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Sex Offender Registration and Community
Notification:
Past, Present, and Future

†

Wayne A. Logan∗
It’s a great honor to be with you here today and to provide the keynote
address in this wonderful symposium examining issues relating to
probation and parole. The panels have been remarkably rich and
informative. That they should occur here in Massachusetts, where
probation in particular originated in 1841,1 makes the proceedings today
especially fitting.
Probation and parole, of course, are the epitome of state—indeed,
community-based criminal justice. As recognized since the founding era,2
and repeatedly acknowledged by the U.S. Supreme Court,3 criminal justice
in our federal union is mainly an undertaking of state and local
governments, which process the lion’s share of criminal offenders and
ultimately must accommodate such individuals upon their reentry into
society.4
†
This article was adapted from a presentation given by Wayne A. Logan at the New
England Journal on Criminal and Civil Confinement’s 2007 Spring Symposium. Content
has been modified by the keynote speaker.
∗
Gary and Sallyn Pajcic Professor of Law, Florida State University College of Law. Thanks
to Christopher Ewbank, J.D. 2009, for his research help.
1.
See DAVID DRESSLER, PRACTICE AND THEORY OF PROBATION AND PAROLE 11-18
(1959).
2.
See, e.g., THE FEDERALIST No. 45, 260-61(James Madison) (Clinton Rossiter ed.,
1961) (“The powers reserved to the several States will extend to all the objects which, in the
ordinary course of affairs, concern the lives, liberties, and properties of the people.”).
3.
See, e.g., United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez,
514 U.S. 549 (1995).
4.
See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.2(b) (4th ed. 2004)
(characterizing the federal criminal justice system as a “bit player” compared to its state and
local counterparts and citing data in support).

3

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This predominance by the states is surely no less evident with respect to
persons convicted of sex offenses. However, with sex offenders, there is a
wrinkle: registration and community notification laws require the continued
monitoring of the hundreds of thousands of ex-offenders no longer subject
to probation and parole. In New York State, for instance, of the 24,300
persons in the state registry, almost 19,000 fall into this category.5
There’s also a unique federalism twist—in contrast to the broader
population of ex-offenders reentering society from state and local penal
facilities, as to whom the states and local governments unquestionably call
the shots—registrants are also very much the concern of the federal
government. It is this parallel involvement that I would first like to address.
Later, in the time available, I will comment on what I see as the coming
issues and challenges facing registration and community notification laws,
now in effect nationwide.
In the U.S., the idea of registering ex-offenders originated with localities
in the 1930s and the states soon thereafter.6 Concerned that they were being
swamped by gangsters who sought anonymous refuge within their growing
populations, and traveled about with increasing ease as a result of enhanced
means of transportation, state and local governments enacted laws
requiring persons convicted of a variety of felonious and non-felonious acts
to register.
Over the years the laws proliferated, culminating with a Supreme Court
decision in 1957, when a five-member majority in Lambert v. California7
invalidated on substantive due process/notice grounds Los Angeles’s “antigangster” registration ordinance. In subsequent years, local registration
laws in New Jersey8 and California9 were invalidated on preemption
grounds, on the rationale that state registration laws, when also in effect,
occupied the field and hence, trumped local efforts.
While a setback for advocates of registration, the decisions did not
condemn use of registration in principle. As the Lambert majority noted,
registration itself was “but a law enforcement technique designed for the
convenience of law enforcement agencies through which a list of the names
and addresses of felons then residing in a given community is compiled.”10
5.
Elizabeth Benjamin, Flaws Cited in Sex Cases: Spitzer Asked to Improve Methods
of Keeping Track of Released Offenders, TIMES UNION (Albany, N.Y.), Mar. 8, 2007, at A1.
6.
On the history of registration laws more generally, see WAYNE A. LOGAN,
KNOWLEDGE AS POWER: A HISTORY OF CRIMINAL REGISTRATION LAWS IN AMERICA
(Stanford Univ. Press forthcoming 2008).
7.
355 U.S. 225 (1957).
8.
State v. Ulesky, 252 A.2d 720 (N.J. 1969).
9.
Abbott v. Los Angeles, 349 P.2d 974 (Cal. 1960).
10.
Lambert, 355 U.S. at 229; see also Ulesky, 252 A.2d at 721 (noting that
registration of ex-offenders benefits police by providing “an awareness of individuals whose

