Appeal from the Superior Court of the District of Columbia, Criminal Division - Special Proceedings Branch (SP Nos. 433-01, 438-01, 456-01, 461-01, 439-01, 436-01, 1086-01, & 459-01) (Hon. Michael L. Rankin, Hon. Judith E. Retchin, Hon. Shellie F. Bowers, & Hon. Lee F. Satterfield, Trial Judges)
Before Wagner, Chief Judge, and Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
The District of Columbia Sex Offender Registration Act of 1999 ("SORA"), D.C. Code §§ 22-4001 through 22-4017 (2001), imposes registration requirements on sex offenders who live, work, or attend school in the District of Columbia and authorizes the Metropolitan Police Department to inform the community about them through various means of public notification, including posting their photographs, names, and other personal information on the Internet. In the past decade every state in the United States has enacted such a sex offender registration and notification law, though the terms of the statutes vary from jurisdiction to jurisdiction. Appellants, eight individuals who have been directed to register in the District of Columbia as required by SORA, ask us to declare the legislation unconstitutional. Appellants contend that SORA inflicts punishment and therefore violates the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the Constitution in its application to persons who, like themselves, committed sex offenses before its enactment or were acquitted of sex offenses by reason of insanity. Appellants further contend that even if it is not viewed as a penal enactment, SORA deprives them of procedural and substantive due process by denying them individualized hearings on whether they are presently dangerous and by infringing on their fundamental rights and liberty interests. Appellant W.B. adds the claim, specific to him alone, that the Superior Court denied him procedural due process by assigning the burden of persuasion to him instead of to the government when he sought judicial review of an administrative determination that he is subject to a lifetime registration requirement rather than a ten-year registration requirement.
During the pendency of appellants' appeals to this court, the United States Supreme Court granted two certiorari petitions to consider similar constitutional challenges to the sex offender registration and notification acts of Alaska and Connecticut. Each of those acts is comparable to our SORA. We stayed appellants' cases following oral argument to await the outcomes in the Supreme Court. In Smith v. Doe, 538 U.S. 84 (2003), the Court held that Alaska's act does not impose punishment and so is not an unconstitutional ex post facto law as applied to offenders who committed crimes before the act was adopted. In Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), the Court held that Connecticut's act did not deny procedural due process by requiring sex offenders to register without affording them a hearing on dangerousness, inasmuch as the registration requirement was based on the fact of conviction without regard to dangerousness. After the Supreme Court issued its opinions, we requested the parties before us to address them in supplemental briefing. In complying with that request, appellants reformulated and expanded their substantive due process claims, and the government responded commensurately. The appeals now are ready for us to decide.
We conclude that the Supreme Court has settled most, though not all, of the issues presented in the instant appeals. In line with the reasoning in the Supreme Court's decision on the Alaska act, we hold that the District's SORA is not punitive. Hence the application of SORA to persons who committed sex offenses before it was enacted or who were acquitted of sex offenses by reason of insanity does not, for either of those reasons, offend the Ex Post Facto, Double Jeopardy or Due Process Clauses. In accordance with the Supreme Court's decision on the Connecticut act, we further hold that SORA does not deny procedural due process by requiring all persons who have committed sex offenses to register without affording them a hearing on their current dangerousness.
Although the Supreme Court did not decide whether the Alaska and Connecticut laws denied substantive due process, as no such claim was raised in either case, we also reject appellants' challenge to the District of Columbia SORA on that ground. We conclude that SORA does not infringe any fundamental rights or liberty interests of appellants and therefore is constitutional so long as it is rationally related to a legitimate governmental goal - a test the law meets easily.
Finally, we grant appellant W.B.'s individual claim in part. Specifically, we hold that due process requires the government to shoulder the burden of persuasion on the factual issue that determined whether W.B. would have to register for life or for ten years. We further hold that the standard of proof that the government must meet as to that issue is the usual "preponderance of the evidence" standard, not a higher, "clear and convincing evidence" standard that W.B. proposes.
