The laws were designed to help increase public safety and provide information for people living or working near those convicted of sexual crimes.
All states have a version of the sex offender registry law, known as Megan’s Law for 7-year-old Megan Kanka, a New Jersey girl who was kidnapped, raped and murdered in 1994 by a twice-convicted sex offender who lived across the street.
The high court is reviewing registry acts in Alaska and Connecticut where, as in several other states, information on convicted sex offenders — including offenders’ names, pictures, addresses and conviction details — is available on Internet databases.
“Today’s arguments weren’t easy ones for the justices, who struggled with whether a community’s interest in knowing about convicted sex offenders should always outweigh a person’s right to move on with his life,” said Jan Crawford Greenburg, Supreme Court reporter for The Chicago Tribune and NewsHour legal analyst.
“Most indicated they well understood why a community would want the laws — which make truthful, public information more readily available,” Greenburg said. “But some also seemed troubled that the laws imposed tough burdens on sex offenders and opened them up to years of stigma and shame — even if they hadn’t committed a violent sexual offense.”
The Alaska case, Smith v. Doe, questions whether the state’s Sex Offender Registration Act should apply to those who committed their crimes before the statute was enacted.
In 1990, two men, who are anonymously identified in the court proceedings as John Doe I and John Doe II, were released from prisons in Alaska after serving sentences for child sexual abuse charges. In 1994, Alaska enacted its Sex Offender Registration Act and the men were required to register with law enforcement authorities and have their information posted in an online database.
In a series of court filings, the two men claimed that the requirement for them to register for crimes committed before the law was enacted amounts to unconstitutional retroactive punishment and a violation of the Constitution’s ex post facto clause.
“This case involves an extremely sensitive and difficult question, both from a social and legal standpoint,” the 9th Circuit Court of Appeals wrote of the case. “How may society deal with convicted sex offenders after they have been punished for their crimes? How can society protect itself against future offenses and at the same time safeguard the constitutional rights of persons who have fully paid the price imposed by law for their crimes?”
The panel of judges in the 9th Circuit Court found Alaska’s law unconstitutional in applying to those whose crimes were committed before the statute’s enactment. State lawyers petitioned the Supreme Court to review the lower court decision. Currently, the state’s sex offender registry site only lists those offenders who committed their crimes after the law was enacted.
In Wednesday’s arguments, U.S. Solicitor General Theodore Olson argued that the sex offender registration process was no different than other paperwork required to get married, vote, register a car or get a divorce.
However, according to Greenburg, Justice Anthony Kennedy injected, “Most of those don’t involve shame or ridicule. This does.”
The second case, Connecticut Department of Public Safety v. Doe, examines whether that state’s sex offender registry denies due process by failing to hold hearings to allow a former criminal to be evaluated for “current dangerousness” before his or her information is made publicly available.
The case began in 1999 when a man in Norwalk, Connecticut sued the Department of Public Safety to have his name removed from the online registry rolls so that his daughter would not learn of a previous sexual offense. A district court dismissed the man’s claim, but required that the state include a disclaimer on the Internet site that explained that no determination had been made as to whether individuals on the site were currently dangerous.
A second man filed a subsequent suit in federal court claiming that the registry system violated his constitutional right to due process. A district judge criticized the statute and agreed that the man’s 14th Amendment right to due process was violated, but also sided with the department that its procedures did not add up to an unconstitutional retroactive punishment. Both sides subsequently appealed.
Citing the court action, the Connecticut Department of Public Safety shut down public access to its sex offender registry site soon thereafter.
Lawyers for the two offenders, who have also chosen to remain anonymous, argue that placing their clients in the registry without a hearing violates the constitutional guarantee that the government cannot take away “life, liberty or property without due process of law.”
“Several of the justices appeared concerned that Connecticut law lumped everyone together as ‘sex offenders,’ whether they had committed violent assaults or had sex as a teenager with someone only a few years younger than themselves,” Greenburg reports. “But more conservative justices, notably Justice Antonin Scalia, suggested that the law did not require a hearing because the state had decided the community was entitled to know about all sex offenders.”
“Maybe people in Connecticut don’t trust hearings, they don’t trust the opinion of psychiatrists,” Justice Scalia said. “They say, ‘I don’t want to live next to someone who’s a convicted sex offender, and I don’t care what psychiatrists say.'”
Connecticut Attorney General Richard Blumenthal defended his state’s laws with the backing of the White House, which filed a friend-of-the-court brief arguing that that states are allowed under federal Megan’s Law guidelines to dispense with evaluation hearings since the process is costly and often inaccurate.
At least 22 other states have laws similar to those in Connecticut.