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Nevertheless, Lambert’s concern over notice dampened local government
interest in registration, and interest among state governments remained
modest. Florida, in 1937, became the first state to adopt a registration law,
but did so sparingly, only requiring registration of persons convicted of
felonies “involving moral turpitude” living in the state’s three most
populous counties.11 In 1947, California enacted the nation’s first
registration law of state-wide application, targeting convicted sex
offenders. By 1989, however, only twelve states had registration laws.12
While it was not uncommon for state and local registration laws to target
individuals convicted of sex offenses in particular, this was by no means
the exclusive focus. From 1990 onward, however, public policy radically
changed when a handful of high-profile sexual assaults of children by exoffenders inspired legislative attention. In 1990, Washington State enacted
the nation’s first registration and community notification law, permitting
dissemination of identifying information on registrants to communities in
which registrants lived. In 1994, New Jersey’s rapid adoption of
registration and notification, in the wake of Megan Kanka’s sexual abuse
and murder by a convicted sex offender living nearby, fueled national
interest in the social control strategies. The laws quickly swept the nation,
with legislatures often adopting in verbatim form one another’s legislative
findings. These findings stated that the laws were needed to address the
radically heightened recidivism risks of ex-offenders that were targeted by
the laws.13
While registration had first been proposed in Congress in 1991, by
Senator David Durenberger (R-MN) in response to the 1989 disappearance
of eleven-year-old Jacob Wetterling in rural Minnesota, a federal
registration provision did not come to fruition until 1994. In that year, with
overwhelming bi-partisan political support, Congress enacted the Jacob
Wetterling Act,14 which directed states to register sex offenders and
offenders whose victims were children, and allowed (but did not require)
community notification. Congress backed its directive with a threat to
withhold ten percent of otherwise allocated federal funding if states did not

prior offenses reveal an added risk”).
11.
See LOGAN, supra note 6, at ch. 3.
12.
Id.
13.
See, e.g., Sex Offenders Registration Act, OKLA. STAT. tit. 57, § 581(B) (2004);
Sexual Offender Registration and Monitoring Act, TENN. CODE ANN. § 40-39-101 (1994),
repealed by Tennessee Sexual Offender and Violent Offender Registration, Verification,
and Tracking Act of 2004, TENN. CODE ANN. § 40-39-201 (2006).
14.
See Jacob Wetterling Crimes Against Children and Sexually Violent Offenders
Registration Act, Pub. L. No., 103-322, 108 Stat. 1796, 2038 (1994) (codified as amended at
42 U.S.C. § 14071 (2000)).

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adopt and implement registration and community notification laws.15
By November 1995, only four states and the District of Columbia had
failed to comply with the federal mandate. One of these states was
Massachusetts. In 1996, just before the 1997 date on which funding losses
were to occur, Massachusetts became the last state to enact a registration
law.16
Then, as now, federal law specified minimum requirements relative to
the types of ex-offenders to be registered, the duration and frequency of
registration, and such matters as the types of information to be collected
and maintained, and provided states latitude to adopt more ambitious
requirements.17
The states were slow to accept Congress’ invitation to implement
community notification regimes. As of 1996, only seventeen states allowed
for notification, either via public inspection or direct community
notification. That year, Congress adopted the federal Megan’s Law,18 and
mandated—did not merely allow—that notification occur, still under threat
of losing ten percent of federal criminal justice funding.
In 1996, Congress also enacted the Pam Lychner Act,19 the first step
toward a national registration system, allowing for the creation of a federal
database to facilitate the tracking of registrants by the FBI and local law
enforcement. In 1997, 1998, and 2000 Congress again imposed
registration-related requirements on states. In 2003, Congress passed the
PROTECT Act,20 which among other things required states to create and
maintain Internet sites for the release of registrants’ information.
For two years, an uncharacteristic lull occurred as Congress refrained
from law-making in the registration arena. In 2005, three separate bills
were introduced, each seeking to strengthen registration and notification in
various ways. Under the active leadership of Congressman Mark Foley (R15.
16.

42 U.S.C. §14071(g)(2)(A) (2000).
Doris Sue Wong, Weld Signs Bill Creating Sex-Offender Registry—Those
Convicted Have to Register, BOSTON GLOBE, Aug. 15, 1996, at B2.
17.
For discussion of this phase of the modern evolution of registration and
community notification, including federal guidelines providing for state discretion in their
content and operation, see Wayne A. Logan, A Study in “Actuarial Justice”: Sex Offender
Classification Practice and Procedure, 3 BUFF. CRIM. L. REV. 593, 598-602 (2000).
18.
Megan’s Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (amending 42 U.S.C. §
14071(d) (1994)).
19.
Pam Lychner Sexual Offender Tracking and Identification Act of 1995, Pub. L.
No. 104-236, 110 Stat. 3093-94, (codified as amended at 42 U.S.C. § 14072 (Supp. IV
1998)).
20.
Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today (PROTECT) Act of 2003, Pub. L. No. 108-21, sec. 401(d)(1), 117 Stat. 650, 688
(codified as amended at 42 U.S.C. § 14071(c)(2) (2003)).

