the Legislature has done[,]" the Court also rejected the argument that the Legislature's stated intent should govern. Id. at 9. Engaging in the punitive/regulatory analysis set forth by the Supreme Court in Kennedy, supra, the Alaska District Court determined that those criteria weighed in favor of finding the law punitive.
The initial determination, whether the law imposes an affirmative duty on registrants, led the Rowe court to conclude that "the Registration Act may subject registrants . . . to public stigma and ostracism that would affect both their personal and professional lives." Id. at 11. The Court found that the second Kennedy criterion, whether the conditions imposed by the law were historically viewed as punishment, weighed in favor of finding against a punitive purpose. Id. at 12. Finding that the third element of the analysis, scienter, weighed in favor of finding the law punitive, the Court cautioned that the weight given this particular conclusion ought to be light based on Ninth Circuit precedent. Id. at 12-13 (citing United States v. Huss, 7 F.3d 1444 (9th Cir. 1993)).
In its analysis whether the Registration Act promoted the traditional aims of punishment (namely, deterrence or retribution), the Rowe court found that the act was "obviously meant to deter crime." That finding notwithstanding, the court found that under the registration act the deterrence involved placed a de minimis burden upon registrants. "The only meaningful deterrence flowing directly from registration comes from modifying the conduct of the police and the public. Forewarned of a sex offender's presence, potential victims may take evasive action, and the police may be able to act more swiftly." Id. at 13 (emphasis in original). The court's analysis, however, did not end there: it looked to the indirect consequence of registration. The Rowe court found that the embarrassment, harassment, ostracism, or worse, likely to result from public dissemination of a registrant's information deemed the act punitive. Id. at 14.
The fact that the conduct to which the Registration Act applied was already a crime, in the Rowe court's view, was indicative of the Act's punitive nature. As with scienter, however, the court found that the weight given to this conclusion should be light. Id. at 15 (the Rowe court was again unwilling to trample on Ninth Circuit precedent by which it was bound). Finding that the Act was rationally related to the protection of society from crime, the court concluded that the sixth element of Kennedy analysis weighed against finding the registration act punitive.
The last element of Kennedy analysis gave the Rowe court reason to separate the registration requirement itself from the consequent public dissemination of a registrant's information. Id. at 15-16. The court looked to precedent from other jurisdictions (discussed herein), but independently concluded that Alaska's Registration Act was overly broad in its provision for the public dissemination of registration information. Id. at 16-17. As such, the court found that the seventh element of Kennedy analysis weighed in favor of finding the Act punitive.
Based on that balancing of the punitive versus regulatory criteria, the court was persuaded that plaintiffs had a meritorious claim that the Alaska Registration Act violated the ex post facto clause of the Constitution. Id. at 17.
In the instant case, if the Court is to find that the legislative purpose for Megan's Law was not entirely or solely regulatory, it must apply the Kennedy factors thereto and determine its actual punitive aims or effects, if any. In so doing, the Kennedy factors cannot be viewed in a vacuum. Instead, they must -- in practical application -- take cognizance of other related criteria such as the purposes of punishment generally, the privacy interests involved, and the concerns implicated by the other challenges asserted by plaintiff.
Before proceeding with an analysis of Megan's Law in the ex post facto context, it is helpful to review the other claims of unconstitutionality involved in this case, particularly since in the ex post facto analysis, there are overlapping constitutional considerations.
(B) CRUEL AND UNUSUAL PUNISHMENT
The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishment. U.S. CONST. Amend. VIII. The original intent of the Eighth Amendment was to protect United States citizens from torture and barbarous treatment. Estelle v. Gamble, 429 U.S. 97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The concept has been expanded over time. See Weems v. United States, 217 U.S. 349, 367, 54 L. Ed. 793, 30 S. Ct. 544 (1910) (punishment should be proportionate to the crime); Trop v. Dulles, 356 U.S. 86, 99, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (punishment should fall within the confines of civilized standards); Robinson v. California, 370 U.S. 660, 666, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962) (applying the Eighth Amendment to the states under the Fourteenth Amendment).
There is some disagreement as to the appropriate test courts should apply in Eighth Amendment cruel and unusual punishment analysis. However, in the instant context, the Court must first focus on whether the registration act passed by the New Jersey Legislature may be categorized as "punishment". If the Court so finds, it must then determine whether the registration act and its attendant notification provisions constitute "cruel and unusual" punishment. See Kennedy v. Mendoza-Martinez, supra.
