must contact the

superintendent ofthe school district where they plan to live. The superintendent then has

the discretion to notify area principals. ^^ A novel provision grants judges and the Board
of Parole specific authority to require other forms of notice, including signs, handbills,

bumper stickers, or identifying clothing.^^

As required by statute, the Board of Parole promulgated rules to implement both

Acts.^^ Unlike the Washington statute, which vests notification decisions with local law

enforcement officials,^^ the Louisiana rules empower only the Board of Parole to release

78. 1992 La. Acts 962.

79. Id.

80. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994). The notification requirement applies to

offenders whose victims are under the age of 18 and who have committed the following offenses or an

equivalent offense in another jurisdiction: abetting in bigamy, forcible rape, aggravated crimes against nature,

incest, aggravated oral sexual battery, indecent behavior with a juvenile, intentional exposure to AIDS,

molestation of a juvenile, aggravated sexual battery, oral sexual battery, bigamy, pornography involving a

juvenile, carnal knowledge of a juvenile, sexual battery, crimes against nature, and simple rape. Id.

81. Id

82. La. Rev. Stat. Ann. § 15:574.4 (West Supp. 1993).

83. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994); La. Rev. Stat. Ann § 1 5:574.4 (West

Supp. 1993) (requires offenders to give notice by mail of the crime for which they were convicted, their name,

and their address to neighbors who live within a one-mile radius in a rural area and within three-square blocks

in a urban or suburban area).

84. La. Code Crim. Proc. Ann. art. 895; La. Rev. Stat. Ann. § 15:574.4.

85. La. Code Crim. Proc. Ann. art. 895; La. Rev. Stat. Ann. § 1 5:574.4.

86. La. Code Crim. Proc. Ann. art. 895; La. Rev. Stat. Ann. § 1 5:574.4. In other states, judges have

imposed probationary sentences requiring child molesters to post yard signs and affix bumper strips to their

vehicles that announce their crimes. See State v. Bateman, 771 P.2d 314 (Or. Ct. App. 1989), review denied.

Ill P.2d 410 (Or. 1989) (A convicted sex abuser was required, as a condition of probation, to post signs on his

residence and on any vehicle he was operating reading "Dangerous Sex Offender."). See also Molester Sign

Violates Rights. ICLU Claims. THE INDIANAPOLIS Star, September 22, 1993, at Bl (A judge sentenced a child

molester to 1 years in prison and required him to post signs in his yard for six years after his release, which

read, "Warning: No children permitted. A convicted child molester resides in this home.").
87. 19 La. Reg. 1 245-47 ( 1 994) (to be codified at La. Admin. Code tit. 22, § XI).

88. See supra note 5 1 and accompanying text.



726 INDIANA LAW REVIEW [Vol. 28:715

sex offender information.^^ No guidance is offered explaining how the release of
information should be handled.^^

While the statute and regulations grant the Board almost complete discretion

regarding release of sex offender information, the duty to mail postcards and place

classified advertisements applies unilaterally to all child molesters, regardless of the

offender's relationship to his victim or extenuating circumstances, such as treatment

received while in custody.^' The offender must locate the addresses of all households

within the prescribed mailing area, and bear the cost ofmailing the postcards and placing

the newspaper advertisements.^^

C. The Violent Crime Control and Law Enforcement Act of1994

The Violent Crime Control and Law Enforcement Act of 1994 requires states to enact
sex offender registries by August 1997 in compliance with guidelines established by the

United States Attorney General.^^ All persons convicted of sex crimes against children

are required to register for ten years after they are released from prison or placed on parole

or probation.^"* In addition, offenders who are designated as sexually violent predators by
the sentencing court are required to register until a determination is made that they no

longer suffer from a mental abnormality or personality defect which would make them

likely to sexually abuse children whom they either do not know or have befriended for the
primary purpose of victimization.^^

Information collected in approved state registries will be treated as private data, but

it may be disclosed to law enforcement agencies for law enforcement purposes or to
government agencies conducting confidential background checks. In addition, law

enforcement agencies are authorized to release relevant information concerning a specific

registrant that is necessary to protect the public. Law enforcement agencies and
employees, as well as state officials, are granted immunity from liability if they act in

good faith.'^

89. 19 La. Reg. 1247 (stating that the Board may release the following information to the general

public: name, address, crime convicted, date of conviction, date of release, and any other information that may

be necessary and relevant for public protection).

90. Id.

91

.

La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994); La. Rev. Stat. Ann. § 1 5:574.4 (West

Supp. 1993). Ironically, an offender may petition the court to be relieved of the lesser duty to register. SeehK.

Rev. Stat. Ann. § 15:544 (West Supp. 1994) (The court shall consider the nature of the sex offense, the

criminal and relevant non-criminal behavior both before and after conviction, and other factors.).

92. Tyler, supra note 72, at A 1

.

93. 42 U.S.C.A. § 14071 (West 1994).

94. Id. The registration requirement applies to any criminal offense that consists of the following:

kidnapping and false imprisonment of a minor, except by a parent; criminal sexual conduct toward a minor;

solicitation of a minor to engage in sexual conduct or practice prostitution; use of a minor in a sexual

performance; any conduct that by its nature is a sexual offense against a minor; or an attempt to commit the

listed offenses if made criminal by the state. Id.

95. Id.

96. Id.



1 995] CHILD MOLESTER NOTIFICATION 727

The federal language was modeled loosely after the Washington community

notification statute. House-Senate conferees who drafted the provision have indicated that
they intended it to be given the same interpretation that the Washington Supreme Court

gave to its state statute in State v. Ward.^^ Under this view, participating states would be

prohibited from conducting across-the-board notification on all child sex offenders or

from opening the registries to public scrutiny. Disclosure would be limited to relevant

information about offenders who pose a threat to public safety.

III. State and Federal Constitutional and Common Law Constraints

A. Potential Eighth Amendment and Ex Post Facto Problems

But the point which drew all eyes, and, as it were, transfigured the wearer . . .

was that SCARLET LETTER, so fantastically embroidered and illuminated up
on her bosom. It had the effect of a spell, taking her out of ordinary relations

with humanity, and enclosing her in a sphere by herself
^^

In The Scarlet Letter, Nathaniel Hawthorne tells the tale of Hester Prynne, the

fictional adulteress forced to wear a scarlet "A" on her chest. Scorned and segregated

from society, Hester Prynne was subjected to the early practice of punishment by

humiliation.^^

Like Hester Prynne, child molesters are singled out when public attention is called

to their criminal acts. The stated goal of these so-called "scarlet letter" laws is not

punishment nor humiliation,'^ regardless ofhow punishing or humiliating the effects may

prove to be. Instead, the stated goal is community protection—to alert an unwitting public
that a potential predator is in its midst.

'^'

When the public is put on watch, however, the released child molester may face
adverse consequences.'^^ Whether community notification will withstand constitutional

scrutiny hinges primarily on whether the courts construe these consequences as

punishment.
'^^

1. Is Community Notification Punishment?—The concept of punishment is central
to the interpretation of the Eighth Amendment, which proscribes "cruel and unusual

97. 1 40 Cong. Rec. H8957 (daily ed. August 21,1 994) (statement of Rep. Derrick).

98. Nathaniel Hawthorne, The Scarlet Letter 53 (Bantam Classic ed., 1986) (1850).

99. Christopher Harding & Richard W. Ireland, Punishment: Rhetoric, Rule, and Practice
198 (1989). The targeting of reputation, self-esteem, and community standing is a pervasive penal practice.

Penalties of degradation widely employed at different times in western legal systems include the pillory, the

stool of repentance, and the enforced wearing of large symbolic letters or inscriptions. Id. at 199.

100. See supra text accompanying note 29.

101

.

See supra text accompanying note 29.

1 02. See supra notes 31-33 and accompanying text.

103. See generally Maria Foscarinis, Note, Toward a Constitutional Definition of Punishment, 80

COLUM. L. Rev. 1667 (1980). Courts have approached the definition of punishment by focusing on three

different factors: the character of the punisher's intent, the effects suffered by the punished individual, and the

power of the punisher. Id.



728 INDIANA LAW REVIEW [Vol. 28:715

punishments," '^'^ and the Ex Post Facto Clause, '^^ which prohibits punishments that are
imposed retroactively.'^^ Statutes creating sex offender registries have been challenged

on both bases.
'^^

Since community notification is a statutory expansion of the sex

offender registration concept, analysis of the courts' treatment of such registries is useful

in determining whether a court would define community notification as punishment.

a. Registration and notification as punishment.—Although courts in Louisiana'^^ and
California' ^^ have found registration to be punitive, the majority of cases upholding

mandatory registration of sex offenders conclude that registration is not a form of

punishment."" Two recent cases typify state courts' analysis in this area.
In State v. Noble,

'

" a convicted child molester who committed his crimes prior to the
enactment of Arizona's sex offender registry challenged the retrospective application of

the statute. Acknowledging that the registration requirement altered Noble's situation to

his disadvantage, the state's high court nonetheless determined that it was not

punishment."^ The Washington Supreme Court reached a similar conclusion in State v.

104. U.S. Const, amend. VIII. Although originally the Bill of Rights was held to apply only to the

federal government, in 1962 the U.S. Supreme Court applied the Cruel and Unusual Punishment Clause to the

states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962), reh 'g denied, 371 U.S.

905(1962).

105. U.S. Const, art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.").

106. Although the Clause does not employ the term "punishment," courts have generally applied its

prohibitions to punishments. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (Ex Post Facto Clause

prohibits every change in the law that inflicts a greater punishment than the law annexed to the crime at the time

it was committed).

107. See State v. Noble, 829 P.2d 1217, 1218 (Ariz. 1992); In re Reed, 663 P.2d 216, 217 (Cal. 1983).

These cases involved challenges under state constitutions; however, the high courts of both states adopted the

U.S. Supreme Court's interpretation of federal constitutional language in interpreting parallel clauses in their

own states' constitutions. Courts have adopted several different models in analyzing parallel constitutional

provisions. See Mark A. Silverstein, Note, Privacy Rights in State Constitutions: Modelsfor Illinois?, 1989 U.

III. L. Rev. 215. Under the primacy approach, state courts decide state claims first, and if the state constitution

provides the requested relief, the state court need not consider the federal constitutional claim. Under the

supplemental approach, state courts first analyze federal constitutional law, and if the Constitution does not

provide the requested relief, the court turns to the state constitution as a potential supplement. Some courts

follow a dual approach, analyzing state and federal claims together and necessarily adopting the Supreme

Court's interpretation as authority. Id. at 217. For purposes of discussion, this Note generally follows the dual

approach.

108. State v. Payne, 633 So. 2d 701, 703 (La. Ct. App. 1993), cert, denied. 637 So. 2d 497 (La. 1994).

109. In re Reed, 663 P.2d 216, 220 (Cal. 1983).

110. National Center for Missing and Exploited Children, The Constitutionality of

Statutes Requiring Convicted Sex Offenders to Register with Law Enforcement (1993).

111. State V. Noble, 829 P.2d 1217 (Ariz. 1 992).

112. Id. at 1224. See also People v. Adams, 581 N.E.2d 637, 641 (111. 1991) (holding that registration

as a sex offender is not punishment for purposes of Eighth Amendment analysis); State v, Costello, 643 A.2d

531,532(N.H. 1994).



1995] CHILD MOLESTER NOTIFICATION 729

Ward,^^^ where a convicted statutory rapist unsuccessfully challenged Washington's

registration statute as an ex post facto law.