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FL), what is now known as the Adam Walsh Act (AWA) eventually gained
approval. The expansive bill, eponymously named (as has become
common) after a child allegedly victimized by a sex offender,21 was signed
into law by President Bush in July 2006.22 Intending “to protect the public
from sex offenders and offenders against children . . . [and] establish[] a
comprehensive national system for the registration of those offenders,”23
the AWA contains a number of important changes so far as states are
concerned.
First, the AWA for the first time makes it a federal felony for individuals
to knowingly fail to register or verify their registration information when
they move from one state to another.24 Despite failing to make any express
legislative findings on the effect such failure might have on interstate
commerce, Congress invoked its Commerce Clause authority to federalize
registration violations, which heretofore have been state crimes. Nor, for
that matter, did the Congressional hearings provide much in the way of
support for the need for federal entry into the field, despite vague
references by legislators to “state loopholes” that allowed emigrant

21.
In 1981, six-year-old Adam Walsh was abducted from a shopping mall in
Hollywood, Florida. His father, John Walsh, subsequently became a nationally known
advocate for missing and abused children, and the host of the popular television show
America’s Most Wanted. While the boy’s remains were eventually found, in a canal some
one hundred miles from his home, the background and identity of his assailant remain
unknown, and even though his victimization has become synonymous with child sex abuse,
it is not known whether such abuse occurred. See Ron Ishoy, Adam Walsh Murder Case
Unsolved, But Tragedy Helped Change U.S. Laws, MIAMI HERALD, July 28, 1991, at 1A.
The same uncertainty surrounds the plight of eleven-year-old Jacob Wetterling, whose
disappearance in 1989 prompted registration and community notification legislation in
Minnesota and spurred initial federal involvement; his whereabouts remain unknown and no
suspect was ever apprehended. Wayne A. Logan, Jacob’s Legacy: Sex Offender
Registration and Community Notification Laws, Practice, and Procedure in Minnesota, 29
WM. MITCHELL L. REV. 1287, 1290-91 (2003).
22.
Adam Walsh Child Protection and Child Safety Act of 2006, Pub. L. No. 109-248,
120 Stat. 587 (2006). Under the terms of the AWA, the Wetterling Act and other federal
registration provisions will cease to be in effect either as of July 27, 2009, or one year after
the availability of computer software to be used by the states to implement the AWA,
whichever is later. See United States v. Kapp, 487 F. Supp. 2d 536, 539 n.4 (M.D. Pa. 2007)
(noting same).
23.
42 U.S.C. § 16901 (2006).
24.
18 U.S.C. § 2250(a)(2)-(3) (2006); see also United States v. Smith, 481 F. Supp.
2d 846, 849 (E.D. Mich. 2007) (quoting H.R. Rep. No. 109-218, at 36 (2005)) (noting that
AWA “created ‘a new Federal crime’ where ‘[s]ex offenders who fail to comply will face
felony criminal prosecution.’”). The Wetterling Act, while providing that registration
violations would subject individuals to any penalty provided under state law, did not itself
impose federal criminal liability upon violators. See Kapp, 487 F. Supp. 2d at 538 (noting
same).

