State Ex Rel. Olivieri v. StateState Ex Rel. Olivieri v. State
These two consolidated criminal cases raise the issue of whether the State may require sex offenders (either probationers or those released from incarceration on parole) to comply with notification provisions the Legislature enacted after they committed their offenses.1 We granted these writ applications because there is a conflict among our courts of appeal on this issue and this Court has never addressed the question of whether retroactive application of these statutes, commonly referred to as Louisiana‘s Megan‘s Law,2 violates the ex post facto clauses of
FACTS AND PROCEDURAL HISTORY
On May 9, 1990, William Olivieri (“Olivieri“) pleaded guilty in Jefferson Parish to forcible rape of a woman who was thirty-six years of age, a violation of
On June 4, 1996, Marvin Hutchinson (“Hutchinson“) pleaded guilty in St. Bernard Parish to oral sexual battery of a juvenile, a violation of
LOUISIANA‘S SEX OFFENDER REGISTRATION & NOTIFICATION STATUTES
Louisiana‘s Megan‘s Law is encompassed in three interrelated statutory provisions,
means conviction for the perpetration or attempted perpetration of any provision of R.S. 14:92(A)(7), of Subpart C of Part II, Subpart B of Par IV, or Subpart A(1) or A(4) of Part V, of Chapter 1 of Title 14 of the. Louisiana Revised Statutes of 1950, committed on or after June 18, 1992, or committed prior to June 18, 1992 if the person, as a result of the offense, is under the custody of the Department of Public Safety and Corrections on or after June 18, 1992. A conviction for any offense provided in this definition includes a conviction for the offense under the laws of another state which is equivalent to an offense provided for in this Chapter.
Defendants who plead guilty, convicted after trial, and defendants released from confinement: LA.REV.STAT. ANN. § 15:542
First,
Defendants placed on probation: LA. CODE CRIM. PROC. ANN. art. 895(H)
Second,
Parolees: LA.REV.STAT. ANN. § 15:574.4(H)(2)
Finally,
LOUISIANA‘S INTERPRETATION OF MEGAN‘S LAW
Louisiana‘s appellate courts have split on the issue of whether courts and penal authorities may enforce these statutes retroactively. First, Louisiana‘s appellate courts, without much elaboration, have disapproved of retroactive aрplication of
On the other hand, Louisiana‘s appellate courts have split on whether the notice provisions of
In stark contrast, the appellate courts unanimously agree that
EX POST FACTO JURISPRUDENCE
Both Olivieri and Hutchinson contend that application of Louisiana‘s Megan‘s Law to their particular cases violates the ex post facto provisions of both the United States and Louisiana Constitutions.
In State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, 1201 and State v. Loyd, 96-1805 (La.2/13/97), 689 So.2d 1321, 1326, this Court recognized that Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) overruled Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), concluding that those cases “which had broadened the scope of the definition of an ex post facto lаw, were not `consistent with the term “ex post facto” at the time the Constitution was adopted.‘” Collins, 497 U.S. at 47, 110 S.Ct. 2715.
Federal Ex Post Facto
In Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court recognized two purposes which form the basis for the prohibition against ex post facto legislation. First, the prohibition assures “that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Id. Secondly, it “restricts government power by restraining arbitrary and potentially vindictive legislation.” Id.; see also Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
Prior to the United States Supreme Court‘s decision in Collins, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), the Court had provided that a change which injuriously affects a substantial right to which the accused was entitled at the time of his offense is an ex post facto violation if applied retroactively. See Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925) (holding that the former law afforded jointly indicted defendants separate trials as a matter of right, but the new law only afforded separate trials subject to the trial judge‘s discretion; held, no ex post facto violation because the law did not affect a substantial right of the accused); Kring, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) (holding that a law in effect at the time of the offense provided that on a charge of first-degree murder a guilty plea of second-degree murder acquitted the defendant of first-degree murder even if the plea was later set aside; a law passed after the offense was committed provided that if plea to second-degree murder is set aside, defendant may be tried for first-degree murder; held, the ex post facto change deprived the defendant of a substantial right).
In 1990, the United States Supreme Court held in Collins that the retroactive application of a statute allowing the appellate courts to reform an unauthorized verdict without remanding the case for a new trial was not violative of the ex post facto clause. At that time, the Court overruled Kring, supra, and Thompson, 170 U.S. at 351, 18 S.Ct. 620 (1898) (a case which held
After the Collins decision, a statute which involves the first three Calder categories passes ex post facto examination if it:
[D]oes not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime any defense available according to law at the time the act was committed.
