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June 16, 2019

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

June 16, 2019 at 11:53 PM | Permalink


What happens if these laws have the unintended consequence of radicalizing all former sex offenders into organizing themselves into radical self-defense groups like the Black Panthers, et al. into engaging in confrontations with law enforcement as a way of pushing back against these laws? Do the politicians who enact such laws really want to needlessly put their law enforcement personnel to extra risks in a job that already carries high risk for officers?

Posted by: William R. Delzell | Jun 17, 2019 9:31:25 AM

The flaw in Alaska Sexual Offender Registration Act (ASORA) identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with face to face opportunity with a local tribunal ( neighborhood in which he lives and works). The same goes for other states especially Texas with the highest incarceration. The Judicial System does not treat people equally and desperately needs reforming.

Posted by: LC in Texas | Jun 17, 2019 12:26:32 PM

Sorry but just having a hearing does nothing as long as the burden or proof is on the individual. Sorry but in a case between the state and a citizen..mthe burgen of proof should always fall on the state and since no matter they call em these are Criminal punishments so that burden should be beyobd a reasonable doubt.

After all jyst how the hell is he supposed to prove he ISN'T dangerous. Sorry but if they think he is carry their chicken asses into a court and prove it and i an talking a real court not those special sex offender courts.

Posted by: Rodsmith | Jun 22, 2019 2:58:18 AM

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