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DOE # 1 v. WILLIAMS

September 19, 2001

JOHN DOE # 1, ET AL., PLAINTIFFS
V.
ANTHONY WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Plaintiffs, John Does # 1-5, are five individuals required to register as sex offenders pursuant to the District of Columbia's 1999 Sex Offender and Registration Act ("SORA"), D.C.Code § 22-4001, et seq. (2001).*fn1 They attack the constitutionality of the SORA, arguing, inter alia, that it violates the Due Process Clause, the Ex Post Facto Clause and the Double Jeopardy Clause of the United States Constitution. Defendants Anthony Williams, Mayor of the District of Columbia, Charles H. Ramsey, Chief of the Metropolitan Police Department ("MPD"), and Jasper Ormond, Director of the Court Services and Supervision Agency ("CSOSA"), respond that the SORA is constitutional because it is not punitive within the meaning of the Ex Post Facto or Double Jeopardy Clause, and since no protected liberty interests are infringed by the registration or notification provisions of the SORA, due process procedures are not required. Both parties have moved for judgment on the pleadings or for summary judgment.*fn2 As explained below, the Court concludes that the public notification provisions of the SORA implicate liberty interests protected by the Due Process Clause and that the statute is unconstitutional because it fails to provide sufficient process to sex offenders prior to public notification.

STATUTORY FRAMEWORK

In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. § 14071 ("the Wetterling Act"). The Wetterling Act required each state and the District of Columbia to enact sex offender registration and notification statutes meeting minimum standards to maintain eligibility for federal funding. Id. After the Wetterling Act was passed, the District of Columbia Council enacted a Sex Offender Registration Act in 1996 ("1996 SORA"), D.C. Law 11-274 (effective June 3, 1997), previously found at D.C.Code § 24-1101 et seq. The 1996 SORA was never implemented and was ultimately repealed by the 1999 SORA, D.C.Code § 22-4001 et seq. (2001), which is the statute at issue here.

Because the Wetterling Act set only minimum standards, states have differed in their statutory approaches to registration and notification. The statutes basically fall into two categories: "offense-based" systems and "offender-based" systems. An offense-based system, like the SORA, categorizes registered sex offenders by the type of offense committed, and the nature of the offense serves as the only basis for determining risk of recidivism. The sex offender's offense and the corresponding risk group determine the nature and extent of public notification. By contrast, an offender-based system assesses the recidivism risk of the offender by looking at a number of factors in addition to the nature of the offense, and results in an individualized risk assessment made by a court or by a law enforcement or other executive agency.*fn3 In an offender-based system, the nature and extent of community notification are graduated according to an individualized risk assessment analysis.

Under the SORA, any person who is convicted or found not guilty by reason of insanity of a registration offense is required to register with the Court Services and Offender Supervision Agency ("CSOSA"). D.C.Code § 22-4001(3)(A)(i).*fn4 "Registration offense" is defined broadly to include any offense involving sexual contact or a sexual act without consent or with a minor, or the attempt or conspiracy to commit such act.*fn5 D.C.Code § 22-4001(8)(D)-(E). Except for persons subject to lifetime registration, sex offenders are required to register with CSOSA upon their conviction (or acquittal by reason of insanity) and must continue to register until the expiration of any time being served on probation, parole, supervised release, conditional release, convalescent leave, or 10 years after the offender is placed on probation or other form of supervised release or is unconditionally released from detention, whichever is the last to occur.*fn6 D.C.Code § 22-4002(a). There is no provision for early termination of the registration period. D.C.Code § 22-4002(d).

A person who has committed a lifetime registration offense is required to register with CSOSA for life. The only exception to this requirement is that CSOSA may suspend the registration requirement while the offender is detained, incarcerated, confined, civilly committed or hospitalized in a secure facility. D.C.Code § 22-4002(c)-(d). A lifetime registration offense is defined as first or second degree sexual abuse; forcible rape or sodomy; first degree child sexual abuse, carnal knowledge, statutory rape or sodomy committed against a person under 12 years; murder or manslaughter committed before, during or after engaging in or attempting to engage in a sexual act, sexual contact, or rape; and an attempt or conspiracy to commit any of these offenses. D.C.Code § 22-4001(6)(A)-(D).*fn7 Persons who have committed two or more felony registration offenses or registration offenses against a minor, or persons determined to be sexual psychopaths under D.C.Code §§ 22-3803 through 22-3811, are also subject to lifetime registration. D.C.Code § 22-4002(b)(2)-(4). The registration requirements apply retroactively to offenders who committed an offense at any time and were in custody or under supervision on July 11, 2000, and to offenders who were required to register under the 1996 SORA the day before the 1999 SORA became effective, on July 11, 2000. D.C.Code § 22-4001(9)(B)-(C).