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registrants to evade registration requirements.25
Prosecutions are now being pursued under the AWA in federal court. In
the first such prosecution, in the Middle District of Florida, Wilfredo
Madera, who moved from New York to Florida and failed to register there,
unsuccessfully challenged the AWA registration provision on several
bases, including the Commerce Clause.26 He faced ten years in prison and a
$250,000 fine,27 as opposed to the five years and $10,000 fine threatened
under Florida law.28
The question of congressional Commerce Clause authority to criminalize
registration violations will very likely come before the Supreme Court.
Defendants will justifiably point to United States v. Lopez,29 which
invalidated a federal law making it a crime to possess a gun near a school,
and United States v. Morrison,30 which struck down a federal provision
allowing victims of gender-motivated violent crime to sue in federal court.
They will argue that the federal failure-to-register provision, like the laws
in Lopez and Morrison, intrudes upon the historic police power authority of
states and lacks a necessary impact on interstate commerce (and, like the
law condemned in Lopez, fails to contain any express congressional
findings to this effect).
Likewise, defendants will argue that the AWA’s failure-to-register
provision is distinguishable from other federal criminal laws predicated on
interstate travel, which courts have deemed consistent with Commerce
Clause authority. In such instances, perpetrators use channels of interstate
commerce to facilitate the commission of crime, and federal law expressly
targets this intent.31 The AWA, however, does not require any such
intent—here an intent to evade the registration requirement; rather, an
individual need only travel to another state and knowingly fail to register.32
Cause for defense optimism, however, will be tempered by the Court’s
more recent decision in Gonzales v. Raich,33 which held that federal
criminal law trumped California’s effort to allow medicinal use of
25.
See, e.g., H.R. Rep. No. 109-218, at 23-4 (2005); 152 Cong. Rec. S8012, S801718 (daily ed. July 20, 2006) (statement of Sen. Allen), S8022 (statement of Sen. DeWine),
S8030-S8031 (statement of Sen. Frist); 151 Cong. Rec. H7887, H7889 (daily ed. Sept. 14,
2005) (statement of Rep. Green).
26.
United States v. Madera, 474 F. Supp. 2d 1257 (M.D. Fla. 2007).
27.
18 U.S.C. § 2250(a)(3) (2006).
28.
FLA. STAT. § 943.0435(9)(a) (2007).
29.
514 U.S. 549 (1995).
30.
529 U.S. 598 (2000).
31.
See, e.g., United States v. Ballinger, 395 F.3d 1218, 1227-28 (11th Cir. 2005) (en
banc) (upholding federal law criminalizing church arsons facilitated by interstate travel).
32.
See 18 U.S.C. § 2250(a)(3) (2006).
33.
545 U.S. 1 (2005).

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marijuana, even though it was grown and used solely in California. Suffice
it to say, the Court’s willingness to indulge federal authority, even when it
harms innocents seeking palliative care, does not bode well for unregistered
sex offenders. Moreover, unlike Raich, where several states urged the
Court to defer to California’s effort to self-regulate despite contrary federal
law, states here will not likely be heard to complain. Every state makes
failure to register a crime and federal involvement in tracking down and
prosecuting disdained sex offenders has obvious appeal.
Finally, as several lower federal courts have lately concluded,34 the
Court could well opt to uphold the federal provision by invoking Congress’
Commerce Clause authority based on an alternate rationale identified in
Lopez, which allows regulation of “persons or things in interstate
commerce.”35 Under this rationale, as one federal district court concluded,
Congress is empowered to “regulate those individuals or things that travel
in interstate commerce without regard to the reason for their movement.”36
The likely outcome, however, should not be permitted to obscure the
broader structural consequences of the AWA. Judicial approval of the
failure-to-register law will signal an important shift in what the Lopez
Court called the “sensitive relation between federal and state criminal
jurisdiction.”37 Registration compliance has been and remains the primary
responsibility of states. Although the U.S. cannot be realistically expected
to assume prime responsibility in the area, enforcement efforts by U.S.
Marshalls and Attorneys send the opposite message: the federal
government will save the day. Nor, finally, can the federalization of
registration failures be justified by the two chief policy concerns often
advanced in support of federal involvement: externalities and interjurisdictional challenges. Unlike with firearms and illegal narcotics, for
instance, no evidence exists of state registration laxness contributing to
spillover harms in other states.38 Likewise, interstate travel creates no

34.
See, e.g., United States v. Mason, 2007 WL 1521515 (M.D. Fla. 2007); United
States v. Muzio, 2007 WL 1629836 (E.D. Mo. 2007); United States v. Hinen, 2007 WL
1447853 (W.D. Va. 2007).
35.
See Lopez, 514 U.S. at 558-59 (identifying categories of regulatory authority over:
(1) “the use of channels of interstate commerce”; (2) “the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may come
only from intrastate activities”; and (3) “those activities that substantially affect interstate
commerce”).
36.
Mason, 2007 WL 1521515 at *7.
37.
Lopez, 514 U.S. at 561 n.3 (quoting United States v. Bass, 404 U.S. 336, 349
(1971)).
38.
See Michael M. O’Hear, National Uniformity/Local Uniformity: Reconsidering
the Use of Departures to Reduce Federal-State Sentencing Disparities, 87 IOWA L. REV.
721, 751-52 (2002).