The threshold inquiry adopted by both courts was whether the legislature intended

the registry to be a means of punishing sex offenders or merely a tool to regulate their

activities."'* The punishment versus regulation analysis has been used by the United

States Supreme Court to both uphold"' and strike"^ statutes that were challenged under

the federal Constitution. The inquiry is "whether the legislative aim was to punish that

individual for past activity, or whether the restriction of the individual comes about as a

relevant incident to a regulation of a present situation.""^

If the legislative aim is punitive, the registration requirement is treated as

punishment."^ If the legislature indicates a non-punitive purpose, the court must inquire

whether "the statutory scheme was so punitive either in purpose or effect as to negate that

intention.""^ If no conclusive evidence of legislative intent is available, however, courts

considering registration statutes have generally turned to the factors enumerated by the

United States Supreme Court in Kennedy v. Mendoza-Martinez'}^^

Whether the sanction involves an affirmative disability or restraint, whether it

has historically been regarded as a punishment, whether it comes into play only

on a finding oiscienter, whether its operation will promote the traditional aims

of punishment—retribution and deterrence, whether the behavior to which it
applies is already a crime, whether an alternative purpose to which it may
rationally be connected is assignable for it, and whether it appears excessive in

relation to the alternative purpose assigned are all relevant to the inquiry, and

may often point in differing directions.'^'

Noble, Ward and State v. Taylor^^^ illustrate the interplay between application of the

Mendoza-Martinez factors and a conclusive finding of legislative intent. In Noble, the

Arizona high court applied the Mendoza-Martinez factors after ascertaining that the

113. 869 P.2d 1062 (Wash. 1994).

1 14. Noble. 829 P.2d at 1221; Ward, 869 P.2d at 1068.

115. De Veau v. Braisted, 363 U.S. 144, 158 (1960), reh 'g denied, 364 U.S. 856 (1960) (provision of

New York Waterfront Commission Act that disqualifies ex-felons from union office is a legitimate means for

regulating the waterfront and is not an ex post facto law).

116. Trop V. Dulles, 356 U.S. 86, 97 (1958) (plurality opinion) (denationalization of a soldier for one

day's desertion is cruel and unusual punishment and is not even claimed as a means of solving international

problems).

117. De Feat/. 363 U.S. at 160.

118. A^oWe. 829P.2datl221.

1 1 9. Id (quoting United States v. Ward, 448 U.S. 242, 250 ( 1 980)). See also State v. Ward, 869 P.2d

1962, 1068 (Wash. 1994).

120. 372 U.S. 144, 168-69 (1963). See also State v. Noble, 829 P.2d 1217, 1221 (Ariz. 1992); In re

Reed, 663 P.2d 216, 218 (Cal. 1983); People v. Adams, 581 N.E.2d 637, 641 (111. 1991); State v. Ward, 869 P.2d

1062, 1068 (Wash. 1994); State v. Taylor, 835 P.2d 245, 248 (Wash. Ct. App. 1992), review denied, %11 P.2d

695 (Wash. 1994).

121. Mendoza-Martinez, 111 U.S. at 1 68-69 (footnotes omitted).

122. 835 P.2d 245 (Wash. Ct. App. 1992), rev/ew denied. %11 P.2d 695 (Wash. 1994).



730 INDIANA LAW REVIEW [Vol. 28:715

legislative history did not indicate whether the statute was intended to be punitive or
regulatory. The court acknowledged that while Arizona's sex-offender registration statute

has both punitive and regulatory effects, its task was not simply to count the factors on

each side, but to weigh them.'^'' Pointing toward punishment was the court's conclusion

that registration has traditionally been regarded as punitive'^'* and that the registration

requirement serves at least one of the traditional goals of punishment—deterrence. '^^
Factors which indicated a non-punitive construction were the court's determination that

registration does not affirmatively inhibit or restrain an offender's activities'^^ and that the

requirement is not excessive in relation to the statute's non-punitive purpose of aiding law

enforcement.'^^

Stressing that its decision was "close," the court concluded that the overriding

purpose of the registry was to facilitate the location of child molesters by law enforcement

personnel, a purpose unrelated to punishment for past offenses.'^* Critical to this finding,

however, was the fact that "[rjegistrants are not forced to display a scarlet letter to the

world; outside of a few regulatory exceptions, the information provided by sex offenders

pursuant to the registration statute is kept confidential.'*'^' The provisions in the statute

limiting access to the registration information significantly dampen its stigmatic, and thus

punitive, effect.
'^^

In Taylor, the Washington Court of Appeals looked to the legislature's official

findings and determined that the registration statute was primarily regulatory in

purpose.'^' As such, the Mendoza-Martinez factors had no application. The court's

inquiry did not end there, however; additional consideration was needed to determine

whether the punitive aspects were so burdensome as to amount to a violation of the ex

post facto prohibition.'^^

123. A^oWe. 829 P.2d at 1224.

124. Id. at 1222.

125. Id. at 1223.

126. /^. at 1222.

127. Id at 1223.

128. Id at 1224.

1 29. Id. The information may be released to: non-criminal justice agencies for evaluating prospective

employees, public officials, or volunteers; governmental licensing agencies for evaluating prospective licensees;

prospective employers and volunteer youth-service agencies whose activities involve regular contact with

minors; and the department of economic security and the superior court for determining the fitness of

prospective custodians ofjuveniles. Id. at 1 222 n.8.

130. Id. at 1223. See also People v. Adams, 581 N.E.2d 637, 641 (111. 1991) (The existence of a stigma

requires that knowledge ofa registrant's past transgressions be conveyed to the general public, which is unlikely

since the statute imposes criminal sanctions on law enforcement officials who disseminate registry information

to the public).

131. State V. Taylor, 835 P.2d 245, 246 (Wash. Ct. App. 1992), review denied, Sll P.2d 695 (Wash.

1994). See WASH. Rev. CODE ANN. § 9A.44.130 (West Supp. 1993) (noting the legislature's finding that law

enforcement's efforts to protect their communities from sex offenders are impaired by the lack of information

about convicted sex offenders who live within an agency's jurisdiction).

132. Zflyor. 835 P.2d at 248.



1 995] CHILD MOLESTER NOTIFICATION 73

1

Acknowledging that the community notification component of Washington's

registration statute could restrict change of residence—diminishing chances of
employment—and impose a stigma on the offender, the court nonetheless held that these
disadvantages were relatively minor and not sufficient to make the statute punitive in its

overall effect. '^^ Central to the court's analysis was that much of the data in the registry

was public information generally available to interested persons who make a reasonable
effort to obtain it.'^"* In a strongly worded dissent, Judge Agid noted that the "mere fact

that bits and pieces of the information appear in various public records does not answer

the concern that ... a sex offender is denied privacy rights such as an unlisted telephone

number and address that other convicted felons enjoy."'^^ The dissent also noted that

groups wishing to find and publicize the location of convicted sex offenders would have

ready access to the information, which would add immeasurably to the stigma,
^^^

Two years later, the majority view in Taylor was reinforced by the Washington
Supreme Court in State v. Ward}'^^ Noting that the Mendoza-Martinez factors should be

used when a conclusive finding of legislative intent is unavailable,'^^ the court

nevertheless applied the test to determine whether the registration statute was so punitive

as to negate the legislature's clear regulatory intent.
'^^

The Ward court disagreed with the Arizona Supreme Court's finding in Noble, and

held that registration has not traditionally been regarded as punitive.''**^ Any deterrent
effect of registration was secondary to the goal of protecting the public.'"*' In addition,

neither the requirement of registration nor the potential for public disclosure involved an

affirmative disability or restraint because offenders could move freely throughout the

state.'^^

Although the Ward defendants had not been subject to disclosure, the state's high

court embraced the opportunity to interpret the community notification provisions. The

court found that because the legislature limited disclosure to instances in which the

offender posed a threat to the community, the statutory registration and notification

scheme did not impose additional punishment.'"*^ This limit "ensures that disclosure

133. Mat 249.

134. Id. However, such mformation is seldom readily available. The fact that government funds are

spent to prepare, index, and maintain criminal history files demonstrates that the individual items of information

would not otherwise be freely available. United States Dep't of Justice v. Reporters Comm., 489 U.S. 749, 764

(1989).

135. Taj'/or, 835 P.2d at 250 (Agid, J., dissenting).

1 36. Id. Such efforts have been launched in Washington. See Karen Alexander, Sex Offender Map Stirs

Controversy, SEATTLE TIMES, Sept. 24, 1993, at Bl.

137. 869 P.2d 1062 (Wash. 1994).

138. Id at 1069.

139. Id at 1068.

140. Id at 1072-73.

141. Mat 1073.
142. Id at 1069.

143. Id. at 1069-70. Contra Artway v. Attomey Gen. ofNew Jersey, No. 94-6287, 1995 U.S. Dist. Lexis

2403, at *91 (D. N.J. Feb. 28, 1995) (holding that the public notification provisions ofNew Jersey's "Megan's

Law" constitute more a form of punishment than a regulatory scheme).



732 INDIANA LAW REVIEW [Vol. 28:715

occurs to prevent future harm, not to punish past offenses.""*^ In addition, "[a]ny

publicity or other burdens which may result from disclosure arise from the offender's
future dangerousness, and not as punishment for past crimes."'^^

Acknowledging that high courts in other states, like the court in Noble, have held that

any punitive effect of registration was mitigated by confidentiality,"*^ the Ward court
nonetheless said that the Noble decision supported its holding. In Noble, the decisive

factor was that the overriding purpose of the registry was to enable law enforcement

officials to track down child sex offenders, a purpose unrelated to punishment."*^
Similarly, the overriding purpose of the Washington statute was to protect the public.'"**

A federal district court in New Jersey, however, recently held that the notification
provisions of a newly enacted state statute similar to the Washington law''*^ constituted

more a form of punishment than a regulatory scheme. '^'^ "Megan's Law" was hastily
adopted in late 1994 by the New Jersey legislature following the brutal rape and murder
of seven-year-old Megan Kanka by a twice-convicted sex offender who lived across the
street from Megan's home, unbeknownst to the child or her parents.'^' Although

registration information itself is not open to public inspection under the statute, law

enforcement agencies are authorized to release relevant and necessary information

concerning specific sex offenders in order to protect the public. County prosecutors are

charged with the responsibility ofdetermining whether a registrant poses a low, moderate,

or high risk. The breadth of community notification is based on the offender's risk

classification.'^^

Applying the Martinez-Mendoza factors to the notification provisions of "Megan's

Law," the court concluded that the legislature's stated regulatory intent was outweighed

by the punitive aspects of community notification.'^^ In particular, the court noted that

Megan's Law far exceeded all previous provisions for public access to an individual's
criminal history.'^"* Rather than lying potentionally dormant in a courthouse record room,

sex offenders' records would remain with them for as long as they live in New Jersey,
potentially affecting their ability to return to a normal, private law-abiding life in the

community.
'^^

1 44. Ward, 869 P.2d at 1 070.

145. Id. at 1071.

146. Id

1 47. Id (citing Noble. 829 P.2d 1 2 1 7 (Ariz. 1 992)).

148. Id. The court also distinguished its holding from People v. Adams, 581 N.E.2d 637 (111. 1991),

noting that stigma arises not from disclosure, but from private reactions to the crime by members of the general

public. Ward. 869 P.2d at 1072.

1 49. 1 994 N.J. Sess. Law Serv. 1 28 (West).