Registered sex offenders are classified as Class A, Class B or Class C offenders. Offenders who are required to register for life are Class A offenders. D.C.Code § 22-4011(b)(2)(A). Class B offenders are those offenders, other than Class A offenders, who have committed an offense against a minor or have sexually abused a ward, patient, or client. D.C.Code § 224011(b)(2)(B). All other registered offenders are Class C offenders. D.C.Code § 22-4011(b)(2)(C). All offenders are subject to "passive" notification, which includes responding to inquiries and making registration lists available for inspection at police stations. D.C.Code § 22-4011(b)(3). With respect to Class A and B offenders, "passive" notification also includes the publication of the publicly accessible registry information on the Internet.*fn8 D.C.Code § 22-4011(b)(1)(B), (b)(3). Class A offenders are subject to "active" notification by MPD to "any person or entity." D.C.Code § 22-4011(b)(3). "Active" notification is defined as "affirmatively informing persons or entities about sex offenders" and may include "community meetings, flyers, telephone calls, door-to-door contacts, electronic notification, direct mailings, and media releases." D.C.Code § 22-4011(b)(1)(A). Class B and C offenders are subject to "active" notification by MPD only to law enforcement agencies; organizations that deal with vulnerable populations such as schools, day care centers, youth organizations, organizations servicing the elderly, churches, and victims rights and services organizations; victims and witnesses of the offender's crime and the family members or guardians of such victims and witnesses; and to any person where MPD has information that the sex offender may pose a specific risk to that person. D.C.Code § 22-4011(b)(3)(A)-(D).

The SORA contains a dispute resolution process that allows an offender who has been told he is subject to registration to show that the offense records are erroneous, that the offense does not meet the criteria for registration, or if the offender was convicted out-of-state, that his offense is not equivalent or substantially similar to a corresponding offense under District of Columbia law. D.C.Code § 22-4004(a)(1). The offender can file a motion in the Superior Court for the District of Columbia to obtain a determination as to whether he is required to register. D.C.Code § 224004(a)(2)(B). The court has the authority to hold a hearing and appoint counsel for the offender. D.C.Code § 22-4004(c)(1). There is no procedure under the statute for an offender to challenge the nature and extent of notification permitted under the statute once the offender has been classified, or to challenge the supposition that he poses a risk of recidivism and therefore should be subject to public notification. The risk of recidivism is determined solely by reference to the offense(s) committed, as is the nature and extent of notification permitted by the statute.

As of March 27, 2001, there were 279 offenders in the SORA registry. (Def. St. of Facts ¶ 20.) Of them, 119 are Class A offenders (43%), 149 are Class B offenders (53%), and 11 are Class C offenders (4%). (Id.) Thus, all offenders in the registry are subject to public notification, and 96% are subject to Internet notification. One viewing the Internet site can select to view all the offenders listed, or to search by name, district, PSA (police service area), or quadrant (N.E., N.W., S.E., or S.W.). See http://www.mpdc.dc.gov/serv/sor/sexoffender.shtm. In addition, 43% of the offenders are subject to active notification to "any person or entity." D.C.Code § 224011(b)(3).

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs John Does # 1-5 have brought this complaint for injunctive and declaratory relief. The complaint was filed as a putative class action and was accompanied by a motion for temporary restraining order. After a hearing on plaintiffs motion for temporary restraining order on February 28, 2001, the Court temporarily restrained defendants from any "passive notification of registration information regarding Class B sex offenders on the Internet." March 1, 2001 Order at 1. The defendants also agreed to "not provide under the notification provisions of SORA any information regarding an offender who was sentenced under the Youth Rehabilitation Act, D.C.Code § 24901, et seq. (2001), or the Federal Youth Corrections Act, 18 U.S.C. § 5005, et seq. (repealed 1984)." Id. At a status conference held on March 5, 2001, the parties agreed to defer addressing the class certification issue until the Court had ruled on the merits with respect to the claims of the five named plaintiffs. The parties also agreed to consolidate the preliminary injunction proceedings with an adjudication of the merits pursuant to Fed.R.Civ.P. 65(a)(2), and agreed that the temporary restraining order and agreement with respect to the youth offenders would remain in effect pending the Court's decision on the merits.