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enforcement barriers, such as those which prompted prior federal efforts to
criminalize “deadbeat dads” whose travel confounded effective state-level
prosecutions.39 Persons such as Mr. Madera can be and traditionally have
been held accountable by state prosecutors under state law.40
Frustration over how to handle emigrant sex offenders affords a highly
compelling catalyst for increased federal involvement in criminal justice.
Given the potent political appeal of law-making in the area, we can expect
more from Congress in the coming years.41 However, this patent intrusion
on the historically state-centric domain of criminal justice should raise
concern.
A second chief feature of the AWA concerns its registrant classification
system. Whereas in the past Congress took no position on the question of
whether registration-eligible individuals should be distinguished from one
another, except relative to “sexual predator” status, the AWA prescribes a
three-tier classification system.42 The tiers correspond to the severity of the
individual’s prior offense supporting conviction, with tier III including (1)
persons convicted of state offenses punishable by imprisonment for more
than one year, and comparable to, or more severe than, a list of specified
aggravated sexual offenses, or (2) recidivist tier II registrants.43 The tiers
determine the time intervals at which registration information must be
verified and the duration of registration itself.44 The tiers do not, unlike
regimes in roughly fifteen states (including Massachusetts), reflect
individualized assessments of risk or level of current dangerousness, on
which notification eligibility and the extent of notification turn. Under the
“offense-based” approach of the AWA, all persons required to register are
subject to community notification (via the Internet, at a minimum).45
39.
Child Support Recovery Act of 1992, Pub. L. No. 102-521, 106 Stat. 3403 (1992)
(codified as amended at 18 U.S.C. § 228 (2000)).
40.
Cf. Jones v. United States, 529 U.S. 848, 859 (2000) (Stevens, J., concurring)
(“The fact that petitioner received a sentence of 35 years in prison when the maximum
penalty for the comparable state offense was only 10 years, illustrates how a criminal law
like this may effectively displace a policy choice made by the State.” (citation omitted)).
41.
Notably, section 2250 did not constitute the first federal interest in interstate
movement of sex offenders. In 1960, Representative John A. Lafore, Jr. (R-Pa.) introduced a
bill “[t]o provide that known sex offenders who travel in interstate commerce shall register
as prescribed by the Attorney General.” H.R. 11652, 86th Cong. (1960). If an eligible
individual did not register within seven days of “entry into any federal district,” the
individual faced a $1000 fine, a year in prison, or both. Id. The bill was sent to the House
Judiciary Committee, where it saw no further action. Forty-six years later, a strikingly
similar provision (§ 2250) won overwhelming endorsement in Congress.
42.
42 U.S.C.A. § 16911 (West 2006).
43.
Id. § 16911(4).
44.
Id. § 16915.
45.
See id. § 16918 (“[E]ach jurisdiction shall make available on the Internet . . . all

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To an extent, this effort by Congress should be taken as a welcome
development. To be sure, its new effort to classify is predicated on a single,
static factor, prior offense seriousness, and thus risks vast overinclusiveness compared to the “offender-based” approaches of
Massachusetts and other states. In ordaining this approach, Congress
presumably felt that the seriousness of the prior offense, in itself, is
predictive of recidivism, a probabilistic inference plainly subject to
dispute.46 However, the AWA’s attempt at differentiation, while modest, is
positive inasmuch as it shows some reservation over the prevailing onesize-fits-all approach of sex offender policy.
Moreover, for the first time, Congress has recognized the need to study
the question of how best to effectuate registration and notification,
requiring, inter alia, that in the coming months the U.S. Attorney General
produce a study of the “efficiency and effectiveness” of risk versus offensebased regimes.47
Inherent in the AWA, however, is another federalism-based difficulty. In
addition to prescribing standards and requirements that conflict with state
laws in many respects, for instance subjecting certain adjudicated juveniles
to registration and notification, imposing a short three-day window to
register, and requiring in-person registration verification, the AWA
mandates that states employ its offense-based, tier approach. The majority
of states using an undifferentiated offense-based approach will need to
enact more refined laws that draw distinctions consistent with the AWA, if
information about each sex offender in the registry.”).
46.
If this were so, persons convicted of murder would recidivate at higher rates than
persons convicted of other less serious crimes. This, however, is plainly not the case. See
ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 30 (1998). More to the point, it is
well-established that “sex offenders” are not only not an undifferentiated mass when it
comes to recidivism, but also that persons convicted of most serious sex offenses do not
recidivate at higher rates than those convicted of less serious offenses. See Lisa L. Sample &
Timothy M. Bray, Are Sex Offenders Different? An Examination of Re-Arrest Patterns, 17
CRIM. JUST. POL’Y REV. 83 (2006). This is not to say of course that such offenders never
subsequently commit an identical (or equally serious) sexual offense. Congress might well
endorse a position of zero tolerance with respect to such offenders, no matter how low the
risk; it is not apparent, however, that this is what drives the AWA’s classification scheme.
Cf. Eric S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment with Sex
Offenders: Accuracy, Admissibility and Accountability, 40 AM. CRIM. L. REV. 1443, 144849 (2003) (“[R]isk entails not only the presence of danger but also its probability of
occurrence.”).
47.
42 U.S.C.S. § 16991 (LexisNexis 2007). The AWA also directs that the National
Institute of Justice assess the new law’s effectiveness in (1) increasing compliance with
registration and notification requirements, (2) enhancing public safety; and (3) optimizing
public dissemination of registrants’ information on the Internet. Id. § 16990(a)-(b). Further,
it requires assessment of associated “costs and burdens” and recommendations for
increasing the effectiveness of registration. Id.