1 50. Artway v. Attorney Gen. ofNew Jersey, No. 94-6287, 1995 U.S. Dist. LEXIS 2403, at *92 (D. N.J.

Feb. 28, 1995).

151. Mat*4-5.

152. /f/. at 5-6 (citing 1 994 N.J. Sess. Law Serv. 1 28 (West)).

153. Id2X*9\.

154. Id2X*m.

155. /t/. at*79-81.



1995] CHILD MOLESTER NOTIFICATION 733

While the Mendoza-Martinez factors have been widely employed in challenges to

registration statutes, the Louisiana Court of Appeals used a different analysis to find that

registration a was punitive measure. In State v. Payne,^^^ the court struck the registration

requirement as applied to a former church worker who molested five young boys prior to

the enactment of the law. Registration could not be imposed as a condition of probation

because the legislation authorizing such a condition was not in place at the time the

defendant committed his crimes. '^^ Nor could it be imposed under the registration statute

because the defendant would be sanctioned if he failed to comply.
'^^ As a result,

registration exposed the offender to additional penalties for his criminal conduct, which

is prohibited under the Ex Post Facto Clause.
*^^

Legislatures considering the adoption of community notification, either in

conjunction with the Violent Crime Control and Law Enforcement Act of 1994 or through
more aggressive means such as public sex offender registries or Louisiana's "scarlet

letter" conditions, '^^ have no clear guidance as to whether the courts of their state will

deem the provisions punitive and thus subject to Eighth Amendment and ex post facto

scrutiny. The handful of courts that have ruled directly on a registration statute that grants

immunity to law enforcement officials who disclose information about sex offenders are
split. The Louisiana Court of Appeals found its state's registration and notification

scheme to be punitive;'^' the Washington Supreme Court held the converse to be true of

its state's statute. '^^ A federal court in New Jersey recently held that the registration
component of a sex offender notification scheme was non-penal, but barred retrospective

application of the notification provisions because it found them to be punitive. '^^ The

high courts of three other states—Arizona,'^"* lUinois,'^^ and New Hampshire^^^—have
deemed their respective states' sex offender registries non-punitive partly because the

information is, with few exceptions, kept confidential. One state—California—concluded
more than a decade ago that the registration requirements alone imposed punishment

under the Mendoza-Martinez factors. '^^ To date, no state courts have had the opportunity

to rule on the punitive effect of a sex offender registry that is open to the general public.

Merely labeling a statute as regulatory will not automatically remove it fi'om

punishment analysis. '^^ The United States Supreme Court noted in Trop v. Dulles, that

156. State v. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert, denied. 637 So. 2d 497 (La. 1994).

157. Mat 703.
158. Id

159. Mat 702-03.
160. See supra ^2lt\.\\.

161. State V. Babin, 637 So. 2d 8 1 4 (La. Ct. App. 1 994), cert, denied, 644 So. 2d 649 (La. 1 994); State

V. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert, denied, 637 So. 2d 497 (La. 1994).

1 62. State v. Ward, 869 P.2d 1 062 (Wash. 1 994).

1 63. Artway v. Attorney Gen. ofNew Jersey, No. 94-6287, 1 995 U.S. Dist. LEXIS 2403, at *92 (D. N.J.

Feb. 28, 1995).

1 64. State v. Noble, 829 P.2d 1 2 1 7, 1 224 (Ariz. 1 992).

165. People v. Adams, 581 N.E.2d 637, 641 (III. 1991).

1 66. State v. Costello, 643 A.2d 531,533 (N.H. 1 994).

167. /nreReed,663P.2d216,220(Cal. 1983).

168. See Foscarinis, supra note 103, at 1672, for a discussion of the problems inherent in applying the



734 INDIANA LAW REVIEW [Vol. 28:715

"even a clear legislative classification of a statute as 'non-penal' would not alter the

fundamental nature of a plainly penal statute.
"'^^

Thus, a statute that opens the sex offender registry to the public or grants immunity

to officials who spread the word about released sex offenders will be analyzed for punitive
effect regardless of the label or legislative history. If public access to sex offender

registries and public release of sex offender information is found to be punitive, as

Noble^^^ and other cases'^' have implied, such provisions would be ripe for Eighth

Amendment and ex post facto analysis.

b. Parole andprobation conditions as punishment.—In addition to granting public
access to the sex offender registry, the Louisiana legislature also required as a condition

of parole or probation that convicted child molesters notify the community through

postcards and classified advertisements.'^^ Judges and the parole board were granted the

express authority to impose additional "scarlet letter" conditions, such as requiring

released offenders to post signs or wear special clothing. '^-^ As with other forms of

community notification, these conditions would be vulnerable to Eighth Amendment and

ex post facto challenges if the goal and effect is found to be punitive.

In State v. Babin,^^"^ the Louisiana Court of Appeals held that applying notification

requirements to a defendant who committed his crimes prior to the enactment of the law
was an unconstitutional violation of the state and federal Ex Post Facto Clauses. Greg

Babin molested his stepdaughter over a period of several years, beginning when the child

was in third grade. He was sentenced to four years hard labor, suspended, and placed on
supervised probation for five years subject to special conditions. As mandated by

statute,
'^^

these conditions required Babin to mail postcards to his neighbors and contact

"express punitive intent" test. The author notes that the same statute might be found to impose punishment if

passed by a legislature that showed evidence of actual punitive intent and not to impose punishment if passed

by a legislature not evidencing such a motive. Foscarinis, supra note 103, at 1672.

1 69. Trop V. Dulles, 356 U.S. 86, 95 (1958) (plurality opinion). For example, the penal effect of a statute

imposing the penalty of imprisonment on convicted bank robbers would not be altered by labeling it a regulation

of banks. Id.

1 70. State v. Noble, 829 P.2d 1 2 1 7, 1 224 (Ariz. 1 992) ("[PJotentially punitive aspects ofthe statute have

been mitigated. Registrants are not forced to display a scarlet letter to the world.").

171. See, e.g., People v. Adams, 581 N.E. 2d 637, 641 (111. 1991) ("The existence of a 'stigma' requires

that ... the registrant's past transgressions be conveyed to the general public").

172. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994); La. Rev. Stat. Ann. § 15:574.4 (West

Supp. 1994).

173. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994); La. Rev. Stat. Ann. § 15:574.4 (West

Supp. 1994). Judges in other states have imposed similar probation conditions absent express statutory

authority. See State v. Bateman, 771 P.2d 314 (Or. Ct. App. 1989), review denied, 111 P.2d 410 (Or. 1989).

See also Molester Sign Violates Rights, ICLU Claims, supra note 86. Some commentators have argued that such

conditions amount to judicial legislation and are improper if imposed in the absence of express statutory

authorization. See Jon A. Brilliant, Note, The Modern Day Scarlet Letter: A Critical Analysis ofModern

Probation Conditions, 1989 DUKE L.J. 1357 (1989); Rosalind K. Kelley, Comment, Sentenced to Wear the

Scarlet Letter: Judicial Innovations in Sentencing—Are They Constitutional?, 93 DiCK. L. REV. 759 (1989).
1 74. State v. Babin, 637 So. 2d 8 14 (La. Ct. App. 1 994), cert, denied, 644 So. 2d 649 (La. 1 994).

1 75. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994).



1995] CHILD MOLESTER NOTIFICATION 735

area schools with information concerning his crime and release. Citing State v. Payne,
^^^

the court struck the notification requirement as applied to the defendant. '^^ Implicit in its

holding was the conclusion that such conditions were punitive.

Parole and probation have traditionally been considered acts of grace allowing

offenders to avoid punishment as long as they adhere to certain conditions. '^^ Under this

approach, a probationer or parolee who finds the conditions of release to be too tough may

elect to take the traditional sentence.
'^^

Most states, either by statute'^^ or judicial decision,'^' specify that rehabilitation is

one of the goals to be served by imposing probation conditions. Virtually no statutes

describe the goals of parole conditions; the few that include stated goals generally focus

on some aspect of rehabilitation.'^^ Protection of the public is also considered a legitimate

goal of parole and probation.
'^^

Disagreement exists, however, as to whether parole or

probation conditions may be used to inflict punishment.
'^^

Under a traditional legislative intent test,'^^ parole and probation conditions would

be considered non-punitive in jurisdictions where the goal is rehabilitation or community

176. 633 So. 2d 701 (La. Ct. App. 1993), cert, denied, 637 So. 2d 497 (La. 1994).

177. 5aZ7m, 637So. 2dat814.

178. Cohen & Gobert, supra note 35, at 161-78.
1 79. Id. The theory ofparole as an act ofgrace ameliorating punishment is no longer valid in states with

determinate sentencing structures, where an offender has no choice of accepting or rejecting parole after his

statutorily-determined sentence has been served. Over the past 20 years, most jurisdictions have adopted

determinate sentencing schemes. See Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the

Effectiveness ofDeterminate Sentencing Reform, 81 Cal. L. Rev. 61 (1993). This theory also lacks vitality in

the area ofprobation, where a convicted child molester might be willing to accept almost any condition in order

to avoid the physical abuse that invariably awaits such offenders in prison. See James E. Robertson, The

Constitution in Protective Custody: An Analysis ofthe Rights ofProtective Custody Inmates, 56 LI. CiN. L. Rev.

91, 102 (1987).

180. See, e.g.. Ark. Code. Ann. § 5-4-303(a) (Michie 1993) ("assist the defendant in leading a

law-abiding life"); Conn. Gen. Stat. Ann. § 53a-30(a)(12) (West Supp. 1993) (any conditions reasonably

related to his rehabilitation); loWA CODE Ann. § 907.7 (West 1994) ("provide the maximum opportunity for

rehabilitation of the defendant"); ME. Rev. Stat. Ann. tit. 17-A, §1204-2-m (West 1983) ("reasonably related

to . . . rehabilitation"); N.M. Stat. Ann. § 31-20-6(F) (Michie 1994) ("reasonably related to . . . rehabilitation");

Ohio Rev. Code Ann. § 2951.02(c) (Anderson 1993) (rehabilitate offender).

181. See, e.g.. People v. Keller, 1 43 Cal. Rptr. 1 84, 1 87 (Cal. Ct. App. 1 978), overruled on other grounds

sub nom.. People v. Welch, 19 Cal. Rptr. 2d 520, 526 (Cal. 1993); Hines v. State, 358 So. 2d 183, 185 (Fla.

1978); State v. Mummert, 566 P.2d 1 1 10, 1 1 12 (Idaho 1977).

182. IND. Code § 11-13-3-4 (1993) (successfiil reintegration into the community).

183. Cohen & Gobert, supra note 35, at 183. See also United States v. Consuelo-Gonzalez, 521 F.2d
259, 264 (9th Cir. 1975) (The only permissible probation conditions are those that contribute significantly both

to the rehabilitation of the convicted person and the protection of the public.) (emphasis added).

1 84. Cohen & Gobert, supra note 35, at 1 84. Courts have concluded that while probation conditions
may have an incidental punitive effect, punishment may not be the primary purpose. E.g., Higdon v. United

States, 627 F.2d 893, 898 (9th Cir. 1980).

1 85. See Foscarinis, supra note 1 03, at 1 670-75, for a thorough description ofthe expressed and inferred

legislative intent tests.



736 INDIANA LAW REVIEW [Vol. 28:715

protection.
'^^

However, courts have shown an increased willingness to allow Eighth

Amendment challenges if the actual effect of the condition is punitive. '^^ States that allow
such harsh conditions like those imposed by the Louisiana statute '^^ should be prepared

to face ex post facto and Eighth Amendment challenges.

