excerpted from: Daniel Filler, Silence and the Racial Dimension of Megan's Law, 89 Iowa Law Review 1535-1594, 1537-1540, 1594 (May, 2004)(262 Endnotes)

Some secrets hide in plain view. The public registries of criminal offenders are among the most transparent aspects of the American criminal justice system, providing citizens detailed information about criminals in their communities and beyond. For curious web surfers and policy analysts alike, a vast catalog of criminals--complete with photos, descriptions of crimes, and addresses--is only a mouse click away. Yet buried in these galleries of rogues is a troubling and heretofore undiscovered fact: community-notification schemes, popularly known as "Megan's Laws," punish African-Americans more severely than any other racial group. Racial inequality is serious enough, but the problem does not end there. The racial inequities of Megan's Laws have never been discussed or debated in legislatures, courts, the mass media, or even scholarly journals. For the first time, I lay bare both the racial dimension of community notification and critical legal and policy debates that have never happened.

Megan's Laws were a signature legal development of the 1990s. In 1990, Washington became the first state to subject criminal offenders to public exposure, requiring local authorities to alert communities when selected convicts moved into the area. These laws spread across the nation, gaining momentum in the aftermath of several high profile child abduction/murders. By the end of the decade, every state and the District of Columbia had created a public registry of selected criminal offenders.

Despite the rush of legislative activity and extensive discussion in the courts, mass media, and legal journals, race never surfaced as an issue in the Megan's Law debate. This silence is odd. The racially disparate effects of the nation's criminal justice policies are widely acknowledged, and commentators criticize this aspect of criminal law frequently. The absence of any serious and substantive discussion about the racial dimension of Megan's Laws obscured their significant consequences.

In this Article, I present new data showing that African-Americans are grossly over-represented on notification rolls. In some states, an African-American person is over sixteen times more likely to appear on a notification website than a white person. The inequities extend well beyond statistical disparities, however. By including offenders convicted before several landmark anti-discrimination cases, and during periods of documented informal discrimination, registries perpetuate historical racism. Moreover, among African-Americans, and certain African-American communities, already devastated by the social consequences of mass incarceration, the side effects of Megan's Laws--shame, social disconnection and exclusion--take a uniquely high toll.

Critics' silence about race inequities is profoundly consequential. Although legislatures routinely pass laws imposing unique burdens on racial minorities, the chief weapon in fighting such laws is open and public discussion of these disparities. When race issues surface in public debates, legislative majorities are more likely to scrutinize the need for new laws and curb unnecessary, or particularly problematic, aspects. Advocates seeking to limit the uneven racial effect of other criminal laws have won several battles after effectively articulating their concerns. For example, they successfully won judicial support for new jury procedures designed to minimize systematic exclusion of minorities. More recently, they effectively used public debate to force reconsideration of racial profiling policies. Of course, public discussion is no panacea, and advocates for racial equality in criminal law sometimes fail. But even when they do, racially based advocacy creates the potential for future improvements. Thus, despite the persistence of racially imbalanced sentencing for cocaine offenses, proposals to address the issue have repeatedly resurfaced and have been the subject of serious policy discussion.

Why, then, has race remained so invisible in the context of notification? There are several possibilities: the Supreme Court's narrow reading of the Equal Protection Clause; legislatures' failure to collect and distribute data about the laws' racial effects; the political costs of challenging such laws; critical failures in the functioning of democratic process; and proponents' effective use of a "white" narrative frame to promote the provisions.

In this Article I take the first step towards expanding the debate about community notification, thus unlocking the potential for serious scrutiny of these regulations. I propose specific new doctrinal and legislative moves that would increase the likelihood that the racial impact of Megan's Laws will receive sustained attention. I also suggest new directions for scholars, encouraging innovative work that will assist with this process on a broader level.

In Part II of this Article, I set out the history of community-notification provisions with a particular emphasis on race. I lay out the series of high profile crimes, perpetrated by white offenders against white children, which formed the groundwork for the swift national adoption of community-notification laws. I also describe the variety of different community-notification schemes now in place.

In Part III, I document the racially disparate effects of community notification. First I focus on the statistical impact of these laws. I establish that African-Americans bear the brunt of these schemes. I then explain how community notification disparately affects African-Americans in other ways. These laws perpetuate historical discrimination by relying on convictions more likely tainted by formal and informal racism. They also exacerbate the costly secondary effects of existing race disparities within the criminal justice system.

Next, in Part IV, I document the invisibility of race in criticism of the new laws. I show that the race issue did not surface in courts or legislatures, or among legal or popular commentators. In Part V, I suggest reasons for the silence. I offer several explanations, including courts' narrow applications of equal protection doctrine (which eliminates the incentive for offenders to develop disparate-impact claims); the failure of state and federal governments to collect and distribute race data, which might have encouraged comments and further research on the issue; and the political difficulty of challenging any law framed in terms of child protection. These reasons also include the effects of certain social phenomena, like moral panics and availability cascades, which short-circuited the deliberative democratic process, in addition to the rhetorical success of advocates framing these laws in terms of white victims and offenders.

Finally, in Part VI, I explore methods that could be utilized to focus attention on the racial effects of community notification, and enhance the chances of changing such laws to reduce inequities. I consider new doctrinal approaches, including a rethinking of equal protection jurisprudence; new legislative approaches, including policy changes leading to better transparency on race and procedural changes likely to increase the extent of discussion; and new scholarly directions, including more research on the reasons and dimensions of racial disparity in community notification as well as a more serious look at race in the context of both law and economics and law and sociology scholarship.

VII. Conclusion

African-Americans bear the costs of Megan's Laws at a level far in excess of other Americans. Despite the fact that this disparity was reasonably predictable, critics repeatedly failed to discuss the issue of racially disparate impact. This silence stunted democratic debate, and stands as a barrier to serious evaluation and reformation of community notification. As a consequence, African-Americans suffer these inequalities even in the absence of proof that registries work, or that the specific provisions generating these disparities serve the stated legislative purposes of Megan's Laws. The time has come for courts, legislators and scholars to speak out, and take remedial action. To instigate a conversation about the racial dimension of these provisions, courts must rethink equal protection doctrine. Legislators must implement substantive and structural reforms that make such debates more likely. And commentators must step forward, developing more rigorous analyses and assisting other participants in the larger democratic debate. Silence about race is costly and the price is overwhelmingly paid by African-Americans, and their communities, already impoverished by the inequities of American criminal justice.

. Associate Professor of Law, University of Alabama School of Law.