The five named plaintiffs are sex offenders who are required to register under the SORA. When he was twenty, John Doe # 1 had sexual relations with a thirteen-year-old girl who was the daughter of a woman he had been dating. (Def. St. of Facts ¶¶ 22-26.) In December 2000, Doe # 1 entered a guilty plea to a charge of simple assault, and was sentenced under the YRA to 90 days of unsupervised probation.*fn9 (Id. 1 ¶ 27, 30-31.) Doe # 1's conviction has recently been set aside pursuant to the YRA. (P1. Reply Ex. 5.) Because Doe # 1's offense is not a lifetime offense, but involved a victim who was a minor, he is a Class B offender. (Def. St. of Facts ¶ 29.) John Doe # 2 was convicted of misdemeanor sexual abuse involving a minor, and is a Class B offender. (Id. ¶¶ 37, 38.) In 1998, Doe # 2, who was nineteen at the time, placed the hand of a four-year-old girl on his penis. (Id. ¶¶ 33-36.) Doe # 2 was sentenced in June 1999 to one year of probation under the YRA. (Id. ¶ 39.) Doe # 2's conviction was set aside pursuant to the YRA on May 22, 2000. (PI.Ex. 12 ¶¶ 3-5.) In January 1971, John Doe #3 was found not guilty by reason of insanity of assault with intent to commit rape and robbery, an offense committed in December 1969 against an 80-year-old woman from whom he stole $15. (Def. St. of Facts ¶¶ 40-43.) Assault with intent to rape is a lifetime registration offense. Doe # 3 is therefore a Class A offender. (Id. ¶ 44.) Doe # 3 was committed to St. Elizabeth's Hospital, where he remains in custody, and has had several conditional releases and re-admissions over the years. (Id. ¶¶ 45-46.) According to plaintiffs, Doe #3's left leg was amputated below the knee due to a serious infection, and he has a prosthesis that he uses infrequently, and is often confined to a wheelchair. (P1. St. of Facts ¶ 9.) John Doe # 4 was found not guilty by reason of insanity of first degree burglary and assault with intent to commit rape in April 1983, based on a 1982 incident where he forcibly entered the home of a former girlfriend and attempted to have sexual intercourse with her. (Def. St. of Facts ¶¶ 48-50.) Doe # 4 was conditionally released from St. Elizabeth's Hospital in March 2001. (Id. ¶¶ 54-55.) Because assault with intent to commit rape is a lifetime registration offense, Doe # 4 is a Class A offender. (Id. ¶ 53.) John Doe # 5 pled guilty in January 2000 to a misdemeanor charge of lewd, indecent, or obscene acts, which involved a fifteen-year-old male victim who alleged that Doe # 5 had paid him for sex. (Id. ¶¶ 56-59.) Doe #5 contends that the contact was non-forcible, and that he believed the male was older than fifteen. (Pl.Ex. 15 ¶ 1.) Doe # 5 was sentenced to five years of supervised probation. (Def. St. of Facts ¶ 61.) Doe #5 also received individual and group therapy and treatment following his offense. (PI.Ex. 16 ¶ 3.) Because his offense is not a lifetime offense, but the victim was a minor, Doe # 5 is classified as a Class B offender. (Def. St. of Facts ¶ 60.)

LEGAL ANALYSIS

I. PROCEDURAL DUE PROCESS

Under the Due Process Clause of the Fifth Amendment, which binds the District of Columbia, Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954), "no person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. Const. Amend. V. Procedural due process rules exist to protect a person from mistaken or unjustified deprivation of life, liberty, or property, and this right to process exists irrespective of the merits of a claimant's substantive assertions. Carey v. Piphus, 435 U.S. 247, 259-60, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). "We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted).

Plaintiffs allege that the SORA subjects them to stigma, in addition to violating their privacy rights, restricting their right to pursue chosen employment, and imposing upon them significant burdens associated with the statute's registration requirements. To trigger procedural due process rights, plaintiffs must suffer a change in legal status in addition to the stigma they allege would result from public notification of the registry information. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ("[R]eputation alone, apart from some more tangible interests such as employment, is [not] either `liberty' or `property' by itself sufficient to invoke the procedural protection of the Due Process Clause."). See also Cutshall v. Sundquist, 193 F.3d 466, 470 (6th Cir. 1999) ("Only where the stigma of damage to a reputation is coupled with another interest . . . is procedural due process protection triggered. . . . The Due Process Clause is implicated only when state conduct alters `a right or status previously recognized by state law.' This has come to be known as the `stigma-plus' test.") (citations omitted).

It is beyond dispute that public notification pursuant to the SORA results in stigma. See Doe v. Lee, 132 F. Supp.2d 57, 63 (Conn. 2001) ("The stigma question [is] whether, assuming plaintiff is not dangerous, public dissemination of the sex offender registry conveys the erroneous message that he is. The answer to this question must be yes. Despite the accuracy of the registry data concerning the plaintiff and the statement on the web site that no determination of any individual's dangerousness has been made, the registry suggests that plaintiff is currently dangerous."); Doe v. Pataki, 3 F. Supp.2d 456, 467-68 (S.D.N.Y. 1998) ("First, plaintiffs have convincingly demonstrated that, when implemented, the community notification provisions of the Act will likely result in their being branded as convicted sex offenders who may strike again and who therefore pose a danger to the community. . . . [S]uch widespread dissemination of the above information is likely to carry with it shame, humiliation, ostracism, loss of employment and decreased opportunities for employment, perhaps even physical violence, and a multitude of other adverse consequences. Thus, there is no genuine dispute that the dissemination of the information contemplated by the Act to the community at large is potentially harmful to plaintiffs' personal reputations.").

Plaintiffs argue that several "plus factors" are implicated by the SORA. They allege, inter alia, that the SORA infringes on their liberty interests under the YRA, violates their privacy rights, and alters their legal status by requiring sex offenders to satisfy the registration requirements mandated by SORA.*fn10

To support their argument regarding an alteration of their legal status, plaintiffs point out that the SORA and its implementing regulations impose a host of registration obligations on all sex offenders. They must:

1) Register with the Agency as a sex offender;

2) Provide any information required for registration, and cooperate in ...

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