Silence and the Racial Dimension of Megan's Law

Abstract:     
In the last decade of the twentieth century, every state adopted a new criminal offender community notification law. While critics challenged these provisions on a number of grounds, one potential consequential cost of these laws received no attention: the possibility that they might disparately impose their significant burdens on racial minorities and, particularly, African-Americans. This article breaks this silence about race and Megan's Laws, establishing that community notification provisions do have a significantly disparate racial impact. Using newly gathered statistical data, across multiple jurisdictions, it shows that African-Americans are over-represented on these public registries of criminals. It considers how the contours of these provisions may promote this result, and also explores why this disparity is consequential.

Moving from an empirical study of these provisions, the article then investigates the reasons why race concerns never surfaced in the community notification debates. Given the centrality of racial critiques in the criminal law literature, one might have expected legislators, advocates, or at least scholars to have investigated this issue previously. The article suggests several reasons for this remarkable silence, including the narrow scope of equal protection doctrine, failures of legislatures to demand transparency about race, social phenomena such as moral panics and availability cascades, and the framing of Megan's Laws as an answer to white-on-white crime. It then offers suggestions for doctrinal, legislative, and scholarly moves that increase the transparency of race issues, exposing them to fuller democratic debate.

Keywords: Megan's Law, community notification, privacy, equal protection, race, silence, racism, criminal law

Accepted Paper Series