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they wish to preserve eligibility for their allotted federal criminal justice
funding.48 So, too, will the several states that employ risk-based schemes
based on individualized evaluation (again, including Massachusetts) need
to make changes.49
In mandating the comprehensive standards contained in the AWA,
Congress did, to its credit, manifest awareness of the sensitive federalism
issue at hand. The AWA expressly provides that a state need not adopt the
offense-based approach, or any aspect of the AWA, if doing so “would
place the jurisdiction in violation of its constitution, as determined by a
ruling of the jurisdiction’s highest court.”50 If such a constitutional conflict
does exist, the AWA provides that “the Attorney General and the
jurisdiction shall make good faith efforts to accomplish substantial
implementation” of the law and to “reconcile any conflicts” between the
AWA and the jurisdiction’s constitution.51
Sensitivity and deference to states’ rights and traditions, however, only
go so far under the AWA. No respect, for instance, is paid to state
legislative determinations as to whether a risk-based individualized
approach is warranted as a policy matter. Only a constitutionally
commanded position, backed by a holding from the state’s highest court
(and seemingly not even a lowly intermediate appellate court), will suffice.
48.
The AWA’s specific language on the funding question warrants emphasis: “The
provisions of this subchapter that are cast as directions to jurisdictions or their officials
constitute, in relation to States, only conditions required to avoid the reduction of Federal
funding under this section.” Id. § 16925(d). Congressional reference to “conditions,” as
opposed to demands or requirements, signals sensitivity to the dicey federalism issue at
play. Id. By characterizing the new standards in such a way, Congress nominally invoked its
Spending Clause authority, buttressing its ability to defend against a potential Tenth
Amendment commandeering challenge. Cf. New York v. United States, 505 U.S. 144, 17172 (1992).
49.
The timing of such changes remains in question. The AWA itself prescribes that
states have three years from the law’s date of enactment, July 26, 2006, to conform their
laws to the AWA. See 42 U.S.C.S. § 16924(a)(1) (LexisNexis 2007). The proposed
Guidelines, critically important for the detail and guidance they provide on the complex
structure entailed in the AWA, however, were not issued by the Attorney General until midMay 2007. See U.S. DEP’T OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL, THE NATIONAL
GUIDELINES FOR SEX OFFENDER REGISTRATION AND NOTIFICATION (May 2007),
http://www.ojp.usdoj.gov/smart/guidelines.htm [hereinafter Guidelines]. Presumably, at a
minimum, in light of this tardiness the Department of Justice will be obliged to invoke the
AWA’s discretionary one-year grace period. See 42 U.S.C. § 16924(b) (2006).
50.
Id. § 16925(b)(1).
51.
Id. § 16925(b)(2). The AWA Guidelines afford some apparent wiggle room for
the Department’s assessment of “substantial compliance,” stating that the standard
“contemplates that there is some latitude to approve a jurisdiction’s implementation efforts,
even if they do not exactly follow in all respects the specifications” of the AWA and the
Guidelines. Guidelines, supra note 49, at 10.

