First Two Cases of Sex Offender Internet Registries Heard By US Supreme Court
On November 13, 2002, the
United States Supreme Court heard oral argument in two important cases involving
constitutional challenges to sex offender Internet registry laws. These are the
first cases involving constitutional challenges to Megan's Law that have been
taken up by the Supreme Court. In the first case, Smith v. Do3, the Court heard
argument on whether Alaska's sex offender registration and notification law, and
the implementation of community notification through the Internet, imposes
punishment in violation of the Ex Post Facto Clause of the United States
Constitution. Smith, et al., No. 01-729. The attorney representing the named
officials from the State of Alaska and the Solicitor General, arguing on behalf
of the United States, argued the position that Alaska's Megan's Law is a
remedial measure designed to protect the public, not to punish offenders, and
therefore should not be considered punishment. The challengers countered by
arguing that the posting of their criminal history and personal information on
an Internet registry available to the general public, and the additional burdens
of registration, constitute a form of punishment which violates the
constitutional rights of those offenders who committed their crimes prior to the
enactment of the law.
The second case, Connecticut Department of Public Safety v. Doe, involves a
challenge to Connecticut's Megan's Law, which had been held unconstitutional on
due process grounds. Connecticut Department of Public Safety, et al. v Doe, et
al., No. 01-1231. Connecticut's law does not include any tiering or risk
assessment to differentiate between offenders for purposes of Internet posting,
but rather makes available on the Internet pertinent information about all
individuals who have committed any of the sex offenses enumerated in the law.
The Solicitor General and Attorney General of Connecticut argued that, because
the registry involves only the posting of accurate, publicly available
information such as sex offender criminal records, there is no need to have an
individualized hearing on risk of re-offense before posting sex offender
registry information on the Internet. The challengers countered with arguments
that, although the Connecticut registry does not distinguish between convicted
sex offenders based on dangerousness, the constitutional right to due process
requires that these individuals must be afforded a hearing to determine whether
they are currently dangerous prior to inclusion on the state's ex offender
Internet registry. The Supreme Court's rulings in these cases in expected to
establish needed precedent which should provide all states with clear guidance
in operating and maintaining sex offender registry information available to the
public over the Internet.