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Does extending Megan’s Law raise ex post facto challenge?
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

“… whose margin fades
For ever and for ever when I move.”
— Alfred, Lord Tennyson, “Ulysses”


When Megan’s Law was enacted in New York state in 1995, it established three risk categories for sex offenders: low, medium and high. The original enactment required 10 years on the registry for low-risk offenders, 10 years for medium-risk, and lifetime for highest-risk offenders.
Nationwide, one of the main constitutional challenges to these statutes was that they were ex post facto in nature, adding a punishment that did not exist at the time the crime was committed, U.S. Const., Art. 1, § 10. In a case that reached the Supreme Court, Connecticut Department of Public Safety v. Doe, 538 US 1 (2003), both the trial and circuit court had invalidated the state’s Megan’s Law on ex post facto grounds.


In reversing, the Supreme Court found no constitutional violation: the statute was regulatory in nature, intended to protect the public rather than punish the former offender. The statute was deemed to be civil, while ex post facto prohibitions are directed at criminal statutes, see Doe v. Pataki, 120 F3d 1263 (2d Cir. 1997).


Megan’s Law continued in New York for a decade, until the time approached for the removal of initial Level 1 and 2 registrants. With that looming, the State Legislature in 2006 extended Megan’s Law: Rather than the 10 years for Level 1 and 2 offenders, the law was changed to 20 years for some and lifetime for others; and level 3 offenders stayed the same, in the main.


Over the years, there have been other amendments to Megan’s Law: creation of “designation” categories; the ability to petition for relief; requirement of photographs; Internet availability of the subdirectory; the role of the people and sentencing court in SORA proceedings; and penalties for failing to report, see People v. Parilla, 109 AD3d 20 (1st Dept. 2013), fn. 2.


As a result of these amendments, a second ex post facto challenge arose: The amendments included those offenders who had previously understood the time limit to be the lower time frames, along with the other regimen. Were these amendments, individually or collectively, ex post facto? Second, while the original time frame was found not to be punitive, was the longer period punitive?
And, perhaps an academic question: Would the courts that originally upheld these laws as constitutional have done so, had they known that the registration period would be double or greater?


Thus far, the constitutionality of the extension and other amendments to New York’s law has been upheld. In People v. Parilla, 109 AD3d 20 (1st Dept. 2013), the First Department found no violation of the federal ex post facto clause. The decision concluded that the amendments “were aimed at improving the strength, efficiency and effectiveness of SORA as a civil statute, not at punishing sex offenders, and are not so punitive in effect as to negate the legislature’s intent.” A state and federal double jeopardy challenge was rejected as well.


Some courts in other jurisdictions have agreed with Parilla, upholding the extensions to Megan’s Law, while other courts have invalidated the extensions, or found them to not be retroactive, see, e.g., Doe v. Nebraska, 898 F Supp 2d 1086 (D Neb. 2012); Starkey v. Oklahoma Dept. of Corrections, 305 P3d 1004 (Okla. 2013), see Annot., 63 ALR3d 351.


© 2014 by Gary Muldoon