January 18, 2006
VIOLENT OFFENDER REGISTRIES
By: Christopher Reinhart, Senior Attorney
You asked for information about violent offender registries.
We found three states that require violent offenders to register: Kansas, Montana, and Oklahoma. All three have websites to search for offender information. All three require registration for offenders who commit homicides but the states vary in the types of other crimes that are included. All three require 10 year registration for first time offenders and lifetime registration for repeat offenders. Some other offenders must register for life. For example, in Montana, a person convicted of a violent crime that requires registration who does not register or keep his registration current must register for life. Montana also allows an offender to petition the court to end his registration: the court must grant the petition if the person's required 10 year registration is over and the court may grant it to end lifetime registration in certain circumstances.
Below we include a list of the crimes requiring registration and the registration periods in each state. If you would like further information on any of these laws, please let us know.
It appears that Connecticut could adopt such a registry. Connecticut has a comprehensive body of law regarding public access to criminal record information. The law makes conviction information generally available to the public. The public can access information by contacting the police department that conducted the investigation or the court that heard the matter. The public can also contact the State Police and pay $25 for a person's criminal history record using either the person's name and date of birth or fingerprints.
A violent offender registry would appear to be similar to a sex offender registry and the courts have upheld laws requiring sex offenders to register. In 2002, the U.S. Supreme Court made two rulings upholding sex offender registries. In one involving Connecticut's sex offender registry, the Court considered a case where the lower courts determined that public disclosure and dissemination of the registry implicated potential registrants' constitutional liberty interests, thus giving them the right to show that they were not dangerous before the department added their names to the public registry. The Court ruled that even if sex offender registration implicates a constitutional liberty interest, a question it found unnecessary to decide, it concluded that offenders receive all the process that is constitutionally required when they are given the opportunity to contest their guilt in the criminal proceedings. Whether or not an offender is dangerous at the time he is required to register is irrelevant under Connecticut's law; thus holding a hearing on that question could not change the result.
In the second case, involving Alaska's sex offender registry, the Court ruled that applying the registration law retroactively to offenders convicted before the act's passage did not violate the Ex Post Facto Clause of the U.S. Constitution. The Court found the registration requirement non-punitive and therefore was not a retroactive punishment forbidden by the clause.
While it appears that the legal reasoning in the sex offender registry cases would apply to a violent offender registry, it is possible that different legal arguments could be made regarding a violent offender registry.
VIOLENT OFFENDER REGISTRIES LAWS IN OTHER STATES
Kansas expanded its registration law to include offenders who committed violent crimes in 1997. Violent offenders are those convicted of:
1. murder (capital murder and 1st and 2nd degree murder);
2. manslaughter (voluntary and involuntary);
3. attempt, conspiracy, or solicitation to commit one of the above crimes; and
4. crimes in federal, military, and other state courts that are comparable.
Another provision requires registration of those convicted of (1) kidnapping and aggravated kidnapping when the victim is under age 18 and (2) criminal restraint when the victim is under age 18.
First time offenders register for 10 years and second time offenders for life (Kansas § 22-4901 et seq.).
In 1995, Montana required certain violent offenders to register in addition to sexual offenders. The offenders are those convicted of:
1. aggravated assault;
3. assault on a minor, peace officer, or judicial officer;
4. assault with a weapon;
5. deliberate and mitigated deliberate homicide;
6. operation of an unlawful clandestine laboratory (certain offenses involving illegal drugs);
7. partner or family member assault (third or subsequent conviction);
9. attempt, solicitation, or conspiracy to commit any of these crimes; or
10. reasonably equivalent offenses in other states or under federal law.
Violent offenders register for 10 years. If the person is convicted of a felony or of failing to register or keep registration current during the 10 year period, registration is for life.
After 10 years of registration, an offender can petition the court for an order to end registration. The court must grant the order if the person's registration period is over. If the offender is subject to lifetime registration, the court may grant the petition if (1) the offender has been a law-abiding citizen and (2) continued registration is not necessary to protect the public and ending registration is in society's best interest (Montana Code § 46-23-501, et seq.).
In 2004, Oklahoma required certain violent offenders to register. The offenders are those convicted of:
1. 1st or 2nd degree murder;
2. 1st degree manslaughter;
3. (a) shooting or discharging a firearm with intent to kill; (b) using a vehicle to facilitate the intentional discharge of a firearm, crossbow, or other weapon; or (c) assault and battery with a deadly weapon or by means likely to produce death;
4. assault with intent to kill;
6. attempt to commit any of these crimes; or
7. any crime substantially similar to these adjudicated by a state, federal, tribal, or military court.