In California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Supreme Court followed Collins, and further explained:
Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). But that language was unnecessary to the results of those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). After Collins, the focus of the ex post facto inquiry is not whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner‘s “opportunity to takе advantage of provisions for early release,“... but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.
Morales, 514 U.S. at 506, 115 S.Ct. 1597.
This review clearly indicates that the Collins/Morales line of jurisprudence established a return to Calder and shows that the operative factor in determining whether a law falls within the ambit of the ex post facto clause is whether the law can be considered “punishment” or altered the definition of criminal conduct. See also Carmell v. Texas, 529 U.S. at 522 (holding that it was a mistake in Kring and Thompson to stray beyond Calder‘s four categories).
Louisiana‘s Ex Post Facto Law
Traditionally, Louisiana jurisprudence has addressed this issue by making a determination of whether a law passed after the commission of an offense which in relation to that offense or its punishment altered the situation of a party to his disadvantage. Under such an inquiry, suspect legislation qualified as an ex post facto law if: (1) it was passed after the date of the offense; (2) it related to the offense or its punishment; and (3) the legislation altered the situation of the accused to his disadvantage.
After viewing this jurisprudence, it is clear that in ex post facto analysis Louisiana courts have broadly focused on whether a law has disadvantaged an accused rather than determining the narrower question of “whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.” Collins, 497 U.S. at 41, 110 S.Ct. 2715. We must now determine whether the recent United States Supreme Court decisions which have narrowed the protection offered in the ex post facto clause should likewise be applicable to the interpretation of Louisiana‘s ex post facto clause.
It has long been this State‘s tradition for Louisiana courts to look to federal case law for guidance in instances where our laws are pattеrned after or based upon federal law. See King v. Phelps Dunbar, L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181, 187.22 In the case sub judice, it is clear that not only is our constitutional prohibition against the enactment of ex post facto laws patterned after the United States constitution, our enactment is mandated by
Olivieri and Hutchinson point out that the notification requirements of Louisiana‘s Megan‘s Law contain provisions found in no other state and are made applicable to all sex offenders. They argue that the notification process places financial burdens on them, that the law is too broadly drawn as to which sex offenders are subjected to the law,24 that failure to notify as provided by statute makes them susceptible to punishment, and that the “scarlet letter” provisions are punitive. In addition, Hutchinson contends that retroactive application of the notification provisions denies him equal protection of the law. At the heart of our discussion of these issues is the determination of whether informing the public that a sex offender is living or working in the community constitutes punishment; if that question is answered negatively, there can be no ex post facto violation. See W.P. v. Poritz, 931 F.Supp. 1199, 1211 (D.N.J.1996), reversed and remanded sub nom. E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). The State counters by urging that Louisiana‘s Megan‘s Law was enacted with the paramount governmental interest of protecting the public from sex offenders. In that spirit, the State contends that these convicted felons, either released on probation or parole, were simply released subject to the public notification conditions provided by Louisiana‘s Megan‘s Law in effect at the time of their release. As such, the State argues that the ex post facto principle was not violated.
Although the decisions enunciated in Morales and Collins have shed light on the breadth of ex post facto protection, a majority of the courts who have considered the retroactive application of sex offender statutes have adopted a multi-faceted inquiry which basically consists of four prongs which examine: (1) the legislative intent, (2) the design of the statute, (3) whether the requirements contained in the statute have been historically considered “punishment,” and (4) the effects of the statute. See Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y.1996), affirmed in part, reversed in part, 120 F.3d 1263 (2d Cir. 1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998); see also Artway v. Attorney General, 81 F.3d 1235 (3d Cir.1996); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997); cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998); Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997), cert. denied sub nom. Stearns v. Gregoire, 523 U.S. 1007, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000).