It is well established that, in the context of Eighth Amendment statutory review, the Court should focus on whether the penalty involved accords with "the dignity of man," and whether the punishment is "grossly disproportionate" to the offense involved. McCleskey v. Kemp, 481 U.S. 279, 300, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987); Trop v. Dulles, 356 U.S. 86, 100, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). In 1983, the Supreme Court set forth a three-prong test to be used in evaluating whether or not punishment is proportionate to the crime. In Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), the Court established that a determination must be made of (1) "the gravity of the offense and the harshness of the penalty", (2) "the sentences imposed on other criminals in the same jurisdiction", and (3) "the sentences imposed for commission of the same crime in other jurisdictions." Id. at 291-92. See Solem. The Solem test, however, appears to have lost favor with the Supreme Court.
In Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991), the Court was divided in its lack of continued support for the Solem criteria. One plurality of the Court concluded that "Solem was simply wrong; the Eighth Amendment contains no proportionality guaranty." Id. at 965 (opinion of Scalia, J., joined by Rehnquist, C.J.). On the other hand, another plurality agreed that "the Eighth Amendment does not require strict proportionality between crime and sentence . . . [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id. at 1001 (opinion of Kennedy, J., joined by O'Connor and Souter, JJ.). Thus, what is clear from Harmelin is that clarity is now lacking as to the proper application of Eighth Amendment scrutiny to legislation such as that presently before this Court.
Because Megan's Law has been challenged on the ground that it violates the cruel and unusual punishment prohibition of the Eighth Amendment, the Court must attempt to determine -- under some appropriate standards -- whether Megan's Law does in fact violate plaintiff's constitutional rights. In this effort, the Court is guided by decisions from other jurisdictions evaluating the effect of the Eighth Amendment on registration acts.
As previously noted in the discussion of the ex post facto challenge, the courts of other jurisdictions have differed as to whether notification statutes constitute punishment. Moreover, as noted in the discussion of Collins, supra, merely being labeled by the legislature as a regulatory rather than a punitive provision does not save legislation from Kennedy scrutiny. It should be further noted that, in the context of statutes requiring registration only with local authorities and containing no public notification provisions, courts upholding such laws have been persuaded by the fact that the laws before them did not mandate public dissemination of registrants' registration information. At least one court rested on that criterion in determining that the statute under review was not punitive. See People v. Adams, 198 Ill. App. 3d 74, 555 N.E.2d 761, 766, 144 Ill. Dec. 402 (Ill. App. Ct. 1990), aff'd, 144 Ill. 2d 381, 581 N.E.2d 637, 163 Ill. Dec. 483 (Ill. 1991).
In the pre-Harmelin case of Arizona v. Lammie, 164 Ariz. 377, 793 P.2d 134 (Ariz. Ct. App. 1990), the Arizona Court of Appeals concluded that that state's registration act did not violate the cruel and unusual punishment prohibition of the Eighth Amendment. Basing its analysis on Solem, the court concluded that the gravity of the offense (attempted sexual assault with violence) justified the harshness of the penalty. Registration, in the Lammie court's view, had a "prophylactic effect, deterring [the registrant] from future sexual crimes." Id. at 139. Because all other sexual offenders within the jurisdiction also had to register under the act, the court found that the statute survived the second element of Solem analysis. Likewise, because other states imposed similar penalties for the same crime, the court was satisfied that Arizona's registration act was not disproportionate to that of other jurisdictions. Id. at 140.
A case from the Supreme Court of Illinois, People v. Adams, 144 Ill. 2d 381, 581 N.E.2d 637, 163 Ill. Dec. 483 (Ill. 1991), began and ended its Eighth Amendment analysis with a determination that the statute was non-penal in nature. Id. at 641-42. Concluding that the Illinois Legislature had intended the act to be non-penal, the court determined that no application of Kennedy principles to determine whether the act was non-regulatory was necessary. Id. at 641. Moreover, the court was persuaded, at least in part, by the fact that the act made no attempt "to correct the behavior of sex offenders." Id.
