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Fairness of sex offender registration laws argued before Supreme Court

From William Mears

• Case docket: Smith v. Doe external link
• Case docket: Conn. Dept. of Public Safety v. Doe  (FindLaw, PDF)external link

WASHINGTON (CNN) -- Supreme Court justices questioned Wednesday the fairness of sex offender registration laws as they heard arguments in two cases.

At issue are whether such laws amount to a second punishment for those already convicted for their crimes, and whether the laws violate an offender's due process rights.

Every state has a so-called "Megan's law," named after Megan Kanka, a 7-year-old New Jersey girl who was kidnapped, raped, and murdered by a twice-convicted sex offender who lived across the street. These laws require convicted sex offenders and certain other types of felons to register with local authorities after they are released from prison .

Such information is typically available to the public through print and Internet sources.

In a case from Alaska, a man designated as John Doe alleges state law violates the constitutional guarantee against ex post facto, or punishment after the fact. The man was convicted of abusing his daughter.

In the second case, a man also designated as John Doe argues that Connecticut's sex offender registration law violates due process. That man was convicted of abusing a 14-year-old girl.

Both men were released in 1990, before the states passed their sex offender registration laws. They argue they had served their sentences and wanted to put their crimes behind them.

In the Alaska case, a federal appeals court ruled the registration law could only apply to those who committed their crimes after "Megan's law" was enacted. The state then appealed to the Supreme Court.

Alaska Attorney General Bruce Botelho called the registry "a public safety measure, with the effect of punishment. There was no deprivation of liberty" for John Doe, he argued.

The central question for the justices will be whether the state legislature intended the law to be regulatory or punitive in nature.

In the Connecticut case, the John Doe is arguing that sex offender registration laws violates due process because offenders are not allowed hearings to see if they are currently a danger to society before information about them and their crimes are made public.

He also notes the Connecticut registry does not differentiate between the seriousness of offenders' crimes.

Justices appeared to be at odds over the effect of such laws.

"There is a category of people who are presumptively not dangerous," said Justice David Souter, offering the example of someone convicted of public exposure, or of a 19-year-old having sex once with a 14-year-old.

Justice Stephen Breyer asked whether the state should allow hearings to give non-violent sex offenders a forum to prove they are not a danger to society, and therefore do not deserve to be on the offender registry. "Is there a process by which they are exempted?"

Souter responded, "One might say there ought to be a way out and there is none."

Supporters of these registration laws say citizens deserve to know if convicted sex offenders are living in their neighborhoods, and argue registration laws are not unfair, because the convictions are already a matter of public record.

"Why can't the state accede to the public's wishes?" asked Justice Antonin Scalia, and allow citizens to view the registry and make conclusions on a particular sex offender.

Opponents of the law call it a "government-imposed stigma" preventing those convicted from moving on with their lives after serving their time. They say such laws represent an overly intrusive invasion of privacy, since other criminal records are not subject to such readily available public scrutiny.

With the Supreme Court agreeing to hear these cases, many prosecutors hope to get a legal road map to help them steer around troublesome provisions. Yet most legal experts do not expect justices to completely throw out the validity and legality of sex offender registration laws.

The cases are Smith v. Doe, docket No. 01-729 and Connecticut Dept. of Public Safety v. Doe, docket No. 01-1231.

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