In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), a relatively recent case involving a civil commitment statute involving sexual predators, the Court developed a test to determine whether thе consequence or burden of a statute constitutes “punishment” for purposes of ex post facto analysis. In Hendricks, the Court was faced with a Kansas statute which required an involuntary commitment procedure for sexually violent predators; at the heart of the statute was the provision that commitment was predicated, in part, upon the individual‘s prior conviction for crimes of sexual violence. The Court first focused on the legislative intent behind the enactment of the statute and then carefully examined the actual effects of the legislation on the individual affected. Following an intent/effects test, the Court determined that the legislation did not violate the ex
A. The legislature finds that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest. The legislature further finds that locаl law enforcement officers’ efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the agency‘s jurisdiction, and the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Restrictive confidentiality and liability laws governing the release of information about sex offenders have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public‘s interest in public safety and in the effective operation of government. Release of information about sex offenders to public agencies, and under limited circumstances tо the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
B. Therefore, this state‘s policy is to assist local law enforcement agencies’ efforts to protect their communities by requiring sex offenders, to register with local law enforcement agencies and to require the exchange of relevant information about sex offenders to members of the general public.
Before addressing the expressed legislative intent, we must first examine the defendants’ contention that the legislative findings and the purpose set out in
Although we agree with the observation of Olivieri and Hutchinson, we do not find that the legislative pronouncement of findings and purpose was in any way diminished. Even though mandatory neighborhood, school, and publication procedures were initially only included in
A careful review of the subjective intent enunciated in
Nevertheless, Olivieri and Hutchinson contend that the objective purpose of the legislature is belied by an analysis of the various effects of the legislation which reveal a punitive intent.
Making law applicable to all sex offenders. Initially, Olivieri and Hutchinson emphasize that Louisiana‘s Megan‘s Law applies to all sex offenders defined in
Our review of Louisiana‘s Megan‘s Law shows only the following exception to its community notification provisions.
Although we might acknowledge the wisdom of other states’ efforts to fine tuner community notification to those sex offenders most likely to be repeat offenders, we cannot say that this factor alone interdicts Louisiana‘s notification provision. The plenary power of the Legislature, in exercising the police power of the state,29 to make all laws necessary and
Harshness of provisions. Olivieri and Hutchinson argue that the community notification requirement and the other notice which may be required, i.e., signs, handbills, bumper stickers, or labeled clothing, make the notification provisions a second form of punishment.30
It cannot be gainsaid that although Louisiana‘s Megan‘s Law intends to provide communities with information about potentially dangerous sex offenders, it may be that such notification causes the sex offender humiliаtion. At least one court referenced American history as an example that criminals were punished through the use of public humiliation, i.e., requiring criminals to stand in public with signs to notify the public of their offense. See Russell, 124 F.3d 1079, 1091-92; see also Poritz, 931 F.Supp. at 1216-19. In differentiating that style of Colonial punishment from the use of notification in Megan‘s Law legislation, the court made the following salient points: (1) public humiliation and community ostracism were only possibilities when notification occurs under Megan‘s Law enactments, (2) photographs and mailings now replace standing in the public square and remove the sex offender from direct public contact, (3) chastisement, the goal of public standing, is not the primary purpose of Megan‘s Law notification; rather, notification is utilized to protect the public and deter the reoccurrence of similar crimes; and (4) correlatively, public humiliation is no longer the primary sentence of punishment. We conclude that these same findings are applicable to our analysis of Louisiana‘s Megan‘s Law. Today‘s society is replete with examples of instances where public notification is utilized, e.g., “wanted” posters, the FBI‘s most wanted list, the publication of “deadbeat” dads’ pictures—all of these are utilized for public protection and safety. Accordingly, we find that although Louisiana‘s Megan‘s Law has provisions which may be remotely similar to historical forms of punishment, the immediate need for public protection is a corollary of rather than an addendum to the punishment of sex offenders.
Failure to Notify Causes Additional Punishment. Olivieri and Hutchinson contend that
Although
Placing burden on offender to notify. Olivieri and Hutchinson further contend that the notification requirements constitute
Although neither Olivieri nor Hutchinson have presented any evidence of projected costs that they might incur in fulfillment of their public notification obligations, it must be acknowledged that the costs of notification, particularly in a metropolitan setting, may be weighty. As required in
Placement of affirmative requirements and the imposition of costs on convicted felons is hardly new to Louisiana criminal legislation. For example, a probationer is required to: submit a monthly reрort; meet his family responsibilities, including court ordered child support obligations; make court ordered restitution to the victim; submit to drug testing at his costs; participate in psychiatric or psychological counseling at his costs; attend adult education classes at his costs until he attains a sixth grade reading level.
