Editor's Note: The Supreme Court is scheduled to hear two cases regarding Megan's Law on November 13th. Those cases are Connecticut Dept. of Safety v. John Doe and Smith et al. v. John
Doe, et al.
In 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act was enacted. This Act required all states to establish registration
programs for sex offenders by September 1997. The law is designed to protect children and was named after Jacob Wetterling, an eleven-year-old boy who was kidnapped in October 1989. Megan's Law, the first amendment to the Jacob Wetterling Crimes Against Children and Sexually
Violent Offenders Act, was passed in October 1996. Megan's Law mandated all states to develop notification protocols that allow public access to information about sex offenders in the community. Megan's Law was named after Megan Kanka, a seven-year-old girl who was raped
and murdered by a twice-convicted child molester living in her New Jersey neighborhood.
However, these laws have not been easily accepted by our society, and continue to face challenge after challenge in court. Courts also often dissent from each other in determining the constitutionality of such laws. Now, the Supreme Court is preparing to review these issues.
U.S. Supreme Court to Review State Decisions
On February 19, 2002, the U.S. Supreme Court announced that it will review the Ninth Circuit Court of Appeals decision which struck down the Alaska Sex Offender Registration Statute, on the grounds that it violated the Ex Post Facto Clause of the Constitution (which prevents a
state from increasing the punishment for a crime after the crime is committed). States are able to place restrictions on a defendant after the crime is committed and time is served as long as they are not punitive. With Megan's Law, the Ex Post Facto issue is whether an offender whose offense was committed prior to the enactment of the statute should be subject to the statute.
The Ninth Circuit held that the Alaska statute is punitive and thus violates the Ex Post Facto Clause. However, the Tenth Circuit held that the Utah statute is not punitive.
The Tenth Circuit Court noted that Internet notification represents merely a technological extension, not a sea change, in our nation's long history. It makes information public regarding criminal offenses, and the farther removed one is from a sex offender's community, the less likely one will be to have an interest in accessing the particular registry.
In contrast, the Ninth Circuit concluded that the Internet does not limit its dissemination to those to whom the particular offender may be of concern, so it is beyond that which is necessary to promote public safety. Also, by broadcasting the information about all past sex offenders,
the Internet exposes all registrants to worldwide ostracism that damages them personally and professionally and could make it impossible for the offender to find housing or employment.
One factor considered in determining whether a law is punitive is if it has historically been used as means of punishment. The Tenth, Ninth, Sixth, Third, and Second Circuit Courts have rejected the pedophile's analogy to shaming practices in Colonial times, because those practices, unlike Megan's Law, inflicted physical punishment. The person was either physically held up before his fellow citizens for shaming, or physically removed from the community.
The Ninth Circuit stated that the law amounted to punishment, since offenders must re-register our times per year for the rest of their lives and cannot escape the Act's grasp, no matter how demonstrable it may be that they pose no future risk to anyone. The court noted that with the exception of the Tenth Circuit, every sex offender registration and notification law that has been upheld by a Federal Courts of Appeals has tailored the provisions of the statute to the risk posed by the offender.
However, the Tenth Circuit rejected this analysis, stating that although other states have chosen to
incorporate more defined risk assessment mechanisms, a statute is not necessarily punitive because a state has not achieved a perfect fit between ends and means. Thus, the considerable assistance Internet notification will offer in the prevention, avoidance and investigation of these
serious and damaging crimes justifies the means employed.
The Right to Privacy and Due Process
The U.S. District Court for the District of New Jersey ruled on Dec. 6, 2001, that the disclosure of convicted sex offenders' home addresses on the Internet violates their constitutional right to privacy. In finding that the registry violated the sex-offenders' privacy rights with respect to
their home addresses, the court relied on the Paul P. cases, which examined similar law and concluded that 'registrants possess a 'non-trivial' privacy interest in the confidentiality of their precise home address which is entitled to constitutional protection.'
The court also held that the disclosure of the other information about sex offenders in the registry is not subject to a constitutional privacy right. The Court of Appeals for the Ninth Circuit had upheld Washington state's version of Megan's Law against a similar claim, in which plaintiffs failed to demonstrate the existence of a legitimate privacy interest in preventing the compilation
and dissemination of truthful information that is already ,albeit less conveniently, a matter of public record.
The Hawaii Supreme Court held in November 2001 that the Internet notification provisions of the Hawaii Statute violated the Due Process Clause of the Hawaii Constitution. This was because the statute did not allow for notice and a hearing in which the sex offender is given a meaningful opportunity to argue that he does not represent a threat to the community before disseminating
the information on the Internet.
Reasons for Preserving Megan's Law
Every state in the U.S. has now enacted a version of Megan's Law. The objective is to limit recidivism by alerting the public to potential threats to public safety posed by convicted sex offenders. The universal adoption of sex offenders' registration laws reflects the importance
of the interests they serve and the states belief in their efficacy. Approximately 30 states have already made registration and notification information available on the Internet. The Supreme Court should decide that the Alaska Statute does not violate the Ex Post Facto Clause.
The Court should give guidance in its decision so that lower courts can identify any constitutionally problematic provisions and leave the rest of the states' registration
and notification schemes in place.
The Tenth Circuit's decision is correct. Internet access to already available public information is merely an efficient way to organize and disseminate the important information needed to protect a community.
Those opposed to Megan's Law raise the concern of vigilantism. This is a minor issue compared to the violence that takes place against children when this information is not disseminated. Moreover, there is a caveat in bold type along with the information on each web site stating that the information should not be used to harass an offender and there are severe penalties for
doing so.
Any ostracism and scorn felt by a sex offender stems only from his own shame about the act or acts he has committed. As the Third Circuit stated, 'the sting' results from the dissemination of accurate public record information about their past criminal activities.' If this shame is such an obstacle in a sex offender's life, he should seek psychological counseling, as his victims must
if they expect to lead a normal life. There is no obligation for the state to keep public information inaccessible just to prevent a sex offender from feeling victimized.
Insofar as employment is concerned, it is up to particular employers who they want to hire. If the choice is between a non-sex offender or a sex offender, employers are entitled to information to determine the best candidates. If the job involves working with children in any capacity, there is a tremendous state interest in having the information readily available.
The Power of the Internet
The Internet provides an opportunity for great advancement in the protection of the children of America. Technology has added greater efficiency to the notification scheme with very little cost. The Utah statute, for example, was motivated by a request to quickly check approximately 100,000 volunteers submitted by the Boy Scouts. In the fast-paced and nomadic communities we
live in today, technology provides good citizens with a tool to help protect children. In addition, the registration and notification requirement scheme facilitates a widespread deterrent against sex crimes, since offenders presumably do not want the information disseminated.
Law enforcement must keep up with technology in order to stay ahead of the offenders. It has recently been reported that the Internet is to blame for a boom in child sex abuse. Information technology is exploding and if the 'information superhighway' cannot be used to help stop
crime and protect our children, but only can be used as a tool to facilitate crime, our children are in grave danger.
Opponents of Internet notification argue that it could foster a false sense of security. In other words, if a young family figures all the potential offenders in the community are listed on a web page, they may let their guard down around dangerous people not listed on the site, assuming they are safe. This only emphasizes the fact that we must educate and promote community awareness
along with registration and notification.
In addition, there should be severe and uniform penalties for non-compliance. This way offenders will be diligent in registering and will not be inclined to retreat to a state that is softer on sex offenders.
Ms. DiNubile is an associate with the law firm Bond Curtis in Berkeley, California. She has worked both as a corporate attorney and in civil litigation.
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