YES
Bruce Fein
From Bruce Fein, "Community Self-Defense Laws Are Constitutionally Sound," ABA Journal (March 1995). Copyright, 1995 by The American Bar Association. Reprinted by permission of ABA Journal.
COMMUNITY SELF-DEFENSE LAWS ARE CONSTITUTIONALLY SOUND
Last July 29, 7-year-old Megan Kanka was sexually assaulted and murdered in a New Jersey township. Her neighbor, a twice-convicted sex offender, has been charged with the crime. More in sorrow than in anger, the New Jersey Legislature enacted Megan's Law to memorialize the girl's death and to reduce the likelihood of a tragic reprise.
Megan's Law requires government notice to communities of resident sex offenders believed by prosecutors to possess a high risk of recidivism. The offenses that require notice include sexual assault, engaging in conduct that would impair or debauch the morals of a child, and luring or enticing a minor. Risk factors include criminal history, victimizing a minor outside the offender's family circle, and using physical force or violence in the crime.
The community receives the offender's name, address, offense,place of employment or schooling, and license plate number, along with a recent photo and a physical description. The community is also admonished against vigilantism and is warned that crimes against the offender, the offender's family, employer or school will be unfailingly prosecuted. Indeed, New Jersey authorities recently arrested two men accused of vigilantism, pledged aggressive prosecutions and publicly condemned the barbarism.
The laudatory objective of Megan's Law is community self-defense, and the law is constitutionally irreproachable. Critics of such laws ignore the warning of Supreme Court Justice Robert Jackson in Terminiello v. Chicago, 337 U.S. 1 (1949), that doctrinaire logic must be tempered with a little practical wisdom to avoid converting "the constitutional Bill of Rights into a suicide pact."
Notice does not inflict "punishment" in the constitutional sense. The offender may be stigmatized within the community, but loss of reputation does not impair constitutionally protected liberty.
The Court explained this in Paul v. Davis, 424 U.S. 693 (1976), in which it found unobjectionable police distribution of fliers to merchants providing names and photos of recent arrestees believed to be "active shoplifters." Similarly, the FBI's "10 Most Wanted" list of criminal suspects is constitutionally unworrisome despite the stigma attached.
Neither does community notice violate a constitutional right of privacy. The Court in Paul lectured that government may publicize records of official acts, including convictions, so long as the person's freedom of action remains unrestricted. And the more comprehensive notice under Megan's Law responds to the wider opportunities for sex offenders to repeat their crimes.
Community notice imposes no government disability on the sex offender. If community members ostracize the criminal, that reflects a private choice uncoerced by government action. Government, of course, has no business exposing a private life for the sole sake of exposure, a hard-learned lesson of Sen. Joseph McCarthy's communist witchhunts. But government interest in arming communities with information that might curtail sexual offenses is compelling both because the crimes are especially heinous and because of concern about rates of recidivism.
Megan's Law is no panacea: its impact on the incidence of crime may prove marginal. But marginal improvement is welcome when little else is working. And critics should pause before unleashing their constitutional attacks. If community notice is scuttled, the political backlash will probably lengthen prison terms for sex offenders with no possibility of parole, thus deflating any litigation success to a Pyrrhic victory.