2. Ex Post Facto.—In Calder v. Bull, the United States Supreme Court held that the
Ex Post Facto Clause prohibited "[ejvery law that changes the punishment, and inflicts
a greater punishment, than the law annexed to the crime, when committed."' ^^ The
purpose of the Clause is to assure that penal statutes provide "fair warning of their effect

and permit individuals to rely on their meaning until explicitly changed."'^^ Two elements
must be present for a penal law to be ex post facto: "it must be retrospective, and it must

disadvantage the offender affected by it."'^' No ex post facto violation occurs if the
statute merely changes the procedures under which a criminal case is adjudicated as

opposed to changing the substantive law.'^^

Several cases have addressed the retrospective application of sex offender registration

and community notification. The Louisiana Court of Appeals, finding registration and

notification to be punitive, has barred the application ofthese requirements to defendants

1 86. See supra notes 1 80-8 1 and accompanying text. See also Springer v. United States, 148 F.2d 41

1

(9th Cir. 1945) (dictum):

The conditions ofprobation are not punitive in character and the question ofwhether or not the terms

are cruel and unusual and thus violative of the Constitution of the United States does not arise for

reason that the Constitution applies only to punishment. These conditions of probation are intended

to be an amelioration of the punishment prescribed by law for the given offense.

Mat 41 5.
187. Sweeney v. United States, 353 F.2d 10, 1 1 (7th Cir. 1965) (requirement that alcoholic refrain from

drinking held invalid); Dear Wing Jung v. United States, 312 F.2d 73, 75-76 (9th Cir. 1962) (requirement that

defendant leave the country held invalid); Maggard v. Moore, 613 F. Supp. 150, 152 (W.D. Mo. 1985) (parole

eligibility constitutes part ofpunishment); Goldschmitt v. State, 490 So. 2d 123, 125 (Fla. Dist. Ct. App. 1986),

review denied, 496 So. 2d 142 (Fla. 1986) (requiring offender to affix "CONVICTED DUI" bumper sticker on

his car heightens the deterrent, and thus the rehabilitative, effect ofpunishment); Bienz v. State, 343 So. 2d 913,

915 (Fla. Dist. Ct. App. 1977) (requiring adult male to wear diapers in public as condition of probation held so

harsh as to counteract the concept of rehabilitation). There have been relatively few challenges of probation or

parole conditions under state constitutions, even though most state constitutions carry the same guarantees as

the federal Constitution. COHEN & GOBERT, supra note 35, at 212. Cohen and Gobert attribute this trend to
weak state constitutions, a preference for the federal forum, or a tactical decision to employ the federal

Constitution so that decisions on point from other jurisdictions can be used more persuasively. COHEN &
Gobert, supra note 35, at 212.

188. See supra notes 172-77 and accompanying text.

189. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). The clause applies to both the severity and the

mode of punishment. See Beazell v. Ohio, 269 U.S. 167, 170 (1925) ("[T]he nature or amount of the

punishment . . . should not be altered by legislative enactment, after the fact, to the disadvantage of the

accused.").

1 90. Weaver v. Graham, 450 U.S. 24, 28-29 (1981).

191. /J. at 29.

192. Collins v. Youngblood, 497 U.S. 37, 45 (1990).



1 995] CHILD MOLESTER NOTIFICATION 737

who committed their crimes prior to the legislative enactment. '^^ Conversely, the high
courts of Washington,'''* Arizona,''^ and New Hampshire''^ have held that registration is
regulatory, not penal, and thus does not violate the state or federal prohibition against ex

post facto laws. Critical to the Arizona and New Hampshire courts* decisions in Noble
and Costello, however, was the fact that the information contained in the registry was not

accessible to the general public.''^ Although the challenged Washington statute provided

for widespread community notification, the Washington Supreme Court stressed that the

law imposed "significant limits*' on the information that could be disclosed.''^

Construing a New Jersey statute similar to the Washington law, however, a federal
district court recently held that community notification violated Ex Post Facto Clause of

the U.S. Constitution. ''' The court did allow retrospective application of the state's sex

offender registration requirement, provided that the information was not disseminated to

the public and was only made available to law enforcement agencies.^°°

In light of this reasoning, ex post facto challenges could pose a serious problem to

states that open sex offender registries to the public. As of 1991, more than 66,000 sex

offenders were serving time in state prisons.^^' If unrestricted public access to registries

is found to be punitive, as Noble^^^ Artway^^^ and other cases^*^ have implied, then states

would not be able to apply the registration requirement to the thousands ofoffenders who
committed their crimes prior to the legislative enactment. Retroactive application would

also be barred in jurisdictions that find the registration requirements, standing alone, to

be punitive.^®^

Some community notification statutes also grant immunity to law enforcement

officials who release information about specific offenders, regardless of whether the
information was obtained from the registry.^^^ While not directly "annexed to the

193. State v. Babin, 637 So. 2d 814 (La. Ct. App. 1994), cert, denied. 644 So. 2d 649 (La. 1994); State

V. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert, denied, 637 So. 2d 497 (La. 1994).

194. State v. Ward, 869 P.2d 1062, 1069 (Wash. 1994). See also State v. Taylor, 835 P.2d 245, 249

(Wash. Ct. App. 1992), review denied. %11 P.2d 695 (Wash. 1994); State v. Estavillo, 848 P.2d 1335, 1337

(Wash. Ct. App. 1 993), review denied, 859 P.2d 602 (Wash. 1 993).

1 95. State v. Noble, 829 P.2d 1 2 1 7, 1 224 (Ariz. 1 992).

196. State v. Costello, 643 A.2d 531, 533 (N.H. 1994).

197. Noble, 829 P.2d at 1224; Costello, 643 A.2d at 533.

198. Ward, 869 P.2d at 1069-70.

199. Artway, 1995 U.S. Dist. LEXIS 2403, at *92.

200. Id

201. Bureau of Justice Statistics, U.S. Dep't of Justice, Survey of State Prison Inmates 4

( 1 99 1 ) (includes sex offenses against women, children, and men).

202. Noble. 829 P.2d at 1224 ("[P]otentially punitive aspects of the statute have been mitigated.

Registrants are not forced to display a scarlet letter to the world . . . .").

203. Artway, 1995 U.S. Dist. LEXIS 2403, at *92.

204. See. e.g.. People v. Adams, 581 N.E.2d 637, 641 (111. 1991).

205. In re Reed. 663 P.2d 216, 217 (Cal. 1983); State v. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert,

denied. 637 So. 2d 497 (La. 1994).

206. 42 U.S.C.A. § 14071 (West 1994); La. Rev. Stat. Ann. § 15:546 (West Supp. 1994); Wash. Rev.

Code Ann. § 4.24.550 (West Supp. 1994).



738 INDIANA LAW REVIEW [Vol. 28:715

crime,"^^^ the effect of this immunity nonetheless makes community notification under

this provision vulnerable to ex post facto challenges. In Weaver v. Graham^^^ the United

States Supreme Court held that a change in Florida's "gain time for good conduct" statute

was a violation of the Ex Post Facto Clause, regardless of whether it was "in some
technical sense part of the sentence."^^^ The critical question was whether the statute

altered the effective sentence to the offender's disadvantage.^'^

The practical effect of a child molester's sentence will be altered if law enforcement

officials are allowed to publicize the offender's criminal history and address upon release.

Recognizing that prisons are dangerous places for child molesters,^" defendants may plea
bargain in order to obtain an early release. If the public is notified prior to release, the

conditions upon release will likely be very different than those for which they bargained.

As the Supreme Court noted in Cummings v. Missouri^^^ the "Constitution deals with

substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended

that the rights of the citizen should be secure against deprivation for past conduct by

legislative enactment, under any form, however disguised.*'^ *^

3. Cruel and Unusual Punishment.—The Eighth Amendment provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted."^'"* This prohibition, which has been applied to the states through

the Fourteenth Amendment,^ '^ circumscribes both the types^'^ and severity^ *^ of

punishment that may be imposed by the legislature^'^ for crimes. Reviewing courts should
grant substantial deference to the legislature's broad authority, but no penalty is per se

constitutional.^'^

Judicial review ofpenal statutes is complicated by the failure ofthe courts to develop

a single definition of "cruel and unusual."^^^ The United States Supreme Court recognized

that the phrase is not static, but must "draw its meaning from the evolving standards of

207. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). See also ^Qa\QT v. Graham, 403 U.S. 24, 31

(1981).

208. 450 U.S. 24 (1981).

209. Id. at 32.

2 1 0. Id. at 34. The Court noted that such provisions play an integral role in whether a defendant opts

to plea bargain. Id. at 32. See supra text accompanying note 191.

211. Robertson, supra note 1 79.

212. 4 71 U.S. 277,325(1866).

213. Id ax 325.

2 1 4. U.S. CONST, amend. VIII.

215. Robinson v. California, 370 U.S. 660, 675 (1962).

2 1 6. Ingraham v. Wright, 430 U.S. 65 1 , 664 ( 1 977) (Eighth Amendment imposes parallel limitations on

bails, fines and other punishments.).

217. Solemv. Helm, 463 U.S. 277,284(1983).

218. 5'ee Harmelin V. Michigan, 1 1 1 S.Ct. 2680,2691 (1991). Justice Scalia explains that because there

were no common-law crimes in the federal system at the time the Constitution was adopted, the prohibition was

meant as a check upon the legislature, not the courts. Id.

219. 5o/em, 463 U.S. at 290.

220. Trop V. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion).



1995] CHILD MOLESTER NOTIFICATION 739

decency that mark the progress of a maturing society."^^' In non-capital cases, the Court

has generally interpreted the Clause as forbidding either the unnecessary and wanton

infliction of pain^^^ or sentences that are grossly disproportionate to the crime.^^^

In recent years, state courts have had the opportunity to interpret the federal Clause^^"*

or similar guarantees in their own state constitutions^^^ during the course of challenges to
sex offender registries. A long line of cases has developed in California, where the high
court ruled more than a decade ago that sex offender registration constitutes punishment

and is therefore subject to Eighth Amendment scrutiny.^^^ A review of these cases lends
an analytical framework to potential Eighth Amendment and state constitutional

challenges of community notification programs.

In In re Reed, the California Supreme Court held that mandatory lifetime registration

of a sex offender convicted under the misdemeanor disorderly conduct statute violated the

California Constitution's prohibition against cruel and unusual punishment.^^^ Allen

Eugene Reed's offense consisted of exposing himself in a public restroom and

masturbating briefly in the presence of an undercover police officer.^^^ Reed was steadily

employed and had no prior arrest history.-^^^

Drawing on the United States Supreme Court's decision in Trop v. Dulles, ^^^ the

California high court adopted the view that, under the state constitution, punishment

should be evaluated in light of "evolving standards of decency."^^^ The court went on to

say that implicit in this flexible definition "is the notion that punishment may not be
grossly disproportionate to the offense.""^

The proportionality test employed by the California court involved three inquiries:

1) an examination of the nature of the offense and the offender, with particular regard to

the potential danger to society; 2) a comparison ofthe registration requirement with other

221. Mat 101.

222. Furman v. Georgia, 408 U.S. 238, 392-93 (1972) (Burger, C. J., dissenting). This restriction also

includes mental pain. See Trop, 356 U.S. at 101-02 (Although denationalization involves no physical

mistreatment, it subjects an individual to a fate of ever increasing fear and distress.).