A. The District of Columbia Sex Offender Registration Act of 1999
In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071, to address the problem of recidivism by sex offenders. As subsequently amended, the Act required each state and the District of Columbia, as a condition of receiving certain federal funds, to establish a program of sex offender registration and community notification. In response to the Wetterling Act, the Council of the District of Columbia enacted the SORA of 1999. The material registration and notification provisions of SORA, which *fn1 we shall now describe, are comparable if not identical to those imposed by the sex offender registration laws enacted in numerous other jurisdictions, including those of Alaska and Connecticut that the Supreme Court recently upheld.
SORA imposes registration requirements on sex offenders based on the nature of the offenses they committed rather than on an individualized assessment of their risk of recidivism. Thus, SORA requires persons who have committed serious sex offenses to register with the Court Services and *fn2 Offender Supervision Agency ("CSOSA") if they live, reside, work or attend school in the District of Columbia. For purposes of this requirement, a person has "committed" a registration offense if he or she was convicted of the offense, found not guilty of the offense by reason of insanity, or found to be a sexual psychopath pursuant to D.C. Code § 22-3803 et seq. (2001). See D.C. Code § 22-4001 (3)(A). The determination that a particular person is required by SORA to register is made in the first instance by either the Superior Court or CSOSA. See D.C. Code §§ 22-4003, -4007. When CSOSA makes the initial determination, it is subject to judicial review in Superior Court. See D.C. Code § 22-4004. *fn3
Upon registering, a sex offender is required to provide CSOSA with a photograph, fingerprints and other identifying information, including his or her "name, all aliases used, date of birth, sex, race, height, weight, eye color, identifying marks and characteristics, driver's license number, social security number, law enforcement agency identification numbers, home address or expected place of residence, and any current or expected place of employment or school attendance."
D.C. Code § 22-4007 (a)(2); see also § 22-4014. In addition, CSOSA is directed to obtain criminal history data and detailed information concerning the sex offense that the registrant committed. The period for which the offender must remain registered with CSOSA depends on the nature of that offense. Offenders who have committed the most serious offenses must register for life; all others must register for ten years or until the end of any period of probation, parole, supervised or conditional release, or convalescent leave, whichever is later. See D.C. Code §§ 22-4001 (6), -4002. During the applicable registration period, a sex offender must report any changes of address or other registration information. See D.C. Code § 22-4009 (a). Registrants also are required to verify their addresses and other information annually, or in the case of lifetime registrants, quarterly. See D.C. Code § 22-4008 (a)(1); 6A DCMR § 409.1.
SORA authorizes CSOSA to adopt procedures to implement the statutory registration requirements. See D.C. Code § 22-4007 (a). Among other things, CSOSA is authorized "to direct that a sex offender meet with a responsible officer or official at a reasonable time for the purpose of complying with any requirement adopted by the Agency under this chapter." D.C. Code § 22-4007 (b). A sex offender who knowingly violates any requirement of SORA, including any requirement adopted by CSOSA to implement the Act, is guilty of a misdemeanor punishable by a fine of not more than $1,000, imprisonment for not more than 180 days, or both. See D.C. Code § 22-4015 (a). Repeat offenders "shall be fined not more than $25,000, or imprisoned not more than 5 years, or both." Id. Additionally, compliance with SORA and CSOSA requirements is a mandatory condition of probation, parole, supervised release, and conditional release of any sex offender sentenced after the law took effect. D.C. Code § 22-4015 (b).
CSOSA gathers the information that it collects from sex offenders in a central registry. See D.C. Code § 22-4010 (a). SORA directs CSOSA to share this information with the Federal Bureau of Investigation, the National Sex Offender Registry, the Metropolitan Police Department, and other law enforcement and governmental agencies. See D.C. Code § 22-4010 (b). Except for records made public in accordance with the notification provisions described below, "no sex offender registration information shall be available as a public record" under the District of Columbia Freedom of Information Act. D.C. Code § 22-4017.
SORA's provisions for the public dissemination of registrant information are also offense-based. For notification purposes, SORA divides sex offenders into three classes depending on the nature of their registration offenses. Offenders who are required to register for life are in Class A. Ten-year registrants who have committed offenses against minors or sexual abuse of wards, patients, or clients are in Class B. Other ten-year registrants are in Class C. See D.C. Code § 22-4011 (b)(2)(A), (B), (C).