Having examined this aspect of the argument of Olivieri and Hutchinson, we find that the onus placed upon them by this legislation does not constitute a separate punishment for their offenses. Rather, it is clear that these obligations constitute a condition of their release, respectively, parole and probation, and any costs associated therewith are a necessary part of the regulatory scheme of the legislation in existence at the time of that release. See Bickman v. Dees, 367 So.2d 283 (La.1978). Moreover, we hasten to add that the economically harsh results of this well justified system of public notification is not the result of governmental action, but as a consequence of the sex offenders’ crimes. As such, we find that there is no infraction of the ex post facto prohibitions of the federal and state constitutions.
CONCLUSION
Having considered the legislative findings and purpose of Louisiana‘s Megan‘s Law, we conclude that the effect of the interrelated components of this legislation is not so obtrusive that we would find it punitive rather than remedial or regulatory as was the intention of the Legislature. We are cognizant that this legislation may impact a sex offender‘s life in a long-lived and intense manner. However, we observe that “whether a sanction constitutes punishment is not determined from the defendant‘s perspective.” Dept.
EQUAL PROTECTION
Hutchinson, without citation of authority, further contеnds that the retroactive application of
We find no merit to Hutchinson‘s contention. On their faces, the notification provisions of both
DECREE
For the foregoing reasons the judgments of the lower courts are affirmed. The stay granted by the district court in State v. Hutchinson on June 30, 1997 is lifted and that matter is remanded to district court for action consistent with this opinion. Our stay granted in State ex rel. William Olivieri v. State on October 31, 2000, is likewise lifted and that matter is remanded to the Board of Parole for further action consistent with this opinion.
AFFIRMED AND REMANDED.
CALOGERO, C.J., and KIMBALL, J., concur in part, dissent in part and assign reasons.
GULOTTA, J. Pro Tem., dissents in part, concurs in part and joins in the reasons assigned by the Chief Justice.
CALOGERO, Chiеf Justice, concurring in part and dissenting in part.
The majority today finds that the constitutional prohibitions on ex post facto legislation are not violated by the retroactive application of: (1) the sex offender registration requirements of
The three sex offender notification statutes before us impose on the offender similar requirements, with minor differences, depending on whether he is placed on probation, paroled from prison, or released after serving his sentence. A sex offender who has either pleaded guilty or been convicted after trial, upon release from confinement, must give notice of his name, home address, and the crime of which he has been convicted to:
(1) At least one person in every residence or business within a one-mile radius in a rural area or within a three block radius in an urban or suburban area by mail, (2) The superintendent of the school district where the defendant will reside who then forwards this information to schools within a one mile radius of the defendant‘s residence and all others he deems appropriate, and
(3) The lessor, landlord, or owner of the residence or the property where he resides.
Additionally, the offender must publish a notification, with a photograph, in the official journal of the parish in which he resides as well as a second newspaper meeting the official journal requirements if so ordered by the sheriff of police department of the area.
Similarly, a sex offender who is paroled from prison must give notice of his name, home address, and the crime of which he has been convicted to:
(1) “People who live within a one-mile radius in a rural area or within a three block radius in an urban or suburban area” by mail,1
(2) The superintendent of the school district where the defendant will reside who then forwards this information to schools within a one mile radius of the defendant‘s residence and all others he deems appropriate along with a photograph of the offender supplied by the offender, and
(3) The superintendent of the park, playground, and recreation districts within a one-mile radius in a rural area or within a three block radius in an urban or suburban area who then forwards this information to the custodians of parks, playgrounds, and recreation districts within the designated area and all other he deems appropriate along with a photograph of the offender supplied by the offender.
Finally, a sex offender placed on probation must give notice of his name, home address, and the crime of which he has been convicted to:
(1) “People who live within a one-mile radius in a rural area or within a three block radius in an urban or suburban area” by mail,
(2) The superintendent of the school district where the defendant will reside who then forwards this information to schools within a one mile radius of the defendant‘s residence and all others he deems appropriate along with а photograph of the offender supplied by the offender, and
(3) The superintendent of the park, playground, and recreation districts within a one-mile radius in a rural area or within a three block radius in an urban or suburban area who then forwards this information to the custodians of parks, playgrounds, and recreation districts within the designated area and all other he deems appropriate along with a photograph of the offender supplied by the offender.
