By Elaine Hargrove-Simon, Silha Fellow and Bulletin editor
Two separate cases, handed down the same day by the U.S. Supreme Court, both ruled that registration of convicted sex offenders in a publicly-accessible database that collected certain personal information about them did not constitute a punitive measure. The cases, Smith v. Doe, 123 S. Ct. 1140 (2003) and Connecticut Department of Public Safety v. Doe, 123 S.Ct. 1160 (2003), were argued on Nov. 12, 2002 and decided on March 5, 2003.
The question in the Connecticut case centered on the co-called "Megan's Law" statutes (Conn. Gen. Stat. sectionsection54-251, 252, 254 (2001)) that require the registration of persons convicted of sexual offences and dissemination of that information on the Internet. Doe asserted that the statutes violated, among other things, the Fourteenth Amendment's Due Process Clause and "liberty interest" by causing harm to his reputation. When the case originally came before the District Court (see Doe v. Lee, 132 F. Supp. 2d 57 (2001)), Doe was granted summary judgment and the trial court permanently enjoined the law's public disclosure provisions. The U.S. Court of Appeals (2d Cir.) affirmed (see Doe v. Department of Public Safety, 271 F. 3d 38 (2002)).
Chief Justice William H. Rehnquist, writing for the majority, reversed, citing Paul v. Davis, 424 U.S. 693 (1976), and held that "mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest." He noted that Connecticut's Department of Public Safety Web site carried warnings stating, "Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution." Other disclaimers appeared throughout the site with similar warnings.
As to the substantive due process question in the case, Rehnquist wrote that the government was not required to "accord the plaintiff a hearing to prove or disprove a particular fact or set of facts." The state law's registration requirements focused on whether the registrant was convicted of a sex crime, not whether that person is dangerous.
In his concurring opinion, Justice Antonin Scalia wrote that even if the statute implicated a liberty interest, a properly enacted law provides sufficient due process to protect it. "A convicted sex offender has no more right to additional 'process' enabling him to establish that he is not dangerous than . . . a 15-year-old has a right to 'process' enabling him to establish that he is a safe driver."
Justice David Souter also wrote a concurring opinion, joined by Justice Ruth Bader Ginsburg, agreeing with the result but suggesting that Connecticut's legislation might be challenged equal protection grounds.
In the Alaska case, Doe, a convicted sex offender, served his sentence and completed a rehabilitation program. Subsequently, the Alaska legislature passed its version of Megan's Law, the Alaska Sex Offender Registration Act (1994 Alaska Sess. Laws ch. 41, section 12 (a); Alaska Stat. sectionsection 12.63.010 (a), (b), (c), (d) (2000) and section 18.65.087 (a), (b)), requiring convicted sex offenders to register with the Alaska Department of Public Safety. Doe and several other sex offenders sued in federal District Court in Anchorage, arguing that the new law violated the Ex Post Facto clause of the Constitution and the Due Process Clause of the Fourteenth Amendment as a punitive civil regulation because their photographs and addresses were accessible to the public on the Internet. The District Court granted them summary judgment. The U.S. Court of Appeals (9th Cir.) (see Doe v. Otte, 259 F. 3d 979 (2001)) held that although the legislature did not intend the law to be punitive in nature, it did in fact have a punitive effect, and ruled in Doe's favor.
Justice Anthony Kennedy found no evidence that the law was meant to further punish a convicted sex offender, and reversed the appeals court, remanding the case for further proceedings. Writing that the legislature drafted the law as a "civil, not a criminal sanction," Kennedy found that the law was not intended to further punish convicted sex offenders by public shaming because the records concerning them were already public. Posting the information on the Internet is merely dissemination about a matter that was already part of a "public indictment, public trial, and public imposition of a sentence." Kennedy continued, "Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused."
Kennedy further wrote that the Act does not "constrain activities sex offenders may pursue but leaves them free to change jobs or residences." Although registrants must inform authorities before changing jobs or their physical appearance, the Act does not prohibit them from doing these things, he noted.
Kennedy wrote that there was only one incident where a convicted sex offender suffered harassment since the passage of the Act. Such harassment may have occurred despite the Act, since the information was a matter of public record. "[Such] consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record," Kennedy wrote. Furthermore, the information is not readily available on the state's Web site; an Internet user must make an effort to find it.