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So, here in Massachusetts, some interesting times lie ahead. As you are
well aware, the judiciary has been intensely involved in the nature and
application of the Commonwealth’s registration and notification laws, with
the Declaration of Rights playing a central role in the still evolving
jurisprudence.
Under the terms of the AWA, the U.S. will have to “consult” with
Massachusetts concerning the interpretation of its own constitution. The
proposed Guidelines for the AWA, belatedly released in mid-May 2007,
some ten months after the AWA was enacted, promise that the U.S. will
“work with the jurisdiction to see whether the problem can be
overcome”52—surely an unceremonious way to refer to a state-based
constitutional right. If a jurisdiction fails to “substantially implement” the
AWA in the absence of a legitimate “demonstrated inability to implement”
based on domestic constitutional dictate, or otherwise cannot satisfy the
U.S. with an accommodation, it will lose its federal funding. Adding insult
to injury, the share lost by a jurisdiction will be reallocated to other states
that lack such domestic constitutional strictures.
The classification question looms as perhaps the key issue in the years to
come. Just as states have begun to reign in the ever expanding scope of
registration eligibility—albeit ever so slightly, such as eschewing
registration for juvenile consensual sexual encounters—so too are they
beginning to express some unease over the use of purely conviction-based
registration and notification laws.
As noted, the AWA reflects an understanding of the need to
distinguish. It does not go so far, though, as to expressly tie tiers to risk of
re-offense and thereby determine the nature and extent of community
notification. I suspect that Congress recognized that doing so would quite
possibly trigger procedural due process concerns, which are absent in
purely conviction-based regimes, in which states refrain from imputing
specific risk to offenders, such as the regime upheld in 2003 by the U.S.
Supreme Court in Connecticut Dep’t of Public Safety v. Doe.53
Needless to say, this omission is of scant practical importance, given that
the entire enterprise of notification is predicated on the professed need to
warn communities of risky individuals in their midst. Individuals subject to
community notification, apriori, are thought worthy of criminal recidivist
concern, even if the state disclaims or omits any specific designation of
current dangerousness.
Nevertheless, the approach does benefit from a certain informationbased consumerist liberality. Community members, the thinking goes, are
merely being provided otherwise publicly available information that they
52.
53.

See Guidelines, supra note 49, at 10 (emphasis added).
538 U.S. 1 (2003).

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can use to assess whether registrants warrant concern, and the safety
precautions they should undertake.
Moreover, an offense-based registration system, on its face at least,
has resource benefits. While its wide application surely has enhanced
human costs, for registrants,54 it plausibly affords what might be seen as
front-end savings. A jurisdiction need not expend the resources necessary
to evaluate individual risk, as occurs here in Massachusetts. This apparent
savings, however, is illusory, for several reasons.
First, when information on registrants is made available, without
reference to individual risk, as the AWA mandates and now occurs in most
states, a saturation effect can occur, which can be detrimental to
community members. As the Supreme Court observed in an unrelated
context, “when everything is classified, then nothing is classified, and the
system becomes one to be disregarded by the cynical or the careless.”55
Second, over-broad notification might enhance the prospects of
recidivism among otherwise law-abiding ex-offenders. While researchers
have not yet provided conclusive evidence of the anti-therapeutic effects of
community notification, a considerable body of evidence highlights that
notification negatively affects various lifestyle considerations shown to
lessen the chances of recidivism (e.g., employment, steady residence, and
As the North Dakota registry web site
social relationships).56
acknowledges in explaining why all registrants are not listed, the “public
notification on other offenders may have the unintended consequence of
making them more risky.”57
Third, ironically, offense-based schemes can actually afford less public
protection coverage in another sense. With plea bargains the norm in
criminal courts, if a conviction-based scheme is used, and the daunting
specter of registration and notification looms, an offender has a strong
incentive to avoid being tagged. A case-by-case clinical assessment can
limit this incentive. It can also potentially afford registrants with a sense of
procedural justice, allowing them a process to defend against what they
might perceive to be an unjustified and unwarranted intrusion into their
54.
For discussion of the range of such manifold negative effects see Wayne A.
Logan, Federal Habeas in the Information Age, 85 MINN. L. REV. 147, 182-207 (2000).
55.
N.Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J.,
concurring). See also In re Registrant E.I., 693 A.2d 505, 508 (N.J. Super. Ct. App. Div.
1997) (“[I]f Megan’s Law is applied literally and mechanically to virtually all sexual
offenders, the beneficial purpose of this law will be impeded.”).
56.
See Wayne A. Logan, Sex Offender Registration and Community Notification:
Emerging Legal and Research Issues, in SEXUALLY COERCIVE BEHAVIOR: UNDERSTANDING
AND MANAGEMENT 337, 343-44 (N.Y. Academy of Sciences, 2003).
57.
See North Dakota Sex Offender Registry, http://www.sexoffender.nd.gov/
FAQ/faq.shtml (last visited Oct. 2, 2007).