A person must register during his sentence and for 10 years after completing the sentence, which includes any term that is deferred, suspended, or subject to parole. A person must register for life as a habitual violent crime offender if he is convicted of a crime requiring registration and (1) is later convicted of another crime requiring registration or (2) enters the state after November 1, 2004 and has a conviction in another state for a crime that would require registration in Oklahoma (57 Ok. Stat. §591, et seq.).
CONNECTICUT—PUBLIC ACCESS TO CONVICTION INFORMATION
Conviction information is available to the public and agencies holding such information must establish reasonable hours and places for inspection (CGS §§ 54-142k(a) and (b)). “Conviction information” means criminal history record information, other than erased records, that discloses that a person has pleaded no contest or nolo contendere, or was convicted of a crime (CGS § 54-142g(c)). “Criminal history record information” means court records and information compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining with regard to each such offender notations of arrests, releases, detentions, indictments, informations, pleas, trials, sentences, appeals, incarcerations, correctional supervision, and paroles. Criminal history record information does not include intelligence, presentence investigation, investigative information, or disclosable bail information (CGS § 54-142g(a)).
U.S. SUPREME COURT RULINGS ON SEX OFFENDER REGISTRIES
Connecticut Case on Due Process
The U.S. Supreme Court considered Connecticut's sex offender registry in a case where the lower courts determined that public disclosure and dissemination of the registry implicated potential registrants' constitutional liberty interests, thus giving them the right to show that they were not dangerous before the department added their names to the public registry (Connecticut Department of Public Safety v. Doe (123 S.Ct. 1160 (2003)).
The plaintiff claimed that the registration law violated, among other things, the Due Process Clause of the U.S. Constitution's 14th Amendment. Specifically, he claimed that he is not a dangerous sexual offender and that the Connecticut law deprives him of a liberty interest without giving him notice or a meaningful opportunity to be heard.
The Court first discussed its prior Due Process Clause holdings, noting that in every case where it had found that a hearing was constitutionally required, the specific fact that was to be established at the hearing was relevant. But in the present case, the fact that the plaintiff sought to prove – that he is not currently dangerous – was not relevant to his registration obligations.
The Court determined that the Connecticut law's registration requirements turn on an offender's conviction alone – a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Thus, even if the plaintiff could prove that he is not likely to be currently dangerous, the Connecticut legislature has decided that the registry information of all sex offenders – currently dangerous or not—must be publicly disclosed.
The Court noted that the only question it had been asked to decide was whether Connecticut's statutory scheme violated the plaintiff's right to have a hearing about his current dangerousness. Because of this, it declined to express an opinion on whether the registration law conflicts with any other constitutional provision (Connecticut Department of Public Safety v. Doe, at 1164-65).
In a concurring opinion, Justice Scalia expressed the view that the passage of Megan's Law in and of itself abrogated whatever due process rights offenders might otherwise have had to disprove their dangerousness. Justices Souter and Ginsburg filed a second concurring opinion. They emphasized the narrowness of the issue that the Court decided and suggested that other constitutional claims, not raised in this case, were still viable.
Alaska Case On Retroactive Application
In a case involving Alaska's sex offender registry, the U.S. Supreme Court ruled that applying the registration law retroactively to offenders convicted before the act's passage did not violate the Ex Post Facto Clause of the U.S. Constitution (Smith v. Doe, 538 U.S. 84 (2003)). The Court found the registration requirement non-punitive rather than criminal and therefore not a retroactive punishment forbidden by the clause.
The Court stated that the determinative question was whether the legislature meant to establish “civil proceedings” rather than to impose punishment. If the legislature intended to create a regulatory scheme that is civil and non-punitive, the Court then looks at whether the scheme was so punitive in purpose or effect as to negate the state's intent to deem the law as civil.
The Court looked at the statute's text and structure for an express or implied preference for either label and looked at other formal attributes of the legislative enactment like codification or enforcement procedures. The Court found that Alaska intended to create a civil, non-punitive regime.
The Court also found that the act's effects did not negate Alaska's intention to establish a civil regulatory scheme. It examined the effects under the seven factors set out in Kennedy v. Mendoza-Martinez (372 U.S. 267). It found that the regulatory scheme:
1. has not been regarded in the nation's history and traditions as punishment;
2. does not impose an affirmative disability or restraint;
3. does not promote the traditional aims of punishment;
4. has a rational connection to a legitimate non-punitive purpose, public safety, that is advanced by alerting the public to the risk of sex offenders in their community; and
5. is not excessive with respect to its purpose.
The Court found that the other two factors had little weight in this case.
Justices Souter and Thomas both wrote separate opinions concurring in the judgment, Justice Stevens wrote a dissenting opinion, and Justice Ginsburg wrote a dissenting opinion that Justice Breyer joined.