By Linda Greenhouse, The New York Times
WASHINGTON, -- After a paroled sex offender whose neighbors knew nothing of his violent past raped and murdered a 7-year-old girl who lived across the street in New Jersey, the State Legislature came up with what looked like a straightforward way to protect communities from similar danger: Require sex offenders to make their whereabouts known, and find a way to get that information to the public.
That was the first Megan’s Law, named for the victim, Megan Kanka, and eight years later there are Megan’s Laws in all 50 states. But little about this development has been straightforward or simple as it spread throughout the country, spurred by a federal law that threatened to withhold crime-fighting grants from states that did not pass Megan’s Laws.
The laws have been magnets for constitutional challenges, attacked by civil liberties groups and former offenders for imposing new punishment for old crimes and for violating principles of due process, double jeopardy and the right to privacy. As long as the states were winning the early court cases, the Supreme Court paid little attention, declining to hear challenges to New Jersey’s law and to one in New York. But when states started losing in the lower courts, they found the Supreme Court’s doors open.
Two Megan’s Law appeals will be argued before the court on Nov. 13, one brought by Alaska and the other by Connecticut. They raise distinct constitutional issues, and together could go far toward defining what limits apply and what justifications are needed when the government carves a single category of criminal offenders out of all others for especially burdensome treatment.
Are Megan’s Laws the equivalent of “a modern-day scarlet letter indelibly inscribed” on the foreheads of former sex offenders, regardless of the facts of a particular case, as lawyers for John Doe I and John Doe II, the former offenders who challenged the Alaska law, argue in their brief? Or are the laws a “common sense response to a serious national problem,” namely the “unique public threat” posed by those who “prey on the most vulnerable members of society,” as the Bush administration argues in defense of the Connecticut statute?
In the aftermath of mass terrorism, anthrax-laced mail and the serial murders of randomly chosen strangers, the uniquely threatening status of sexual predators may be debatable. But it is indisputable that violent sex crimes, particularly those with children as victims, have occupied a prominent place in the consciousness of the public, politicians and law enforcement officials.
According to the Justice Department, the number of people imprisoned for sex crimes from 1980 to 1994 grew at a faster rate than for any other category of violent crime. To cite one example of the intensity of public interest, the Web site on which Connecticut posted the whereabouts of convicted sex offenders - before the site was shut down by the court decision the state is now appealing - was visited more than 3 million times in its first five months in a state with a population of only 3.4 million people.
For several years, the Supreme Court’s docket has reflected the special attention that legislatures have been paying to sex offenders. Last term, in McKune v. Lile, the court split 5 to 4 in upholding the Kansas prison system’s sex offender treatment program, which requires inmates to reveal previously undisclosed crimes and face potential prosecution for them. The court has also upheld, within certain limits, state programs to keep violent sex offenders in extended civil confinement after the expiration of their criminal sentences.
Such programs, as well as the Megan’s Laws themselves, reflect the belief that sex offenders are much more likely than other criminals to repeat their crimes. In the current cases, the states and the federal government emphasize the recidivism threat, while a brief filed by the New Jersey public defender and the American Civil Liberties Union argues that properly interpreted data do not support that claim.
In fact, Megan’s Laws can make it more likely that sex offenders will commit new crimes, the brief argues, by depriving them of “stability and community support” and increasing the stress of their daily lives. “Life under Megan’s Law is a sentence to purgatory,” the brief says.
Ruling last year in the Alaska case, Smith v. Doe, No. 01-729, the United States Court of Appeals for the Ninth Circuit, in San Francisco, characterized the state’s law as “extremely burdensome” in requiring registration as often as four times a year. The court said that by posting the registry on the Internet, the state subjected offenders to “world-wide obloquy and ostracism.”
The Alaska Sex Offender Registration Act was challenged by two men who had completed their criminal sentences before the law’s 1994 passage.
They argued, and the Ninth Circuit agreed, that when applied to previous offenses, the law’s requirements amount to a new punishment that violates the Constitution’s prohibition against ex post facto legislation.
At issue before the Supreme Court is the validity of the Ninth Circuit’s premise that the law was punitive; if it does not impose punishment, it cannot violate the ex post facto clause of Article I, Section 9. The statue does not impose punishment but is “a regulatory law intended to help protect the public from future harm by collecting truthful information and making it available to those who choose to access it,” Alaska argues in its brief.
The Supreme Court’s ruling on the punishment question could also determine the outcome of other cases arguing that Megan’s Laws impose double jeopardy. A renewed challenge to New Jersey’s law on grounds of privacy as well as double jeopardy is now before the federal appeals court in Philadelphia. The double jeopardy argument fails if the law is seen as regulatory rather than punitive.
The issue in the Connecticut case, Connecticut Department of Public Safety v. Doe, No. 01-1231, is whether it violates due process for the state to post former offenders’ names and addresses on the Internet without first determining that each individual is still dangerous. The United States Court of Appeals for the Second Circuit ordered the public registry shut down until the state offers individual hearings on their current dangerousness.
Connecticut is one of 25 states that publicize the whereabouts of all those who have committed particular sex offenses. By contrast, other states make individual assessments of the potential dangerousness of each offender.
Connecticut’s attorney general, Richard Blumenthal, defends the state’s Sex Offender Registration Law in his brief by arguing that “the information conveyed is accurate and true” while individual predictions of dangerousness are inherently speculative and unreliable.
The state has an ally in the Reporters Committee for Freedom of the Press, a journalists’ group, which argues as a “friend of the court” that to declare unconstitutional the publicizing of accurate criminal records “could result in over-broad restrictions on the dissemination of truthful information.”