Advertisement

Court weighs fairness of Megan's law

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, Nov. 13 (UPI) -- Megan's law, which gives the public easy access to information on sex offenders when they are released into the community, was tested Wednesday in the Supreme Court.

The first such law was enacted in New Jersey and named for 7-year-old girl Megan Kanka, who was sexually assaulted and killed in 1994 by a repeat sexual offender who lived across the street.

Advertisement

Since then, encouraged by the federal government, all 50 states have enacted some version of the law.

The Supreme Court heard two challenges to the law Wednesday, one from Alaska and the other from Connecticut. In both challenges, lower courts have struck down the individual state laws as unconstitutional.

In each case, the state and the Bush administration are asking the Supreme Court to overturn the lower court and uphold the sex offender registries as lawful regulation rather than unconstitutional punishment.

Advertisement

A Supreme Court decision would affect such laws across the country.

U.S. Solicitor General Theodore Olson told the justices Wednesday that Megan's laws in all the states merely make it easier for the public to access information -- a sex offender's name, crime and address -- that is already part of the public record.

"These individuals have no constitutional right to conceal these public truths," Olson argued.

The issue in the Alaska case is whether sex offenders convicted before the state enacted its version of the law in 1994 were being punished unconstitutionally after the fact.

The Constitution bans "ex post facto" laws that are passed after a crime was committed but add punishment for the crime.

The Connecticut case has a much broader sweep. The issue in Connecticut is whether being included in a publicly accessed sex offender registry -- without a new hearing proving that the offender remains dangerous -- violates the Constitution's guarantee of "due process," or a fair and rational procedure.

In the Alaska case, two men identified as John Doe I and John Doe II pleaded no contest to charges of sexually abusing minors. Both were released from prison in 1990.

Advertisement

Alaska enacted the Sex Offender Registration Act, its version of Megan's law, in 1994. It requires those who were convicted of sex offenses after 1984 to register with the state, providing their names, addresses, employers and vehicles. They must also be fingerprinted and photographed by police. Like Connecticut, most of that information is then provided to the public on an Internet sex offender registry.

The Does filed suit, contending the law violates the Constitution because it punishes them for conduct that occurred before the law was passed. A federal judge disagreed, but a federal appeals panel reversed, saying the effects of the law were punitive.

Alaska then asked the Supreme Court for review.

Speaking for the state Wednesday, Washington attorney John Roberts Jr. told the justices that Connecticut's sex offender registry contains "truthful information about convicted sex offenders."

Sex offenders are notorious recidivists, Roberts said, and are more likely to repeat their crimes than any other offender.

The registry simply makes information that is already part of the pubic record more accessible "to allow the members of the public to take steps to reduce these opportunities," Roberts said.

Roberts is a Bush administration nominee for the federal appeals court in Washington, though his nomination has been in limbo for some time, and he was given a respectful hearing by the Supreme Court.

Advertisement

But Justice Ruth Bader Ginsburg repeatedly brought up the fact that sex offenders have no way of getting off the registry, even if they can prove they are no longer dangerous.

And she questioned whether inclusion on the registry wasn't a form of punishment. "That's the equivalent of a town square where you're shaming the (criminal)," she said.

Roberts responded that the sex offender registry "is different from the historic shaming punishment because of the purpose" -- to protect the public, rather than further punish an offender.

Supporting Roberts, Olson told the court that the only shame connected to the registry was the shame of having been convicted of a sex crime.

Anchorage attorney Darryl Thompson spoke on behalf of the two Does.

The sex offender registry is punishment, rather than lawful regulation, Thompson said because it is automatic and inescapable; it regulates the person himself, rather than the procedure; and it puts restraints on the person.

"What about someone who is a dangerous sex offender," Justice Sandra Day O'Connor asked, "who poses a threat to children?"

Thompson cited 1997's Kansas vs. Hendricks in which the Supreme Court, by a 5-4 vote, upheld that state's practice of civilly committing sex offenders to confinement, after they served prison terms, if they were considered to still be dangerous.

Advertisement

Unlike Kansas and its civil commitment, Thompson said, neither Alaska nor any other state held a hearing to decide whether a sex offender remained dangerous before being put on a registry.

At that point, Justice Stephen Breyer questioned whether being named on a registry was even punishment. Breyer, who wrote the strong minority dissent in Hendricks, said he used to think that being confined to a cell was punishment, but the majority in the Kansas case ruled that "I was wrong."

If being confined to a cell isn't considered punishment, Breyer asked rhetorically, how can being listed on a registry be considered punitive?

The second case before the Supreme Court Wednesday dealt exclusively with Connecticut's Megan's law and the issue of due process.

Connecticut's version of the law requires the registration of anyone convicted of a crime in four categories: criminal offenses against a minor victim; non-violent sexual offenses; violent sexual offenses, and felonies committed for a sexual purpose.

Persons convicted of violent sexual offenses are registered for life; the rest are registered for 10 years.

Everyone who must be registered is required to provide the state Department of Public Safety with his or her name, fingerprints and other identifying factors, a photograph, criminal history record, address and a blood sample for DNA purposes.

Advertisement

Convicted violent sexual offenders also must supply information on any mental health treatment, and verify an address every 90 days.

All those being registered have to notify the state of a new address within five days. They must also tell the registering agency when they temporarily reside in another state, and must submit to having a new photograph taken any time the state requests it.

The state Department of Public Safety makes the registry available to the public, primarily through its "Sex Offender Registry" on the Internet. The registry can be reached through the Web pages of several television stations as well as the state's Web page at state.ct.us.

The database is searchable through the use of zip codes so members of the public can find out which convicted sex offenders are living in their neighborhoods.

Sometime before May 1999, the state added a statement to the registry that said the DPS has "not considered or assessed the specific risk of reoffense ... and has made no determination that any individual included in the registry is currently dangerous."

One registry enrollee, identified in the case only as John Doe, challenged the law in February 1999, saying it violated the "due process" guarantee of the 14th Amendment because it deprives him of a "liberty interest" -- his reputation and status under state law -- without a meaningful hearing.

Advertisement

When a federal appeals court eventually ruled in his favor, Connecticut Attorney General Richard Blumenthal asked the Supreme Court for review of the Doe case, which has been combined with a similar case filed by "Samuel Poe."

Speaking for the state Wednesday, Blumenthal said the state registry was not designed to punish, but to satisfy a demand for information from members of the public "so that they can decide how to protect and defend their families and their children."

Olson also supported Blumenthal in argument.

Speaking for the Does of Connecticut, Bridgeport attorney Shelley Sadin argued that the mere context of the sex offender registry made it fresh punishment without a fair hearing.

"In the eyes of a concerned public," Sadin declared, "every person on Connecticut's Megan's law is a threat to the children of the public."

"How do you know that?," Chief Justice William Rehnquist shot back.

Because the purpose of the law is to "protect the public," Sadin responded.

Rehnquist cited the FBI's "10 Most Wanted Fugitives" list. "Could one of those people on that list demand a hearing," Rehnquist said from the bench, "complaining he didn't belong on it?"

Advertisement

The Supreme Court should hand down decisions in both cases within the next couple of months.

(Nos. 01-729, Smith and Botelho vs. John Doe I et al; and 01-1231, Conn. DPS et al vs. John Doe et al)

Latest Headlines