by Adam Freedman
Today’s topic: Halloween and the Law: tricks, treats--and due process.
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
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What are “Halloween Laws”?
Did you know that there are special laws that apply only on Halloween night? That may sound scary, but such laws are actually designed to make parents feel safer by restricting the activities of convicted sex offenders on Halloween. These laws are increasingly popular, but--as I’ll explain in a minute--they have been facing a number of legal challenges in state and federal courts.
Halloween Laws Apply to Sex Offenders
Over the past few years, a number of states--including Missouri, Illinois, Maryland, and Louisiana--have enacted so-called Halloween Laws. When I first heard the term “Halloween Law,” I thought that somebody had finally passed the kind of legislation I longed for as a kid: like, say, a law requiring grown-ups to hand out real candy on Halloween, rather than raisins, apples, or other “healthy” snacks. But no, these laws have a much more serious purpose: to keep trick-or-treaters away from potential sexual predators.
What Do Halloween Laws Say?
The typical Halloween Law requires convicted sex offenders to stay in their house on Halloween night, and prohibits them from answering the door to trick or treaters. In some states, sex offenders are also required to post a sign on their door saying “No Candy at this Residence,” or words to that effect. In Maryland, state officials created a stir when the signs that they distributed to sex offenders were pumpkin-shaped and bright orange. These unintentionally jaunty signs quickly became fodder for late-night comics, including a skit on Saturday Night Live.
Are Halloween Laws Unconstitutional?
But Halloween Laws have been subjected to more than just ridicule--they have faced a number of legal challenges. Although the basic requirements of typical Halloween Laws appear to be constitutional, some court cases in Missouri have placed limits on the scope of such laws.
First, Halloween Laws must be precise about what exactly they prohibit. In Missouri, the law not only required sex offenders to stay inside on Halloween, but it originally prohibited all “Halloween-related contact” with children. But the law never defined what “Halloween-related contact” means. For example, could a convicted sex offender carve pumpkins with his own children or grandchildren?
The law wasn’t clear. That’s a problem because the Constitution’s guarantee of “due process” means that penal laws must clearly describe the conduct that is prohibited. In 2008, a federal judge struck down Missouri’s ban on “Halloween-related contact” as unconstitutionally vague.
Halloween Laws May Not Apply to All Sex Offenders
The other aspects of Missouri’s Halloween Law remained in force. In January 2010, however, the Missouri Supreme Court held that the law applies only to individuals who were convicted of sexual offenses after the Halloween Law was enacted. The court said that subjecting sex offenders to additional obligations that didn’t exist at the time of their conviction would violate the Missouri constitution’s prohibition against “retrospective” laws.
But what about the US Constitution--you might be asking--doesn’t that prohibit all “ex post facto” laws? Yes, it does, but “ex post facto” is a relatively narrow concept; it doesn’t forbid all retroactive laws, but only those that criminalize conduct retroactively, or that add new punishments to past crimes. State laws that require convicted sex offenders to register with state authorities and follow certain guidelines have been upheld by the US Supreme Court on the theory that such laws do not impose additional “punishments” for past crimes. The bottom line is that the retroactive application of Halloween Laws will only be a problem in the relatively few states that, like Missouri, have broad prohibitions against retrospective laws. And even in those states, the Halloween Laws continue to operate with respect to those convicted after the enactment of the law.
Halloween Laws vs. the Right to Travel
Another objection to Missouri’s Halloween Law was raised last year by a man who was arrested for failing to stay in his house on Halloween night--even though the reason he wasn’t in his house was because he wasn’t even in the state. In fact, he was vacationing in Arkansas. But the Missouri law, like other Halloween Laws, does not have a specific exception for people who aren’t in their houses on Halloween because they’re travelling.
The lawyer for the man who was arrested last year argues that the strict requirement to stay in your house over Halloween infringes on Americans’ right to travel, which has been recognized as a “fundamental right” protected under the 14th Amendment. Unfortunately, I can’t find any record of a court decision on that issue.
In any event, Halloween Laws that are written clearly and make some allowance for people to travel on Halloween should withstand constitutional challenge. And whether or not there is a Halloween Law where you live, there are plenty of other steps you can take to keep your kids safe on Halloween. Check out the article by my Quick and Dirty Tips colleague Mighty Mommy to learn more!
And finally, I wanted to let you know about a terrific new book by my Quick and Dirty Tips colleague Stever Robbins, aka The Get it Done Guy. Get-It-Done Guy's 9 Steps to Work Less and Do More covers all the big things that cause you to fall behind on your goals, like email overload and procrastination. The book is available in paperback and as an ebook and audiobook. Enjoy!
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