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lives.58
Despite ultimately coming down on the wrong side of things by
advocating an offense-based regime, Congress’s avowed desire to assess
the merits of the respective approaches is a very welcome development.
One of the most striking features of the nation’s modern rush to embrace
registration and notification is the utter disregard of empiricism. One would
be hard-pressed to identify a public enterprise of similar national scope
effectuated in utter disregard for its efficacy or impact.59 Yet at the same
time, registration and notification laws have blanketed the nation precisely
because of the perception, repeatedly parroted in legislative findings
supporting the laws, that sex offenders recidivate at a far greater rate than
other sub-populations.
While we now know this to be untrue,60 as we did in the 1950s,61 the
laws still benefit from a patina of rationalism, significantly contributing to
their popularity. This same visceral, unempirical response is seen in the
wave of residence restriction laws, often tied to registration eligibility, now
sweeping the nation.62
At last, more than a decade since registration and community
notification seized the nation’s attention, policy makers are showing
sensitivity to the desirability of evaluating registration and community
notification laws.63 In addition to Congress, the New Jersey Legislature,
where Megan’s Law originated,64 has now directed that empirical analysis
58.
See Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due
Process and Sex Offender Community Notification Laws, 89 J. CRIM. L. & CRIMINOLOGY
1167, 1211-12 (1999).
59.
For an overview of the numerous data-related needs see LOGAN, supra, note 56, at
342-45.
60.
See, e.g., Center for Sex Offender Management, Recidivism of Sex Offenders
(2001), http:/www.csom/org/pubs/recidsexof.pdf (citing and discussing studies showing
lower recidivism rates of sex offenders compared to other offender sub-populations).
61.
See, e.g., PAUL H. TAPPAN, THE HABITUAL SEX OFFENDER: REPORT AND
RECOMMENDATIONS OF THE COMMISSION ON THE HABITUAL SEX OFFENDER, NEW JERSEY
STATE LEGISLATURE 14 (1950).
62.
See Wayne A. Logan, Constitutional Collectivism and Ex-Offender Residence
Exclusion Laws, 92 IOWA L. REV. 1, 6-8 (2006).
63.
Such an enact first, question later proclivity is of course not unknown to criminal
justice policy, especially at the federal level. For discussion of the proclivity in the context
of federal drug policy, in particular, see David A. Sklansky, Cocaine, Race, and Equal
Protection, 47 STAN. L. REV. 1283, 1294 n.55 (1995).
64.
While often incorrectly characterized as the modern day origin of registration and
community notification (as noted earlier Washington State enjoys this mantle), New
Jersey’s Megan’s Law, the namesake of the second iteration of federal law, has become
synonymous with sex offender registration and community notification. In actuality,
however, the Garden State’s registration and notification laws were and remain among the

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be undertaken.65 There is now hope that a critical mass of empirical work
will finally take shape, allowing for the possibility of better informed
policy judgments.
The foregoing developments give reason to be sanguine that we are
nearing a point when the value of registration and notification will no
longer be accepted as an article of faith. As befitting a public policy of their
nationwide scope—with substantial financial and human consequences—
registration and notification will be scrutinized, and despite the
unavoidable emotion and pathos sex offenders engender, rational,
evidence-based policy decisions hopefully will surface in the coming years.
It might be that the unavoidable imperfections of registration and
notification will doom the regimes to failure. There is indeed something
odd, after all, about a system that depends on convicted criminals—who
have demonstrated their inability or unwillingness to observe the law—to
step up and be responsible citizens and provide accurate information on
themselves, so that their lives can in turn be made more difficult.
Indeed, each recidivist sex crime by a registrant—whether compliant
with registration requirements or not—will understandably shake public
confidence in the laws. The public may well be satisfied that something is
being done—that some social control on the cheap is better than none at all.
After all, registration and notification, even if optimally executed with all
the expense that it would entail, still represent less costly alternative than
extended prison terms. In the meantime, however, if registration and
community notification are to endure, and the political landscape likely
makes this the case, efforts to empirically assess how the laws are
undertaken are absolutely necessary—for law enforcement, ex-offenders,
and us all.

most conservative and limited of all enacted by the nation’s state legislatures.
65.
Sam Wood, New Jersey Study Scrutinizes Megan’s Law, PHIL. INQUIRER, May 7,
2007, available at http://www.philly.com/inquirer/local/20070506_Study_in_N_J__
scrutinizes_Megans_Law.html.