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State v. Druktenis1/30/2004
7) (recognizing that states are afforded wide latitude in assessing the risk posed by prior offenders and in fashioning laws designed to provide for public safety); State v. Wilkinson, 9 P.3d 1, 5-6 (Kan. 2000) (stating that sex offenders are a "class of criminals who are likely to reoffend"). The Wisconsin Court of Appeals in Radke noted that " lthough studies have come to varying conclusions, there is at least some evidence supporting the view that child sex offenders, particularly those with prior convictions, have a high recidivist rate." 647 N.W.2d at 878 n.8. The court set out various studies. Id. The court concluded:
Despite the uncertainty in this area, based on the importance of the interest in protecting potential victims from sexual assault, we cannot conclude that the legislature acted irrationally when it chose to err on the side of protecting the public in lieu of permitting circuit courts to make individualized determinations regarding sentencing.
Id. At least one Megan's Law case has indicated what the factual bases likely are for the recidivism concerns and legislative determinations. See Doe v. Poritz, 662 A.2d 367, 374-75 (N.J. 1995) (setting out studies and statistics regarding recidivism).
The crimes that trigger the notification provisions under SORNA are limited to (1) criminal sexual penetration (CSP) in the first or second degree, § 30-9-11; (2) criminal sexual contact of a minor in the third or fourth degree (CSCM), § 30-9-13; (3) sexual exploitation of children, § 30-6A-3(A)-(C); (4) sexual exploitation of children by prostitution, § 30-6A-4; and (5) attempt to commit any of the foregoing crimes, § 30-28-1. § 29-11A-5.1(A). Significantly, these criminal statutes all proscribe sexual conduct involving children: three do so exclusively, and CSP does in part, with the remainder of CSP proscribing heinous sexual criminal conduct. It is obvious that the Legislature carefully considered the crimes that should trigger the notification provisions and limited those crimes to outrageous sexual or sexually oriented conduct aimed at children and other outrageous sexual conduct accompanied by particularly heinous behavior.
The State clearly has a legitimate and compelling interest to match the notification provisions with these crimes in the legislative attempt to minimize the risk of harm to society by those who pose a significant risk of recidivism. We therefore have no doubt, and Defendant does not contest, that the State's interest in attempting to protect society from convicted sex offenders who pose a significant risk of recidivism is both legitimate and compelling. "There is no doubt that preventing danger to the community is a legitimate regulatory goal." Salerno, 481 U.S. at 747. There is also no doubt that "the [State's] regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest." Id. at 748.
But with over-inclusiveness come questions of fairness and rationality. What if an individual offender is able to present evidence that he or she does not pose a significant risk of recidivism and is not a current danger to society? The difficult question posed is, while it may be eminently reasonable, fair, and rational to impose the notification requirements on a sex offender whom psychologists and society have little doubt will probably repeat the horrid conduct, what can be reasonable, fair, and rational about a notification process that, in effect, tells a community, through strong implication, that the convicted offender will likely repeat the offense if, in fact, the offender is not at all likely to recidivate? This nagging concern created by SORNA's compulsory approach trigg
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