The Color of Community Notification

Abstract

The quick rise of criminal offender community notification provisions - popularly known as Megan's Laws - is among the most significant developments in late twentieth century criminal law. Over a ten year period, every state adopted regulations providing for registration and notification of a variety of criminal offenders. Despite the high profile of these provisions, commentators have thus far ignored one significant aspect of them: they have a significantly disparate racial impact on African-Americans. This article establishes the statistical and functional disparate racial effects of these provisions. It shows that, on a per capita basis, African-Americans are over-represented on Megan's Law rolls in every jurisdiction studied. It also shows that many of these provisions perpetuate historic racism within the criminal justice system. The article then explores why, despite the centrality of racial critiques in commentary about other aspects of criminal law, these concerns never surfaced in the community notification debates. Factors that may explain the silence around this issue include 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 way in which these laws were framed as white regulations. Finally, it offers specific suggestions of doctrinal, legislative, and scholarly moves that make it more likely that these racial disparities will become more transparent, and thus more likely subject to full democratic discussion and debate.