_{Supreme Court Watch}

By David T. ButleRitchie

For the last decade, state and local governments have struggled with the issue of how to help parents in their communities protect children from habitual sex offenders. In the late nineties, states began to pass statutes that required sex offenders to register with local police officials. These laws, which are widely known as “Megan’s Laws” (for Megan Kanka, a New Jersey girl murdered by a neighbor who was a known sex offender), have proliferated widely during the last five or six years. The Supreme Court takes up two cases that challenge such laws early this term. The first case, Smith v. Doe, No. 01-729, is from Alaska. The second, Connecticut Dep’t of Public Safety v. Doe, No. 01-1231, comes from Connecticut. Taken together these two cases should give state and local officials a much clearer picture of the constitutionality of mandatory sex offender registration schemes. This is especially important given the fact that all fifty states and the District of Columbia have passed Megan’s Laws. Charles Lane, Megan’s Laws Challenged at Supreme Court, Wash. Post, Nov. 14, 2002, at A02.

In Smith v. Doe, an Alaska statue, 1994 Alaska Sess. Law ch. 41, which requires convicted sex offenders to register with authorities, is being challenged by three men who claim that the law violates the constitutional ban on ex post facto laws. (The case comes on appeal from the Ninth Circuit. See Doe v. Otte, 259 F.3d 979 (9th Cir. 2001).) The State of Alaska passed its version of Megan’s Law, the Alaska Sex Offender Registration Act, in 1994. Registrants under the act must present themselves four times a year for the rest of their lives to local law enforcement officials and verify their address, employment information, and other personal data. Alaska Stat. § 12.63.010. The statute not only requires convicted sex offenders to register with officials, but also provides that the state’s Department of Public Safety must make the information publicly available. The Alaska Department of Public Safety does this by posting the information on its website.

The plaintiffs in the Alaska case were all previously convicted of sex offenses. They had each completed their sentences under these convictions. Doe and his fellow plaintiffs have argued that the Alaska statute is, in effect, a further punishment because it requires them to engage in actions that amount to perpetual probation. They further argue that the public dissemination of the sex offender registry via the Internet is also designed to be punitive in nature. The complaint here is that such unrestricted dissemination—without any information as to the likelihood of recidivism by particular registrants—is an “affirmative disability or restraint,” which violates the constitutional rights of the registrants.

The Ninth Circuit Court of Appeals embraced this logic, holding that the Alaska statute was not narrowly drawn in a way that would serve the public safety concerns without punishing the registrants. 259 F.3d at 987. In evaluating the Alaska statute, the Ninth Circuit looked to its review of a similar statute passed by the State of Washington. In Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), the Ninth Circuit upheld a sex offender registration scheme that required a one-time registration of convicted sex offenders. Id. In Russell, the Ninth Circuit felt that the primary purpose of the registration—protecting the public interest by informing the community of the presence of convicted sex offenders—was narrowly served by the statute. Id. Although the court felt that the Washington statute did impose an affirmative disability on registrants, it held that this disability was not punitive in nature. Id. at 1092. This finding was based, in large part, on the fact that the registration was not onerous and the dissemination of the information garnered by the registration was limited geographically. Id. at 1088-89.

In the Alaska case, the Supreme Court will review the extent to which the Alaska statute serves as a further punishment by placing an onerous reporting burden upon convicted sex offenders. The widespread distribution of the registry through the World Wide Web could also be considered a punitive measure that goes beyond the scope of the purpose of the legislation (protecting children who reside in the state). Lawyers for the State of Alaska have argued that the posting is not punitive, as it is simply a publication of public information readily available through other means. In oral arguments before the Supreme Court, however, several Justices—including Justice Ginsburg—seemed skeptical. No. 01-1231. Justice Ginsburg suggested that the disclosure of the information is not the whole truth because it does not give any data on the likelihood that any particular registrant will repeat similar crimes. Id.

Connecticut’s Megan’s Law also calls for the information to be published on the Internet. Conn. Gen. Stat. §§ 54-250-261 (2001), amended by 2001 Conn. Legis. Serv. 01-84 (West). Although the reporting requirements of the Connecticut registration scheme are not as burdensome as those found in the Alaska statute, the plaintiffs who challenged the Connecticut law have argued that the law violates their due process rights by publishing and widely disseminating information that may unfairly characterize them as currently dangerous. The Connecticut statute, which calls for Internet posting of the sex offender registry, does not allow most convicted sex offenders an opportunity to show through a hearing that they are not currently a threat to public safety.

The registrants in the Connecticut case claim that the absence of such a process for a hearing is a violation under 42 U.S.C. § 1983. In effect, the plaintiffs argue that the dissemination of their names without a hearing to determine their current propensity to engage in criminal sexual behavior stigmatizes them. The Second Circuit Court of Appeals agreed, holding that “publication of the registry implies that each person listed is more likely than the average person to be currently dangerous.” Doe v. Dep’t of Public Safety, 271 F.3d 38, 49 (2d Cir. 2001). “This implication,” the court felt, “stigmatizes every person listed in the registry.” Id. Relying on the “stigma plus” test from Paul v. Davis, 424 U.S. 693 (1976), the Second Circuit examined whether the actions of the government not only stigmatized the plaintiffs but also implicated “a right or status previously recognized by state law.” Id. at 701, 711. Plaintiffs maintained that their good name, honor, and reputation are such rights under state law. Cf. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). Although the Second Circuit did not necessarily accept such an interpretation, it nonetheless found that the “stigma plus” requirements of Paul were met here. Because the Connecticut statute not only stigmatized the plaintiffs but also imposed a “new set of legal duties,” Doe v. Dep’t of Public Safety, 271 F.3d at 57, their Fourteenth Amendment due process rights were violated.

During oral arguments on November 13, 2002, Shelly Sadin, attorney for the plaintiffs in the case, argued that “‘[t]he state of Connecticut does not have the right without an individual proceeding to tell neighbors this person is dangerous . . . .’ ” Lane, supra, at A20. Sadin went on to say that “[t]his creates a new class of citizens, a second class of citizens.” Id. Solicitor General Ted Olson responded that “[t]hese individuals have no constitutional right to conceal these public truths from individual citizens.” Id.

The Supreme Court’s decisions in these cases, which are expected by July 2003, will have a huge impact on the registry schemes of every state in the nation. The Megan’s Law enacted by the D.C. government has already been invalidated upon arguments similar to those found in the Alaska and Connecticut cases. Doe #1 v. Williams, 167 F. Supp. 2d 45 (D.D.C. Sept. 19, 2001). The anti-crime wave that swept across the country during the 1990s and the politicians who benefited from “tough on criminals” rhetoric will be put to a significant test here. I suspect that even this court will find the overly broad and burdensome nature of many Megan’s Laws unconstitutional. If this is indeed the case, state lawmakers will have to narrowly structure sex offender registration schemes. This means, in effect, that state legislatures will have to ensure that any registration program they adopt is not punitive in nature, does not overly publicize the data contained in the registry, and allows registrants an opportunity to show that they are no longer a danger to the community. The Washington State statute that was upheld by the Ninth Circuit is narrowly tailored in these ways. If the high court rules as I suspect, all states might look to registration schemes like the one found in Washington to guide them as they refine and tweak their Megan’s Laws.