The Adams court, in dicta, considered the registrant's argument that the effect of the statute was to confer upon him a public stigma, thereby constituting cruel and unusual punishment. The court was unpersuaded by that argument in light of the fact that Illinois' registration act did not provide for public dissemination of a registrant's information -- in fact, it outlawed such dissemination. Id. at 641. See also Ohio v. Douglas, 66 Ohio App. 3d 788, 586 N.E.2d 1096 (Ohio 1989) (a pre-Harmelin case applying Solem analysis, holding that non-public registration statute was constitutional); Washington v. Estavillo, 69 Wash. App. 401, 848 P.2d 1335 (Wash. Ct. App. 1993) (finding that a registration statute was not punitive, thus a cruel and unusual punishment analysis was not triggered).
As such, it appears from the Trop and Solem line of cases -- culminating in Harmelin -- that courts applying Eighth Amendment cruel and unusual punishment analysis react only to severe harshness bearing no relation to the gravity of the underlying offense. Although the consequent application of Kennedy's punitive versus regulatory analysis may thus be considered only a threshold concern, its application is still required to make that preliminary determination. In this respect, both ex post facto analysis and Eighth Amendment analysis hinge on the same initial determination.
This Court need not address the second concern under the Eighth Amendment: whether the punishment inflicted is cruel and unusual. Such a determination -- in light of plaintiff's challenge to the retroactive application of Megan's law -- would in practical terms be redundant because of the application of the ex post facto doctrine. Thus, while this Court does not reach the issue of whether or not the registration and notification provisions of Megan's Law violate the Eighth Amendment, it is mindful of the concerns expressed by both the Supreme Court and other courts. Therefore, this Court will consider them in the overall evaluation of the ex post facto challenge and the application of the Kennedy analysis.
(C) THE RIGHT TO PRIVACY
The framers of the Constitution, although expressing concern for the protection of life, liberty, and property, did not install in the Constitution any provision protecting the privacy interests of United States citizens. However, the Supreme Court has, in a series of observations and dicta culminating in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), recognized an individual's right to hold certain private matters secure, away from public scrutiny.
The modern genesis of the right to privacy may be found in Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). In Griswold, the Supreme Court recognized that there are certain zones of privacy upon which the government cannot tread. The Griswold Court found a Connecticut statute restricting the use of contraceptives by married couples to be unconstitutional on the ground that it impinged on matters "concerning a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Id. at 485. The court found these constitutional guarantees in the First, Third, Fourth, Fifth, and Ninth Amendments. Id. at 484. In Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), the Court extended the right to privacy to include the right of unmarried persons to gain access to contraceptive devices. Id. at 452-55. The privacy doctrine reached its analytical zenith in the 1973 case of Roe.
In Roe, the majority traced the development of the right to privacy. 410 U.S. at 152-53. The Court balanced a woman's right to either abort a fetus or carry it to term against the state's interest in regulating that choice. Determining that the state does have some right to regulate abortion at certain stages in the pregnancy, the Court, however, concluded that a woman's right to privacy protects the decision whether to abort a fetus. Id. at 153-54. Roe listed those areas of personal autonomy which deserve protection under the constitutional right to privacy: activities relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id. at 152-53 (citations omitted). Thus, coupled with the right of a woman to continue or terminate her pregnancy, after Roe this list constituted the gamut of privacy protections.
In 1977 the Supreme Court acknowledged that the right to privacy may include "the individual interest in avoiding disclosure of personal matters[.]" Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). Whalen involved a New York State policy of maintaining computer files to record the names and addresses of persons who had obtained certain controlled prescription drugs. That policy was challenged on the ground that it infringed such persons' right of privacy. While recognizing the privacy right to safeguard personal information, in Whalen the Court found that such a right had not been violated by the New York policy. Id. at 603-04. Later, in Nixon v. Administrator of General Services, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977), the Court revisited the concept of informational privacy. In a challenge to a congressional act allowing the government to obtain former President Nixon's presidential papers which related to the Watergate era, the Court found that in that instance the public interest in obtaining the documents coupled with the proper screening of the material so as not to offend Mr. Nixon's privacy concerns deemed the act constitutional. Id. at 465. Thus, the Court balanced privacy interests against the public need for information.
In a 1976 case, the Supreme Court considered whether an individual's interest in his reputation was protectable under the right to privacy. In Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), the Court reviewed the distribution by police of a photograph and informational sheet designating an individual as an active shoplifter, even though he had merely been arrested for shoplifting and had not yet been convicted thereof. Reviewing the individual's privacy claim, the Court stated:
[Challenger] claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim's based, not upon any challenge to the state's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the state may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.