Importantly, in all three notification statutes, the cost for providing all of the
Today, in response to recent pronouncements by the United States Supreme Court, we adopt the analysis used by that court in determining whether a statute violates the ex post facto provisions of the United States or Louisiana Constitutions.3 Under this analysis, a court must first determine whether the statute at issue is intended to be punitive or regulatory. See Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). If intended to be punitive, retroactive application of the statute runs afoul of the ex post facto clauses and the inquiry ends. On the other hand, if the statute has a non-punitive purpose, we are required to determine whether the statutory scheme is so punitive in effect as to “transform what was clearly intended as a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 99, 118 S.Ct. 488 (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 100 L.Ed. 149 (1956)). The determination of whether an intended civil remedy has a punitive effect is made by the consideration of seven factors:
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned....
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (footnotes omitted), cited in, Hudson, 522 U.S. at 99-100, 118 S.Ct. 488. In my view, despite the majority‘s conclusion to the contrary, the notification provisions of the statutes at issue are so punitive in effect so as to transform what may have been intended as a civil remedy into a punitive one.
First, in this case, the Legislature has stated that the registration and notification provisions are intended to “protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors.”
The first factor in this analysis (whether the sanction in this case operates as an affirmative disability and restraint) is evident in this case. As pointed out above, the cost required for undertaking this notification will likely run into the hundreds of dollars. The majority is correct when they point out that not all changes in an offender‘s burdens constitute an ex post facto violation; on the other hand, in my view, the substantial nature of this financial burden (in the hundreds of dollars) would indicate that it is an affirmative disability amounting to punishment. Unlike the minimal costs and reporting requirements cited by the majority, the notification requirements under these statutes require the offender to go through great pain, financial and otherwise, in satisfaction of those provisions.4 For ten years, the offender is subject to these notification requirements and, under them, must contact a wide range of people through both mailings and the advertising media. In short, this expensive burden, in my view, is the equivalent of a fine. It is not simply a regulatory cost.5 Therefore, the notification requirements of the statutes at issue operate as an affirmative disability to a defendant because of the financial and other burdens they impose. The notification requirements, as imposed by the statutes at issue, therefore, constitute a punitive penalty.
The second factor in this analysis asks us to determine whether the burden placed on the offender has been historically regarded as punishment. In this case, that factor is present as well.
One such practice historically utilized for punishing criminals was public humiliation and degradation. Such method of punishment, developed during the seventeenth century, was branding, in which a single letter representing the first letter of the crime committed was burned onto the wrongdoer‘s face.
Murderers were branded with the letter “M,” thieves with a “T,” fighters and brawlers with an “F,” and vagrants with a “V.” Historians note the branding had the effect of a spell. It took the criminal out of ordinary relations with humanity, and enclosed him in a sphere by himself. The purpose of branding in the seventeenth century was to make certain persons or groups of persons easily identifiable and thus, easily ostracized or set apart. An example of branding (without fire) was the requirement in Nazi Germany that Jewish persons wear the Star of David on a sleeve so they might be easily identified.
Note, Doe v. Poritz: a Constitutional Yield to an Angry Society, 32 Cal. W.L. Rev. 331, 347-48 (1996) (footnotes collecting authorities omitted). The statutory scheme created by Louisiana‘s notification laws specifically permit a court or, in the case of a parolee, the Board of Pardons, to order the offender to place notifications of his status as a sex offender on his car in the form of bumper stickers or even on the offender‘s clothing. It is hard to imagine a more punitive method of public humiliation or degradation than requiring an offender to wear a Scarlet Letter notifying the public of his past wrongs. Therefore, the burden placed on the offender is one which has been historically regarded as punishment. Consequently, the notification provisions of
In light of the above analysis, I would find that the sex offender notification laws transform what may have been intended as a civil remedy into a punitive one. Therefore, retroactive application of this new punishment attendant to community notification on sex offenders who have committed their crimes prior the enactment of these notification provisions violates the United State and Louisiana Constitutional prohibitions on ex post facto legislation.
Accordingly, I concur in the majority‘s holding concerning the registration requirements of Louisiana‘s Megan‘s laws, but I respectfully dissent from the finding by the majority that the notification requirements of these laws do not pose an ex post facto violation.
KIMBALL, J., concurring in part and dissenting in part.
I agree with the majority‘s finding that the statutory requirement that sex offenders register with local law enforcement agencies does not violate the ex post facto provisions of the Louisiana or United States Constitution through retroactive application. However, I respectfully dissent from the majority‘s conclusion that the notification requirements of