223. Solem. 463 U.S. at 284. A requirement ofproportionality applies to both the length and the severity

of the punishment. Weems v. United States, 217 U.S. 349, 371 (1910).

224. State v. Lammie, 793 P.2d 134, 139 (Ariz. Ct. App. 1990); People v. Adams, 581 N.E.2d 637, 640

(111. 1991). In Lammie, the Arizona Court of Appeals determined that the registration provision was not cruel

and unusual punishment without answering the threshold question of whether it was punishment. 793 P.2d at

383. Two years later, in State v. Noble, 829 P.2d 1217, (Ariz. 1992), the state's high court finally answered the

question and held that registration was not punishment. Id. at 1221-24. In Adams, the Illinois Supreme Court

held that the sex offender registration was not punishment, but expressed the view in dicta that if it were

punishment, it would not be cruel or unusual. 581 N.E.2d at 641.

225. Lammie, 793 P.2d at 139; In re Reed, 663 P.2d 216, 218 (Cal. 1983); Adams, 581 N.E.2d at 640.

226. In re Reed, 663 P.2d 2 1 6.

227. Id. 2X111.

11%. Id at 111.

229. Id

230. 356 U.S. 86 (1958) (plurality opinion).

231. Mat 101.
232. In re Reed, 663 P.2d at 220.



740 INDIANA LAW REVIEW [Vol. 28:715

penalties imposed in the same jurisdiction for more serious crimes; and 3) a comparison
of the registration requirement with other penalties imposed for the same offense in other

jurisdictions."^ As applied to Reed, the registration requirement was found to be
disproportionate in all three areas and thus constitutionally prohibited.^^'*

While Reed has set the stage for subsequent challenges to California's sex offender

registry, the case has proven to be an anomaly. To date, only misdemeanants convicted
of indecent exposure have been successful in avoiding the registration requirement

through a cruel and unusual challenge.^^^

The test used by California courts is similar to the three-prong proportionality

analysis developed by the United States Supreme Court in Solent v. Helm?^^ In Solem,

the respondent was convicted in a South Dakota state court of issuing a "no account"

check for $100.^^^ Although the maximum punishment for the crime was five years
imprisonment and a $5000 fine, the respondent was sentenced to life imprisonment

without possibility of parole under the state's recidivist statute because of his six prior

convictions for non-violent felonies."^

In overturning the sentence, the Court held five to four^^' that "as a matter of

principle[,] ... a criminal sentence must be proportionate to the crime for which the

defendant has been convicted."^''^ However, the Court noted that "[o]utside the context

of capital punishment, successful challenges to the proportionality ofparticular sentences

[will be] exceedingly rare."^"*'

233. Id. at 220, The test was first articulated in In re Lynch, 503 P.2d. 921, 931 (Cal. 1972), and had

been previously used by the California Court of Appeals to uphold the registration requirement against a

challenge by an offender found guilty oflewd and lascivious conduct toward a child under the age of 14. People

V. Mills, 146 Cal. Rptr. 41 1 (Cal. Ct. App. 1978).

234. The court noted that Reed did not pose a threat to society, that California did not require registration

for other sex-related misdemeanors, and that only five states required sex offenders to register. In re Reedy 663

P.2dat221,222.

235. See, e.g., In re DeBeque, 260 Cal. Rptr. 441, 445 (Cal. Ct. App. 1989); People v. Monroe, 215 Cal.

Rptr. 51, 58 (Cal. Ct. App. 1985). The court noted in both cases that deference is paid to legislation designed

to protect children and that requiring the defendants to register did not shock the conscience nor offend

fundamental notions ofhuman dignity. In re DeBeque, 260 Cal. Rptr. at 448; Monroe, 215 Cal. Rptr at 58.

236. 463 U.S. 277 (1983). The Court held that the criteria to be used in proportionality analysis

included: 1 ) the gravity ofthe offense and the harshness ofthe penalty; 2) other sentences imposed in the same

jurisdiction; and 3) sentences imposed for the same crime in different jurisdictions. Id. at 292. While the Court

did not explicitly require the analysis to include the potential danger to society, this element has been factored

in with the gravity of the offense prong. See, e.g., Harmelin v. Michigan, 111 S. Ct. 2680, 2706 (1991)

(Kennedy, J., concurring) (life sentence without parole for possessing 672 ounces of cocaine not grossly

disproportionate because the crime threatens grave harm to society).

237. 463 U.S. at 281.

238. /f/. at 282.

239. Justice Powell delivered the opinion ofthe Court in which Justice Brennan, Justice Marshall, Justice

Blackmun and Justice Stevens joined. Chief Justice Burger filed a dissenting opinion, joined by Justice White,

Justice Rehnquist, and Justice O'Connor.

240. Solem, 463 U.S. at 290.

24 1

.

Id at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 272 ( 1 980)).



1 995] CHILD MOLESTER NOTIFICATION 74

1

In light of the Court's 1991 decision in Harmelin v. Michigan^^^ proportionality

challenges under the Eighth Amendment may never succeed. In Harmelin, a badly
fractured Court upheld a controversial life sentence without parole for Ronald Harmelin,

a 45-year-old Michigan man convicted of possessing 672 grams of cocaine.^"^^ Five
justices agreed that a court, when imposing punishment, need not consider mitigating

factors unless it is a death penalty case.^"*"* Justice Scalia, in an opinion joined by Chief

Justice Rehnquist, concluded that the Cruel and Unusual Clause was aimed at particular

modes ofpunishment, and does not include a guarantee ofproportionality in sentencing.^"*^

Justice Kennedy, joined by Justice O'Connor and Justice Souter, recognized a narrow

proportionality guarantee but interpreted Solem as "best understood as holding that

comparative analysis within and between jurisdictions is not always relevant to

proportionality review."^"^^ Instead, the threshold test is whether the sentence is grossly

disproportionate to the gravity ofthe offense.^"*^ According to Justice Kennedy, intra- and

inter-jurisdictional analysis is appropriate only to validate a rare initial inference of gross

disproportionality.^"*^

While Harmelin may have called the validity of a federal proportionality guarantee
into question,^"*^ a number of state constitutions contain express guarantees that

punishment must be proportionate to the crime.^^^ Other states have long held that their

constitution's "cruel and unusual clause" includes a proportionality guarantee.^^' The

majority of state courts that have assessed the validity ofSolem in the wake ofHarmelin,

however, have adopted Justice Kennedy's narrow standard in interpreting both state and

federal constitutional guarantees.^"

Under the tighter Harmelin standard, a child molester would face an uphill battle to

convince a court that community notification is cruel and unusual punishment. Requiring

a convicted child molester to sign up with a public registry, place a notice in the

newspaper, or mail postcards to his new neighbors is not nearly as onerous as the

constitutionally valid sentence of life imprisonment for the "victimless*' crime of cocaine

possession. Employing Solem 's intra- and inter-jurisdictional analysis, an offender might

242. HIS. Ct. 2680.

243. Id.

244. Chief Justice Rehnquist, Justice O'Connor, Justice Kennedy, Justice Scalia, and Justice Souter.

245. Harmelin. 1 1 1 S. Ct. at 2685-86 (Scalia, J., concurring).

246. Id. at 2707.

247. Id

248. Id

249. E.g., People v. Knott, 586 N.E.2d 479, 497 (111. App. Ct. 1991) (stating that Solem was expressly

overruled in Harmelin), vacated as moot, 621 N.E.2d 61 1 (111. 1993); State v. Tyler, 840 P.2d 413, 434 (Kan.

1992) (holding that the Eighth Amendment contains no proportionality guarantee).

250. IND. Const., art. I, § 16; Me. Const., art. I, § 9; Neb. Const., art. 1, § 15; N.H. Const., Part I, art.

18; Or. Const., art. I, § 16; W. Va. Const., art. Ill, § 5.

251. State v. Bartlett, 830 P.2d 823, 832 (Ariz. 1992), cert, denied, 113 S. Ct. 511 (1992); State v.

Brown, 825 P.2d 482, 491 (Idaho 1992); People v. Bullock, 485 N.W.2d 866, 873-74 (Mich. 1992), reh'g

denied, 486 N.W.2d 744 (Mich. 1992); State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992).

252. Bartlett, 830 P.2d at 826; Brown, 825 P.2d at 49 1 ; Harris, 844 S.W.2d at 603. Contra Bullock, 485

N.W.2d at 874 (holding that Solem is the appropriate standard in interpreting Michigan constitution).



742 INDIANA LAW REVIEW [Vol. 28:715

have prevailed by showing the "unusualness" of the community notification
requirement.^^^ By shifting Solem so that the threshold inquiry is the gravity of the
offense, however, Harmelin forces offenders to prove that child molesting is less serious

than drug possession before they can point out that their state is only one of a handful

which require them to announce their arrival in the community.

An offender could argue that proportionality analysis is inapplicable because
community notification is a mode of punishment, not a term of years.^^"* In reviewing
modes ofpunishment, the United States Supreme Court has generally looked to "evolving

standards of decency."^^^ These standards are not gauged by public opinion polls,^^^ but

are instead measured by what the Court has called the most reliable indicator of national

consensus—the pattern of enacted laws.^^^
By mid- 1994, the pattern ofenacted laws in the United States gave no clear indication

as to whether a convicted child molester's criminal history background should be released

to the general public. The majority of state statutes creating sex offender registries call

for the data to be private, with some imposing penalties on officials who release the
information.^^^ A growing number of state laws and a new federal statute, however, allow
for varying degrees ofcommunity notification.^^^ A convicted child molester could build
an argument around the pattern of laws that limited release of information; however, the

offender would bear the burden of showing a consensus^^^ and substantial deference

would be granted to the legislature's judgment.^^'

4. Are "Scarlet Letter" Conditions Invalid under Stated Goals ofProbation and

Parole?—^Not only may parole and probation conditions be overturned if they violate the
Constitution, they are also vulnerable to challenge if they serve no acceptable goal of

253. See In re Reed, 663 P.2d 216, 222 (Cal. 1983) (disproportionality indicated by fact that only a

handful of states required registration). But see State v. Lammie, 793 P.2d 134 (Ariz. Ct. App. 1990):

Assuming arguendo that no other state required lifetime registration for sex offenses, this alone

would not be sufficient to make the law unconstitutional. To hold otherwise would make it virtually

impossible for a state to be on the leading edge in passing laws increasing punishment for criminal

offenses. Such a holding would require simultaneous passage of similar laws in more than one state.

This would be improbable.

Id. at 140.

254. See supra note 224 and accompanying text; however, a requirement ofproportionality has been held

to apply to both the length and the severity of the punishment. Weems v. United States, 217 U.S. 349, 372-73

(1910).

255. Trop v. Dulles, 356 U.S. 86, 101 (1958).

256. Stanford v. Kentucky, 492 U.S. 361, 377 (1989).

257. Id. at 373. In Stanford, the Court held that although 27 ofthe 37 states allowing capital punishment

declined to impose it on persons under the age of 18, this did not establish the degree of national consensus

sufficient to label such executions cruel and unusual. Id. at 370-71.

258. See supra notes 38-40 and accompanying text.

259. See supra notes 38-40 and accompanying text.

260. Stanford, A92\].S.2i\.'ill>.

26 1

.

Id. at 369-70 (citing Gregg v. Georgia, 428 U.S. 1 53, 1 76 ( 1 976)).



