November 14, 2002
Court Looks at Sex Offenders' Lists
By LINDA GREENHOUSEASHINGTON, Nov. 13 — The Supreme Court spent an intense two hours today scrutinizing approaches that states on opposite sides of the country have taken to notifying communities about the presence of convicted sex offenders in their midst.
The information contained in the Megan's Law sex offender registries — name, offense and current whereabouts — is true, as far as it goes, but is it sufficiently complete, the justices wanted to know from lawyers representing Alaska and Connecticut.
"It's not the whole truth," Justice Ruth Bader Ginsburg said to John G. Roberts Jr., representing Alaska. Justice Ginsburg noted that Alaska's Internet site that identifies offenders and their whereabouts does not indicate those who have successfully completed rehabilitation programs. "The public is getting only the bad and not the good," Justice Ginsburg said. "Its judgment is being skewed."
The two cases, each one an appeal by the state from a ruling against it by a federal appeals court, had many similarities but raised separate constitutional questions. The answers will be broadly applicable across the country, because all 50 states have adopted sex offender registration and notification laws since New Jersey enacted the first one in 1994 and named it after Megan Kanka, 7, who was raped and murdered by a twice-convicted sex offender who lived across the street.
Attorney General Richard Blumenthal of Connecticut said that his state's law provided neither more nor less than the "fully accurate, concededly true public record information that the citizens of Connecticut and the other states need, deserve, and indeed demand."
The United States Court of Appeals for the Second Circuit, in Manhattan, ruled that Connecticut violated the offenders' constitutional right to due process by posting names and personal information on an Internet site that made no distinctions among the group and no effort to identify those who no longer presented a danger to the public. Half the states use undifferentiated registries of this type, while the others hold individual hearings to refine their listings and offer more nuanced information to the public.
The United States Court of Appeals for the Ninth Circuit, in San Francisco, found a different flaw in Alaska's statute, which also provides an undifferentiated registry. The court ruled that the law imposed additional punishment on those whose crimes predated its 1994 enactment, in violation of the constitutional prohibition on ex post facto legislation.
Nearly all the states made their laws retroactive when they enacted them in the mid-1990's, and these laws affect tens of thousands of people. California alone required 46,000 former offenders to register when its law took effect in 1996.
The Constitution's Ex Post Facto Clause prohibits new punishments for old crimes, so the question in the Alaska case, Smith v. Doe, No. 01-729, is whether the state's Sex Offender Registration Act imposes punishment. Mr. Roberts, arguing for the state, maintained that it does not. The law served a "legitimate regulatory objective" of providing information, he said, and was punitive neither in its intent nor its effect. "The purpose here is to inform," he said.
He met with objections from Justice Ginsburg and Justice Anthony M. Kennedy, who said the requirement that offenders register with the police four times a year was "very, very burdensome."
Justice Ginsburg said the law appeared punitive because it offered no way for rehabilitated offenders or those whose crimes were less serious to get off the list or to distinguish themselves from other offenders.
From the point of view of the offenders, the justice said, "it's punishment because we can't get out from under this demeaning regime." She added, "We're locked into it for life and it has a devastating effect on our lives." How did this law differ from the old practice of shaming people in the public square, she wondered.
Mr. Roberts, a Washington lawyer who is a Bush administration nominee for the federal appeals court here, said the difference lay in the purpose. "The purpose of the historic shaming penalties was not to inform, because everyone in the colonial village already knew," he said. "The purpose was to shame. Here, the purpose is to inform."
Solicitor General Theodore B. Olson argued both on Alaska's behalf and on the side of Connecticut. Mr. Olson said the laws were justified by a high rate of recidivism on the part of sex offenders. "People are asking their government, please allow us to know," he said.
Justice Kennedy asked him whether it would be appropriate to require sex offenders to display a special mark on their license plates.
That would be very different, Mr. Olson replied.
"I don't think it's very different," Justice Kennedy said.
Despite the justices' display of at least some skepticism toward the state's position, Darryl L. Thompson, the lawyer representing two former offenders who challenged Alaska's law, made little headway when his turn came. Mr. Thompson called the law "nothing other than tacking on a lifetime of probation." It was a "stigmatizing system," he said, to which Chief Justice William H. Rehnquist responded that perhaps a dangerous offender "deserves stigmatization."
Mr. Thompson said the Constitution required an "individual determination of present dangerousness." But Justice Antonin Scalia asked why it was "irrational or unconstitutional" to issue warnings about a category of people who were more likely than the general population to be dangerous. "Where is it written that you may warn only about those who will be dangerous?"
The argument in the Connecticut case, Connecticut Department of Public Safety v. Doe, No. 01-1231, picked up where the Alaska argument left off, with a defense by Attorney General Blumenthal of the state's undifferentiated listing of all sex offenders.
"Every person on that list is more likely than the average person to be dangerous," he said, adding that individual predictions of future dangerousness were unreliable and misleading. By contrast, he said, the state's list was "absolutely truthful, and leaves it to Connecticut citizens to make their own judgment."
But Shelley R. Sadin, representing the challengers to the law, said the state's undifferentiated list gave the "ineluctable message that people who are listed post a present danger" and amounted to a "government-imposed stigma." Individual hearings were necessary, she said.
The court's resistance to this idea was evident. Chief Justice Rehnquist asked whether a person on the F.B.I.'s "10 Most Wanted" list could demand a hearing on the ground that he did not belong on the list.
No, Ms. Sadin replied, because that list by definition had already made individual judgments about those included on it.
"But he hasn't been convicted," Justice Scalia said. "As far as anyone knows, he's totally innocent, up there without a hearing."
In a web-exclusive column, Linda Greenhouse answers readers' questions on Supreme Court rules and procedure. E-mail Ms. Greenhouse a question at . Please include your name, address and daytime telephone number; upon request names may be withheld.