SORA authorizes the Metropolitan Police Department ("MPD") to provide both "active notification" and "passive notification" to the public of information concerning registered sex offenders. The statute defines "active notification" to mean "affirmatively informing persons or entities about sex offenders" by any authorized means, including "community meetings, flyers, telephone calls, door-to-door contacts, electronic notification, direct mailings, and media releases."
D.C. Code § 22-4011 (b)(1)(A). The MPD may provide active notification about Class A offenders "to any person or entity." D.C. Code § 22-4011 (b)(3). The MPD also may provide active notification about Class B and Class C offenders to specified groups with particular needs for the information, such as schools and other organizations that serve vulnerable populations, victims and their families, and law enforcement agencies. See D.C. Code § 22-4011 (b)(3). *fn4
"Passive notification" means "making information about sex offenders available for public inspection or in response to inquiries." D.C. Code § 22-4011 (b)(1)(B). "Authorized means of passive notification include, but are not limited to, Internet postings, making registration lists and information about registrants available for inspection at police stations and other locations, and responding to written or oral inquiries in person, through the mail, by telephone, or through email and other electronic means." Id. The MPD may furnish the public with passive notification about sex offenders in any of the three classes, except that Internet postings "shall be limited to information on Class A and Class B offenders." D.C. Code § 22-4011 (b)(3).
SORA does not specify what particular information collected from or on registrants may be disseminated to the public by means of active or passive notification. In practice, not everything is published. An MPD regulation provides that the following personal descriptive information may be disclosed publicly for all three classes of registrants: the offender's name and any aliases, date of birth, sex and race, height and weight, eye and hair color, any identifying marks or characteristics, and a photograph of the offender. Other identifying data furnished by registrants, such as their fingerprints, driver's license and social security numbers, are kept confidential and not disclosed to the public. Where the offender resides, works or attends school may be identified "by block only" (i.e., precise addresses are not to be published). The police also may disclose offense information, *fn5 the date of registration and the date the information last was verified, and whether there is an outstanding arrest warrant for the offender. 6A DCMR § 420.1. SORA requires that "[a]ll publicly disseminated sex offender registration information shall contain a warning that crimes committed against sex offenders will be prosecuted to the full extent of the law." D.C. Code § 22-4011 (d).
The record before us does not include information about any specific active notification activities of the MPD but does reveal how the MPD fulfills its passive notification responsibilities. The MPD maintains complete lists of registrants in all three classes with photographs and other information in registry books available for public inspection at all police stations in the city. The MPD also maintains an Internet website at which visitors may inspect the registry of Class A and Class B offenders. See DISTRICT OF COLUMBIA SEX OFFENDER REGISTRY available at http://www.mpdc.dc.gov/serv/sor/sor.shtm (last visited Mar. 26, 2004). The introduction to the registry on the website includes the following statement:
This information is not intended to create alarm or panic. Our intent is to inform our citizens and to enhance community safety and awareness. The Metropolitan Police Department has not considered or assessed the specific risk of reoffense for any individual registrant included in the registry. In addition, it has made no determination that any offender included in the registry is currently dangerous. Offenders are included in the registry solely by virtue of their conviction record. Unlawful use of this information to threaten, intimidate, harass, or injure a registered sex offender will not be tolerated and will be prosecuted to the full extent of the law.
http://www.mpdc.dc.gov/serv/sor/impreminder.shtm (last visited Mar. 26, 2004). The warning against unlawful use of registry information is repeated at various places throughout the website. The "Frequently Asked Questions" section of the site explains that the registry information is provided "not to punish or stigmatize sex offenders, but rather to provide factual information that will allow adults in this community to make more informed decisions about whom they associate with or entrust their children to." http://www.mpdc.dc.gov/serv/sor/faqs.shtm (last visited Mar. 26, 2004). There are also more ominous-sounding statements. "Remember," it is emphasized, "the purpose of community notification is to reduce the chance of future victimization of persons by this offender. Knowledge of the sex offender should assist you and your family in avoiding the sex offender and becoming a victim." Id. Visitors to the website are cautioned that unless a court has *fn6 imposed specific restrictions, a released sex offender "has a right to live wherever he/she chooses."
B. The Appellants and the Course of ...