1995] CHILD MOLESTER NOTIFICATION 743

parole or probation.^^^ Thus, defining the goals in a particular jurisdiction is critical in

determining whether scarlet letter conditions will stand.

In State v. Carey,^^^ a poorly educated mother of seven earning $528 per month was

ordered by the trial court to pay fifty dollars per week in restitution as a condition of her

probation. The Louisiana Supreme Court struck the condition, holding that in Louisiana,

the "purpose ofprobation is to promote the defendant's rehabilitation by allowing . . . her

to reintegrate into society without confinement.'*^^"* Probation "holds no promise and

serves no purpose if the conditions are so harsh that the probationer is destined for failure

at the outset."^^^

The purpose of Louisiana's "scarlet letter" conditions is not to reintegrate, but to

segregate the offender from at least that portion of society which is under the age of

eighteen. The practical effect, however, may be to segregate the offender fi*om society
as a whole. Since the state of Washington enacted its discretionary community

notification policy in 1990, some offenders have been driven from their jobs and

communities, harassed by vigilantes, and forced to flee to large cities or other states where

they are not known.^^^ Such a result is even more probable in Louisiana, where the

concept of community notification has been expanded to require all released child

molesters to mail postcards and place advertisements.

While many people would respond, "Who cares what happens to child molesters?,"
the fact is that ostracization and its ensuing problems might increase the chance of re-

offense.^^^ The risk is exacerbated among a certain type of child molester who victimizes
primarily during periods ofhigh stress.^^^ Because Louisiana's "scarlet letter" conditions

apply across-the-board, these factors cannot be taken into consideration. Such offenders

might be "destined for failure," which would violate Louisiana's goal of probation as

stated in Carey
}^^

Courts should recognize that no matter what the stated goal, the practical effect of

Louisiana's "scarlet letter" probation and parole conditions is punishment.^^^ While

.262 Cohen & Gobert, supra note 35, at 342.
263. 392 So. 2d 443 (La. 1981) (per curiam).

264. Id. at 444.

265. Id.

266. See supra notes 31-33 and accompanying text.

267. Fuller, supra note 14, at 603. Predisposing factors include stress, dysfunctional home situations,

familial violence, substance abuse, interpersonal deficits, failure of the incest taboo, anti-social mores, and

distorted beliefs. Fuller, supra note 14, at 603.

268. L.M. Lothstein, Can a Sexually Addicted Priest Return to Ministry after Treatment? Psychological

Issues and Possible Forensic Solutions, 34 Cath. Law. 89 (1991). Two types of pedophiles have been

recognized: fixated and regressed. Fixated pedophiles "have a primary sexual interest in children or teens and

rarely, if ever, engage in sex with age-appropriate peers." Regressed pedophiles are described as "individuals

with a primary sexual orientation toward age-appropriate adults of the opposite sex who under conditions of

extreme stress may psychologically regress and episodically engage in sex with children." Id. at 101 (emphasis

added).

269. 392 So. 2d at 444.

270. Cohen & Gobert, supra note 35, at 1 84-85. Cohen and Gobert argue that instead ofdeeming harsh
conditions to be "rehabilitative," courts should recognize that punishment, like rehabilitation, can be a valid



744 INDIANA LAW REVIEW [Vol. 28:715

Louisiana's "scarlet letter" conditions arguably violate state probation policy, such

conditions could be upheld in jurisdictions where punishment is an accepted goal.

B. Due Process

When convicted child rapist Joseph Gallardo was discharged from prison in July
1993, local law enforcement officials in Washington state did more than simply release

his name and conviction data to the public. They also circulated a flyer describing him

as "an extremely dangerous sex offender with a high probability for re-offense."^^'

The issue of whether such allegations of future criminal behavior implicate liberty

or property interests protected under the Fourteenth Amendment Due Process Clause was
addressed by the United States Supreme Court in Paul v. Davis?^^ Paul involved a flyer

distributed to 800 merchants in Louisville, Kentucky featuring the names and mug shots
ofpersons arrested for shoplifting.^^^ Entitled "Active Shoplifters,"^^"* the flyer had been

prepared and distributed by area police to alert local merchants to possible shoplifters who
might be operating during the Christmas season.^''^

One ofthe featured "Active Shoplifters," Edward Davis, had previously been arrested

for shoplifting; however, the charges were dismissed shortly after the flyer was

distributed. Davis then brought an action under 42 U.S.C. section 1983,^^^ charging that

the flyer deprived him of his constitutional rights.^^^

The Court disagreed, holding that Davis's interest in reputation alone was not the

type of liberty or property interest sufficient to invoke the procedural guarantees contained

in the Fourteenth Amendment Due Process Clause.^^^ In previous "stigma" cases where

the Court granted relief, a right or status recognized by state law was distinctly altered or

extinguished.^^^ The applicable state law did not extend any legal guarantee to present

enjoyment of reputation.^^^ According to the Court, if Davis's view prevailed, arrested

persons would have a cognizable claim under section 1983 if law enforcement officials

merely proclaimed a belief that the alleged offenders were guilty.
^^'

rationale for imposing parole and probation conditions.

27 1

.

See supra note 7 and accompanying text.

272. Paul V. Davis, 424 U.S. 693 (1976).

273. Mat 695.
274. Id.

275. Id. at 694-95.

276. 42 U.S.C. § 1983 (1988). The statute reads in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured ....

Id

277. Paul. 424 U.S. at 696.

278. Mat 712.

279. Id. at 71 1. See also Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971) (holding that the

state-granted right to purchase liquor cannot be taken away without due process).

280. Pom/, 424 U.S. at 711.

281. M. at 698.



1 995] CHILD MOLESTER NOTIFICATION 745

Under the Court's holding in Paul, convicted child molesters who are stigmatized as
the result of information distributed by law enforcement officials would be unable to bring

a section 1983 action. Reliefwould be unavailable even if the charges were dismissed or

if the person were acquitted. The Court did note that imputing criminal behavior to an

individual is considered defamatory per se in the courts of virtually every state.^^^

Because Washington law grants immunity to law enforcement officials who release
"relevant and necessary*' information in good faith and without gross negligence,

however, Gallardo would not have a cognizable defamation claim against the police who
distributed the flyers.^"

C. Privacy Implications

The law of privacy provides another potential basis for challenging community

notification provisions.^^"* The "right to be let alone" is grounded both in the common
law^^^ and in state and federal constitutional jurisprudence.^^^ Because decisions

regarding a federal Constitutional right to privacy have hinged on the Fourth

Amendment's protection against warrantless searches and seizures and the Fourteenth

Amendment's implicit guarantee of fundamental decision privacy,^^^ and state

282. Id. at 697.

283. Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1994). Private groups who distribute flyers

imputing future criminal behavior could still be liable under the common law tort of defamation. To address

this potential liability, the Washington Association of Sheriffs and Police Chiefs has proposed that the

Community Protection Act be amended to extend immunity to news media, schools, and church and youth

groups. Memorandum from the WASPC Committee on Sex Offenders (on file with the author) [hereinafter
"Memorandum"].

284. See State v. Payne, 633 So. 2d 701 (La. Ct. App. 1993), cert, denied, 637 So. 2d 497 (La. 1994).

A convicted sex offender challenged Louisiana's community notification statute on both ex post facto and
privacy bases. Because the court held that the statute, as applied to Payne, was an unconstitutional ex post facto

law, it did not reach the issue of whether the law was a facially invalid invasion of privacy. Id. at 702-03.

285. A common-law right to privacy was first advocated by Samuel Warren and Louis Brandeis, who
argued in an influential 1890 article that tort law should provide some protection against an increasingly

intrusive press. Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

286. Ken Gormley, One Hundred Years ofPrivacy, 1 992 Wis. L. Rev. 1335(1 992). Gormley posits that

over the past century, legal privacy has developed into several interrelated species: tort privacy; Fourth

Amendment protection from warrantless search and seizure; fundamental-decision privacy grounded in the Due

Process Clause of the Fourteenth Amendment; First Amendment privacy addressing the conflict between one

individual's free speech and another's freedom of thought and solitude; and state constitutional privacy.

287. See Paul v. Davis, 424 U.S. 693, 712-713 (1976). The Court noted that publicizing the official

record ofDavis' arrest was not akin to other areas where "zones ofprivacy" had been recognized. Previous right

of privacy cases involved either evidence seized in an unreasonable search or substantive state regulation of

matters relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id.

For further discussion ofPaul, see supra text accompanying notes 272-283.



746 INDIANA LAW REVIEW [Vol. 28:715

constitutional law has generally paralleled this trend,^^^ this Note focuses on privacy rights

under the common law.
The tort of publication of private facts protects a common law right of privacy that

was first advocated by Samuel Warren and Louis Brandeis in an influential 1890 article.^^^

Concerned about the advent of "instantaneous photographs," the duo warned that

"numerous mechanical devices threaten . . . that 'what is whispered in the closet shall be

proclaimed from the house-tops. '"^^^ The rapid growth of computerized sex offender

registries has lent an air of prescience to Warren and Brandeis' words.

The majority of American jurisdictions have recognized the private facts tort.^^'

Under the formulation adopted in the Restatement (Second) ofTorts, one who publicizes
private facts about another is liable for invasion of privacy if the publication would be

highly offensive to a reasonable person and is not of legitimate public concem.^^^ Claims

under this tort are usually directed at the news media, because the communication must

reach the general public before liability may be imposed.^^^ Newspaper and magazine
articles, radio and television broadcasts, speeches before large audiences, and widely

distributed handbills are the types ofmedia that may invade a plaintiffs privacy under this
tort.^^^

288. While state constitutions may offer greater protection to an individual's right of privacy than the

federal Constitution, state constitutional jurisprudence has tended to focus on fiindamental decision privacy and

search and seizure privacy. See generally Ken Gormley & Rhonda G. Hartman, Privacy and the States, 65
Temp. L. Rev. 1279 (1992). But see People v. Hackler, 16 Cal. Rptr.2d 681, 686-87 (Cal. Ct. App. 1993)

(Requiring a probationer who stole two 12-packs of beer to wear in public a T-shirt with the words, "I am on

felony probation for theft" violated the offender's state constitutional right to privacy because it had only an

incidental impact on his future criminality.). This would probably not apply to child molesters; in an earlier

case, the same court held that anyone who sexually molests a child has waived any right to privacy. People v.

Mills, 146 Cal. Rptr. 411,417 (Cal. Ct. App. 1978). The implications ofthe growing body of state constitutional

jurisprudence on community notification is beyond the scope of this Note; for a thorough overview of state

privacy cases, see Silverstein, supra note 107.

289. Warren & Brandeis, supra note 285. The right to privacy is protected by four separate torts:
intrusion upon seclusion; appropriation of name or likeness; false light publicity; and publication of private

facts. Restatement (Second) of Torts § 652A- 1 (1977) [hereinafter Restatement].

290. Warren & Brandeis, supra note 285, at 195.
291

.

Thirty-six states have adopted the publication ofprivate facts tort. Diane L. Zimmerman, Requiem

for a Heavyweight: A Farewell to Warren and Brandeis 's Privacy Tort, 68 CORNELL L. REV. 291, 365-66

(1983). Only four states—Nebraska, New York, Utah and Virginia—have expressly rejected the tort. Id. at
366-67.

292. RESTATEMENT, supra note 289, § 652D.

293. Restatement, supra note 289, § 652D, cmt. a. Unlike the tort of defamation, where liability may

be predicated on a private communication made by the defendant to a third party, the tort of publication of

private facts requires a communication that reaches the public at large. To communicate a fact concerning the

plaintiffs private life to a single person or even a small group of persons is not an invasion of the right of

privacy. RESTATEMENT, supra note 289, § 652D, cmt. a.

