“[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”
—Mathews v. Eldridge
Minnesota Statutes section 243.166 subdivision 1(b) (subdivision 1(b)) requires a person to register as a predatory offender based on a charge rather than a conviction. Minnesota is the only state in the nation with such a statute. Subdivision 1(b) requires a person to register as a predatory offender if they are convicted of an enumerated felony—including, but not limited to, murder, kidnapping, criminal sexual conduct, false imprisonment, and solicitation—or if they are “charged with . . . any of the [enumerated felonies] and convicted of or adjudicated delinquent for . . . another offense arising out of the same set of circumstances.” The statute relies on the muddy probable cause standard as the bar for compelling registration. It does not allow for any judicial discretion to alter the registration requirement, nor the opportunity for a defendant to challenge their registration requirement, even if the defendant is acquitted of their predatory charge. Instead, the law universally mandates registration for a period of ten years or more.
This Note argues that subdivision 1(b) and its interpretation by the courts utterly defy the principles of procedural due process. Predatory offender registration implicates a liberty interest. In fact, the U.S. Supreme Court previously recognized reputational harm as a liberty interest by itself until the Paul v. Davis decision. The Minnesota Supreme Court should abandon the Paul v. Davis “stigma-plus” test in the context of predatory registration. The statute’s widely expanded requirements and restrictions cause significant reputational harm and thus call for procedural due process protection. Additionally, the Minnesota legislature must recognize the collateral consequences that section 243.166 carries and amend subdivision 1(b) to grant judges the discretion to modify defendants’ registration requirements based on the circumstances and grant defendants the opportunity to be heard prior to their required registration.
This Note begins by recounting the historical backdrop of predatory registration laws in the United States. Next, the Note examines section 243.166 and its legislative history. In part three, it explores procedural due process, specifically looking at case law addressing whether reputational harm is a liberty interest deserving of procedural due process protection. Following that, the Note discusses why the stigma and collateral consequences that accompany predatory registration under section 243.166 constitute a liberty interest worthy of procedural due process protection; it argues that requiring registration based on a charge without granting an opportunity to be heard violates procedural due process principles. Finally, the Note offers recommendations for amending section 243.166 to protect individuals not convicted of predatory offenses from being universally required to register as predatory offenders.