294. Restatement, supra note 289, § 652D, cmt. a.



1 995] CHILD MOLESTER NOTIFICATION 747

By design, computerized sex offender registries provide instant access to a wealth of
information that was previously inaccessible or difficult to obtain.^^^ In addition to

containing conviction data, which is a matter of public record,^^^ most registries also

include other identifying information such as the offender's current address and place of

employment.^^^ Four statutory approaches have been used to govern public access to this

information. Under one approach, officials who release "relevant and necessary"
information contained in the registry are granted immunity from civil liability.^^^ Some
states open their entire registries to the public;^^^ in others, the use of the information is

restricted to law enforcement personnel,^^^ with some statutes imposing criminal liability

for unauthorized release.^^' In a handful of states, release is governed by the applicable

Freedom of Information Act (FOIA) or court records statutes.
^^^

1. Government defendants.—The United States Supreme Court has recognized an
individual's privacy interest in his computerized criminal history. In United States

Department ofJustice v. Reporters Committeefor Freedom ofthe Press,^^^ members of

the news media sought disclosure under FOIA ofan organized crime figure's "rap sheet."
Compiled by the Federal Bureau of Investigation, rap sheets contain descriptive

information such as the suspect's date of birth, physical characteristics, and history of

arrests, charges, convictions and incarcerations. Rap sheets are normally maintained until

the subject reaches the age of eighty.^^

The Court held that rap sheets were categorically exempt from disclosure under

section 552(b)(7)(c) of FOIA,^^^ which excludes records compiled for law enforcement

purposes "but only to the extent that the production of such [materials] . . . could

reasonably be expected to constitute an unwarranted invasion of personal privacy."^^^

Although most of the information contained in the rap sheet was already a matter ofpublic

record, the issue was "whether the compilation of otherwise hard-to-obtain information

295. As the Court noted in United States Dep't ofJustice v. Reporters Comni., "There is a vast difference

between the public records that might be found after a diligent search of courthouse files, county archives, and

local police stations throughout the country and a computerized summary located in a single clearinghouse of

information." 489 U.S. 749, 764 (1989).

296. Every court keeps a record of events occurring in that court, including arraignments, adjudications

and sentences. As a matter of constitutional right, statute, or court rule, these records are open to public

inspection in every state. BUREAU OF JUSTICE STATISTICS, U.S. Dept. OF JUSTICE, PUBLIC ACCESS TO CRIMINAL

History Record Information 3 (1988).

297. See sources cited in supra note 20.

298. La. Rev. Stat. Ann. § 1 5 :546 (West Supp. 1 994); Wash. Rev. Code Ann. § 4.24.550 (West Supp.

1994).

299. Ga.CodeAnn.§42-9-44.1(1994).

300. See sources cited in supra note 38.

30 1

.

See TEX. REV. Civ. STAT. ANN. art. 6252- 1 3c. 1 (West Supp. 1 994).

302. See supra note 1 1 and accompanying text.

303. United States Dep't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).

304. Id. at 752.

305. Mat 777.
306. Id. at 755-56 (quoting 5 U.S.C. § 552(b)(7)(C)).



748 INDIANA LAW REVIEW [Vol. 28:715

alters the privacy interest implicated by disclosure of that information."^^^ The Court

stressed that absent the computerized index, tracking down an offender's criminal history
would require a "diligent search of courthouse files, county archives, and local police

stations throughout the country.
"^°*

In holding that disclosure was exempt under FOIA, the Court noted that the power

of a computerized compilation to affect personal privacy outstrips the combined power

of the bits of information it contains.^^^ The central purpose of FOIA is to "ensure that
the Government 's activities be opened to the sharp eye of public scrutiny," not that

information about private citizens that happens to be in the government's warehouse be

disclosed.^'° "[A]s a categorical matter ... a third party's request for law enforcement

records or information about a private citizen can reasonably be expected to invade that

citizen's privacy . . . ."^'^ Such an invasion is unwarranted when an individual seeks no
official information about a government agency, but merely hopes to obtain records that

the government happens to be storing.^
'^

Under Reporters Committee, release of computerized criminal history information

to the general public could expose a government entity to liability in those jurisdictions

that prohibit release of such information and extend a damage remedy for unauthorized

disclosure. While Reporters Committee did recognize that offenders have an inherent

privacy interest in their computerized criminal history, it is important to note that the

Court was discussing personal privacy only as defined by the law enforcement exception

of FOIA.^'^ Thus, the Court's holding would not affect those jurisdictions where the

statutes expressly provide for public disclosure and the provisions of FOIA are
inapplicable.^'"*

2. Media defendants.—Merely reporting a child molester's name and conviction data
will not subject the media to liability under the private facts tort if this information is

already a matter ofpublic record.^'' Under a line ofcases developed by the United States

Supreme Court, it would also appear that liability may not be imposed on the news media

307. Id. at 764.

308. Id.

309. Id. at 765.

310. /(t/. at 774 (emphasis in original).

311. /</. at780.

312. Id

313. Id.dX 161. All states have adopted a version ofFOIA. See Casenote, Administrative Law: Freedom

ofInformation Act, 62 U. Det. L. Rev. 363, 369 (1985).

314. La. Rev. Stat. Ann. § 15:546 (West Supp. 1994); Wash. Rev. Code Ann. §4.24.550 (West Supp.

1994).

315. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 49 1 ( 1 975) (Publishing a rape victim's name that

was obtained from indictments open to public inspection did not state a cause ofaction for invasion ofprivacy.).

The Court noted that publication ofthe "contents ofpublic records [is] simply not within the reach ofthese kinds

of privacy actions." Id. at 494. But see Briscoe v. Reader's Digest Ass'n, 483 P.2d 34, 44 (Cal. 1971)

(Publishing information about rehabilitated criminal 1 1 years after plaintiff's involvement in criminal activity

stated a cause of action for invasion of privacy.).



1995] CHILD MOLESTER NOTIFICATION 749

for publishing other information lawfully obtained from a child molester registry, even

if the registry is closed to public inspection.^
'^

In The Florida Star v. BJ.F.^^^ a reporter-trainee obtained a rape victim's name from

a report posted in the pressroom at the sheriffs office. The victim won a jury verdict
against the newspaper when her name was published in violation of a Florida statute. The

Court reversed, holding that "where a newspaper publishes truthful information which it

has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly
tailored to a state interest ofthe highest order.

^^^^^

B.J.F.'s attorneys argued that protection of a rape victim's anonymity met the highest

interest test. Three related interests were involved: the privacy of the victims of sex

offenses; the physical safety of such victims; and the goal ofencouraging victims to report

sex crimes.
^'^

While the case did not reach the adequacy of the victim's interest,^^^ the

Court's treatment suggests that protecting the anonymity of rape victims was not a state

interest of the highest order.^^'

Couts could use the Florida Star standard to find that protecting the anonymity of

child molesters meets the highest interest test, although revealing their names and crimes

may implicate their victims, as in the case of incest. News media that lawfully obtain the
information may be allowed to publish it with impunity. Even in the states that expressly
prohibit public use of the information, the press may not be punished if the information
was obtained lawfully, albeit improperly. The United States Supreme Court has

recognized as lawful such routine reporting techniques as interviewing sources and

monitoring police band radios.^^^

3. Private defendants.—In Florida Star, the Court noted that in truthful publication
cases, individual privacy interests had never prevailed over the media's First Amendment

rights.^^^ Whether individual privacy interests would prevail in a case involving handbills

distributed by community groups depends on the content of the flyers, the timeliness of

the crime, and the nature of the remedy, if any, afforded by state law.

Flyers that merely list the offender's criminal history would probably not be

considered an invasion ofprivacy; as the United States Supreme Court has noted, privacy

316. The Florida Star v. BJ.F., 491 U.S. 524 (1989); Reporters Comm., 489 U.S. 749; Oklahoma

Publishing Co. v. District Court, 430 U.S. 308 (1977); Cox Broadcasting Co., 420 U.S. 469.

317. 491 U.S. 524.

318. M at 541 (emphasis added).
319. /^. at 537.

320. The Court held that whatever the interest in protecting the anonymity of rape victims, imposing

liability on the media did not advance that interest. The Florida statute prohibiting the publication of rape

victims' names in an "instrument of mass communication" was facially underinclusive and would not apply to

the "backyard gossip who tells 50 people that don't have to know." Id. at 540.

32 1

.

Commentators have suggested that the Court's holding in Florida Star has reduced the utility of

the tort ofpublication ofprivate facts. See Jacqueline R. Rolfs, Note, The Florida Star v. B.J.F.: The Beginning

ofthe Endfor the Tort ofPublic Disclosure, 1990 Wis. L. REV. 1 107. "If a rape victim's name does not compel

protection, it is difficult to imagine what type of information will." Id. at 1117,

322. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103-04 (1979).

323. F/onWa^tor. 491 U.S. at 530.



750 INDIANA LAW REVIEW [Vol. 28:715

interests fade once the information has appeared on the public record.^^"* Courts in

California have carved out an exception and allowed a privacy action to proceed when the
crime occurred in the distant past and the offender has been rehabilitated.^^^ However,

since probationers and parolees have a reduced expectation of privacy,-*^^ this exception

would not apply to them. In states where the registration requirements exceed the term

of probation and parole, it is doubtful such an argument would prove persuasive in light

of the high recidivism rate among child molesters.^^^

Flyers that include additional information such as an offender's address and place of

employment would invoke liability only if the information were highly offensive to a

reasonable person and not a matter of legitimate public concem.^^^ As interpreted by the

Court in Florida Star, the public concern test is a threshold inquiry that applies only to the

nature of the underlying event.^^^ If the underlying event were found to be a matter of

public significance, the fact that the information may be offensive is irrelevant."^
The commission and investigation of a violent crime which has been reported to

authorities is a matter of "paramount public import.""' The Florida Star Court found that

inclusion of the rape victim's name was incidental; the "article generally, as opposed to

the specific identity contained within it," involved a matter of public significance.^^^

Since the purpose of community notification is to publicize an offender's "specific

identity," offenders might be able to argue that publication of their name and address is

not protected by the Court's holding in Florida Star. However, such an argument would

not be persuasive in Washington or Louisiana, where the legislature has acknowledged

in adopting community notification that "protection of the public from sex offenders is a

paramount governmental interest."'^^ Further, even if a child molester could show that

publication of his name and address was not a matter of public significance, the offender

would only be allowed recovery if the information were highly offensive to a reasonable

person.^^"* Ajury would be unlikely to find such information offensive in light of the low
public regard for child molesters and the high public concern for children's safety.

IV. A Workable Legislative Approach

In recent years, an Oregon judge who was fiaistrated with the criminal justice system

said, "One time, I thought of dyeing all [child molesters] green and telling children to stay

324. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95 (1975).

325. Conklin v. SIoss, 150 Cal. Rptr. 121, 124 (Cal. Ct. App. 1978); Briscoe v. Reader's Digest Ass'n,

483P.2d34,44(Cal. 1971).

326. See State v. Malone, 403 So. 2d 1234, 1239 (La. 1981).

327. Reuben A. Lang et al., Treatment ofIncest and Pedophilic Offenders: A Pilot Study, 6 Behav. SCI.

&L., 239, 242 (1988).

328. Restatement, supra note 289, § 652D.

329. Florida Star. 491 U.S. at 536-37.

330. Id

331. Id

332. Id

333. See supra note 29 and accompanying text.

334. Restatement, supra note 289, § 652D.



1 995] CHILD MOLESTER NOTIFICATION 75

1

away from green people.""^ Although the majority of statutes close sex offender

registries to the pubhc or Hmit disclosure to dangerous offenders,"^ there is no doubt that

many Americans share the judge's view that all child molesters should be singled out.
The concept ofcommunity notification is here to stay. Legislators have two choices:

either craft a state-wide approach to community notification, or allow the law to be

developed piecemeal by judges who are frustrated with releasing child molesters into the
community."^ The picture is further complicated by the grim fact that states that delay

adopting community notification may become safe havens for pedophiles, while states
that are too aggressive could exceed the limits of the new federal law and lose federal
funding.^^^ In addition, the protective value of any community notification program will

be illusory at best unless the program can be applied retroactively to offenders who are
already in the system."^

This Note proposes that state legislatures develop an approach to community

notification that is flexible enough to safeguard the community from potentially dangerous

offenders while allowing persons with a low risk of reoffense to reintegrate into the

community. Such flexibility is desirable in light of the recently approved Violent Crime

Control and Law Enforcement Act of 1994,^"*^ which requires states to develop a child
molester registry that meets certain federal mandates. States that fail to comply with the

law within three years of its passage will lose ten percent of their fiinding under section

506 ofthe Omnibus Crime Control and Safe Streets Act of 1968.^"*' One provision limits

community notification to relevant information that is necessary to protect the public from

a specific offender.
^"^^

In some states, community notification consists merely of public access to the

sex-offender registry. Members of the general public may go to the sheriffs office and
peruse the registry, which includes name, address, and conviction data on all registrants.^"*^

This form of notification, if continued after the federal law goes into effect, could cost

these states a hefty share of their federal crimefighting dollars^"*"*—a high price tag at a
time when the public is clamoring for law and order. In addition, such broad access could

335. Brilliant, supra note 173, at 1366 (alteration in original).

336. See supra notes 38-39 and accompanying text.

337. See supra note 86 and accompanying text.

338. See supra notes 96-97 and accompanying text.

339. See supra notes 201-04 and accompanying text.

340. H.R. 3355, 103rd Cong., 2nd Sess. (1994).

341. Id. (referring to 42 U.S.C. 3756 ( 1 988)).

342. 42 U.S.C.A. § 14071 (West 1994).

343. See, e.g.. Ga. Code Ann. § 42-9-44. 1 (1994).

344. States which do not comply would lose 1 0% of their dollars allocated under 42 U.S.C. § 3756. See

42 U.S.C.A. § 14071 (West 1994). Funding under this section is used to assist states in carrying out programs

which improve the criminal justice system, with special emphasis on a nationwide drug control strategy.

Eligible programs include multijurisdictional task forces, neighborhood anti-crime programs, anti-terrorism

efforts, prison industry, substance abuse rehabilitation, community corrections, and domestic violence programs.

42 U.S.C. §375 1 (1988). Indiana receives between $7 million and $9 million a year under these so-called Byrne

grants. Interview with Catherine O'Connor, Director, Indiana Criminal Justice Institute (Aug. 29, 1994).



752 INDIANA LAW REVIEW [Vol. 28:715

also be deemed punitive, which would limit the registration requirement to those offenders

who committed their crimes after the law was enacted.
Other states, however, also have notification provisions which operate independently

of public access to registry. In Washington, the Department of Corrections directly

releases information on ex-offenders it deems to be dangerous, usually several weeks

before an offender is required by law to register. Local law enforcement officials then

have the discretion to release this information to community groups, the news media, or

the general public.^'*^ Government officials are immune from liability for releasing sex
offender information; a proposed amendment would extend this immunity to community

groups and the news media, as well.^"*^

In Louisiana, all child molesters released on parole or probation are required by law

to notify the public through postcards and classified advertisements.^"*^ The inflexibility

of the Louisiana approach lends itself to pragmatic as well as legal problems. The risk of

reoffense varies depending on the offender's particular sexual anomaly and whether that

offender has received treatment.^"*^ Incestuous males, for example, seldom repeat their

behavior once they have been caught, whereas homosexual pedophiles generally have a

recidivism rate of ten percent or higher.^"*^ Certain types of child molesters have an

increased likelihood ofrecidivism under periods of extreme stress and isolation,^^^ which

are likely to result soon after the offender's new neighbors receive the postcards. The

statute fails to recognize these distinctions and applies the notification requirements across

the board, regardless of the risk of reoffense.-'^' Deeming the requirements punitive,

^

courts have refused to impose the "scarlet letter" conditions on defendants who committed!

their crimes prior to the law's effective date.^^^

Washington's approach is much more flexible and, with some modification, presents

a good working model for other states to follow as they implement the provisions of the

Violent Crime Control and Law Enforcement Act of 1994. The Special Bulletins issued
by the state Department of Corrections, combined with the guidelines adopted by local

law enforcement agencies, have the potential to recognize each community's unique needs

and each child molester's unique risk of reoffense. Because the Louisiana program looks

only to the offender's past conduct,^" it is more likely to be classified as punishment than

the Washington plan, which considers current factors such as the community where the

offender plans to reside and whether the offender received treatment while incarcerated.

345. Donnelly & Lieb, supra note 31, at 5. The type of information generally released in Washington
includes the offender's approximate or exact address, physical description, photograph, criminal history, method

of approaching victims, place of employment, and vehicle model. DONNELLY & LlEB, supra note 31, at 5.
346. See Memorandum, supra note 283.

347. La. Code Crim. Proc. Ann. art. 895 (West Supp. 1994); La. Rev. Stat. Ann. § 15:574.4 (West

Supp. 1994).

348. Lang et al., supra note 327, at 253.

349. Lang et al., supra note 327, at 253.

350. Lothstein, supra note 268.

351. See supra note 80 and accompanying text.

352. State v. Babin, 637 So. 2d 814, 824-25 (La. Ct. App. 1994), cert, denied, 644 So. 2d 649 (La. 1994).

353. See De Veau v. Braisted, 363 U.S. 144, 160 (1960), reh 'g denied. 364 U.S. 856 (1960).



1 995] CHILD MOLESTER NOTIFICATION 753

This built-in flexibility is vital if the program is to be deemed a "regulation of a present

situation"^^"* and thus exempt from ex post facto challenges.

The breadth of the flexibility, however, has raised concerns among some law
enforcement officials in Washington who maintain that the WASPC guidelines which
classify offenders according to the risk ofreoffense are unclear.^^^ Another complaint is

that the current law vests too much responsibility with local law enforcement agencies to
make decisions regarding an offender's risk of reoffense and mental health.^^^ However,

this broad grant ofdiscretion was designed to ensure that decisions regarding community

notification are made by those who live in the community. Several local law enforcement
agencies have effectively utilized this discretion to adopt detailed classification schemes

that consider such individual factors as substance abuse, therapy, victim preference, and

mental health.^^^

If community notification is to operate effectively, there must be a mechanism to

enable law enforcement officials to track ex-offenders as they move from town to town.

Under the new federal law, verification forms would be mailed every ninety days to
offenders deemed "sexually violent predators" and annually to the remainder of the

registrants.^^^ A more aggressive approach, which was recently enacted in Indiana,^^^
allows released child molesters to be placed on extended periods of probation or parole.

Judges and the parole board are granted express statutory authority to require, as a

condition of release, that offenders participate in a treatment program and avoid all

contacts with children that have not been previously approved by the court until the

treatment is completed.^^® In addition, offenders are required to register for ten years

following their release from prison or placement on parole or probation.^^' Unlike the

federal approach, which will limit verification to an annual postcard in the vast majority

354. Id. However, such flexibility did not save New Jersey's "Megan's Law" from being deemed

punitive. See Artway v. Attorney Gen. of New Jersey, No. 94-6287, 1995 U.S. Dist. LEXIS 2403, at *92

(D.N.J. Feb. 28, 1995).

355. Donnelly & Lieb, supra note 3 1 , at 8.
356. Donnelly & Lieb, supra note 3 1 , at 8. For other potential problems with this type of notification

scheme, see Kelly Richmond, State Defends Megan 's Law in Federal Appeals Court, BERGEN (N.J.) Record,

Feb. 2, 1995, at A7. In January, 1995, a federal district court judge in Newark issued a preliminary injunction

barring community notification in the case of a released rapist. In his ruling, the judge expressed concern that

the offender's due process rights could be violated because the law lacks a provision for persons subject to

community notification to appeal the risk level assigned to them. Id. Under New Jersey's newly enacted

community notification statute, prosecutors are responsible for determining an offender's risk level pursuant

to guidelines developed by the state attorney general. The statute prescribes three risk levels similar to those

followed voluntarily in Washington state and mandates the form ofnotification which is to be followed for each

level." 1994 N.J. Sess. Law Serv. 128 (West).

357. Donnelly & Lieb, supra note 3 1 , at 1 3- 1 6.
358. 42 U.S.C.A.§ 14071 (West 1994).

359. 1994 Ind. Acts 11.

360. Id. Persons convicted of sex crimes against children after the measure's effective date could be

placed on probation or parole for up to 10 years.

361

.

S. 363, 109th Leg., 1st Reg. Sess. (Effective July 1, 1995).



754 INDIANA LAW REVIEW [Vol. 28:715

of cases, the Indiana approach should boost compliance and enhance tracking by clearing

the way for registrants to be under continuous supervision.
Although longer periods of supervision may be more costly to implement, the

advantages of such an approach are numerous. In Washington state, one out of five

released adult sex offenders fails to register.^^^ By linking notification with offenders who
are still in the criminal justice system, however, the problems with voluntary compliance

will be mitigated. Should the offender relocate, law enforcement officials would be

informed and would then be able to decide, based on the needs of the community and the

risk of reoffense, whether the public should be notified.

In addition, persons on probation and parole have a reduced expectation ofprivacy,^^^

and thus do not have the same freedom from governmental intrusion as an ordinary

citizen.^^ Law enforcement and government officials, immunized by statute, would be
able to release relevant and necessary information on offenders with a high risk of

reoffense in order to protect the public.^^^ At the same time, parole and probation

officials, employing the discretion granted under the Indiana law,^^^ would be able to

tailor conditions of supervision which minimize the risk of reoffense and thus foster

rehabilitation.

Almost every person who is behind bars for molesting a child will someday be
released from prison. The current patchwork quilt ofregistration-notification laws has put

certain states at risk of becoming a dumping ground for released offenders. A child in
Ohio is as vulnerable as a child in Washington. State laws which merely ship child

molesters to another part of the country do not really further the goal of public safety.

With the passage of the Violent Crime Control and Law Enforcement Act of 1994,
states have a unique opportunity to develop a targeted notification scheme which will

protect children throughout the country by ensuring that dangerous offenders are not

allowed to slip into anonymity. Because most people do not want a child molester for a

neighbor, this protection will always carry the threat ofvigilantism. Such threats can be

minimized, however, by releasing the relevant information in an accurate, responsible and

responsive manner.

362. See supra note 49 and accompanying text.

363. See supra text accompanying note 29.

364. See State v. Malone, 403 So. 2d 1 234, 1 239 (La. 1 98 1 ).

365. Wash. Rev. Code Ann. § 4.24.550 (West Supp. 1994).

366. 1994Ind. Acts 11.