Sex Offender Registries on the Net:

safety vs. privacy vs. punishment

At its birth, the Internet gave individuals great freedoms of speech and privacy

Lawrence Lessig

• State by State Directory of Sex Offender Registries (http://www.crimetime.com/SPguide.htm)
  maintained by Crime Time Publishing Company.
• Nationwide Registries & Links (http://www.parentsformeganslaw.com/html/links.lasso)
  maintained by Parents for Megan's Law, Inc.
• Sex Offender Registries (http://www.prevent-abuse-now.com/register.htm)
  maintained by Dr. Nancy Faulkner.

REGISTRY DISCUSSION POINTS

• Affect on reintegration into society
• Does this encourage offenders to "disappear"?

Report that when the Oregon Department of Motor Vehicle records were put onto a searchable web site "the residents of Oregon went ballistic". People did not like to have speeding tickets and drunk driving violations known by neighbours.

• Accuracy of information
• Additional punishment?
• Usefulness of information listed
• Appropriateness of information listed
• Treatment of juvenile sex offenders
• Recidivism

SUPREME COURT

Delbert W. Smith and Bruce M. Botelho, Petitioners v. John Doe I, et al

Respondents John Doe I and John Doe II were convicted of sexual abuse of a minor,an aggravated sex offense. John Doe I pleaded nolo contendere after a court determination that he had sexually abused his daughter for two years,when she was between the ages of 9 and 11;John Doe II entered a nolo contendere plea to sexual abuse of a 14-year-old child.Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of the Act,respondents are covered by it.After the initial registration,they are required to submit quarterly verifications and notify the authorities of any changes.Both respondents,along with respondent Jane Doe,wife of John Doe I,brought an action under Rev.Stat.§1979,42 U.S.C.§1983,seeking to declare the Act void as to them under the Ex Post Facto Clause of Article I,§10,cl.1,of the Constitution and the Due Process Clause of §1 of the Fourteenth Amendment. The United States District Court for the District of Alaska granted summary judgment for petitioners.In agreement with the District Court,the Court of Appeals for the Ninth Circuit determined the state legislature had intended the Act to be a nonpunitive,civil regulatory scheme;but,in disagreement with the District Court,it held the effects of the Act were punitive despite the legislature ’s intent.In consequence,it held the Act violates the Ex Post Facto Clause.Doe v.Otte ,259 F.3d 979 (2001).We granted certiorari.534 U.S.1126 (2002). (from page 8 slip opinion)

John Doe 1, after successful rehabilitation ,subsequently remarried,established a business,and was reunited with his family.Ibid .He was also granted custody of a minor daughter,based on a court ’s determination that he had been successfully rehabilitated....The court ’s determination (superior court family judge) rested in part on psychiatric evaluations concluding that Doe had “a very low risk of re-offending ” and is “not a pedophile.” ....permits the State publicly to label him a “Registered Sex Offender ” for the rest of his life..

This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. (page 9 slip opinion)

MR. ROBERTS. ... Now,what the Ninth Circuit's --Ninth Circuit thought was that it was publishing it on the Internet, that that made it punishment.But that's simply the most --most efficient and most economical way of making information available. (page 8)

QUESTION. But why isn't the evidence that this is --is a face plastered on the Internet,that in modern times that is the equivalent of the town square where you're shaming the bad actor?And here,you have a person's face,and you have only the bad information.You don't get the information that this person has successfully completed a rehabilitation course. (page 12)

QUESTION. In addition,on that page, what the viewer will see --you don't see on the page with the face any disclaimer,any statement that the State is not branding this person as dangerous.The State is simply making a statement that there was a conviction in the past. (page 13)

MR.ROBERTS:It conveys simply the truthful, objective information that this individual was convicted of this crime,and the public is free to take appropriate action if they think that's --that's appropriate under the circumstances.It is different from the historic shaming penalties because of the purpose.And again, purpose is the nearly controlling factor.The purpose of the shaming penalties was not to inform.Everybody in the colonial village knew the circumstances of the offense. The purpose was to shame.Here,the purpose is to inform. (page 13)

MR.THOMPSON: We believe that the Alaska Sex Offender Registration Act imposes punishment because it possesses three features which are classically considered to be punishment,and not like any other civil or regulatory measure this Court has seen before. First of all,the sanction attaches automatically and inescapably solely on a basis of a prior conviction,without any determination of present dangerousness at all..... (page 25)

MR.THOMPSON:But not all of them are.And that's the problem with this statute.It applies to those people that are demonstrably not dangerous. (page 29)

QUESTION:Your claim is an ex post facto claim, a retroactivity claim.Suppose this scheme,the Alaska scheme,did allow people --like the parties here --to say,I'm no longer dangerous.Here's the documentation of that.Take me off the list.Would you say,nonetheless, it's still punitive?Are you saying that even if someone made no showing at all of lack of dangerousness, this is --it would be ex post facto and therefore must fall? (page 27)

QUESTION: ... What is --is there any --do you have any response to this claim that the high recidivism rate itself supports the argument that,in fact,this is nothing but a safety information kind of measure,whereas broadcasting all criminal convictions would not be justified as having a good fit between the object and what the State was doing?Do you have any response to that? (page 48)

MR. ROBERTS: And the question is not whether you should have an individualized determination or a group determination. It is,is the group determination so irrational that you think the legislature was not really interested in preventing future harm,it was just doing this to punish? In fact,as Justice Ginsburg pointed out,this Court has never found a law with a civil regulatory purpose to violate the Ex Post Facto Clause. (page 52)

MR ROBERTS: .... There's no way in which this law can be regarded as too excessive.It simply makes available information that is already a matter of public record,and publicly available because criminal trials under our system have to be public. (page 54)

Adjudged to be REVERSED and REMANDED Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Scalia, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opininon, in which Breyer, J., joined.

Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. (page 2)

The determinative question is whether the legislature meant to establish “civil proceedings.”.... The Alaska Legislature ’ s intent was to create a civil, nonpunitive regime. (page 2)

In contrast to those punishments,the Act ’s stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. The fact that Alaska posts offender information on the Internet does not alter this conclusion. (page3)

The fact that Alaska posts the information on the Internet does not alter our conclusion.It must be acknowledged that notice of a criminal conviction subjects the offender to public shame,the humiliation increasing in proportion to the extent of the publicity.And the geographic reach of the Internet is greater than anything which could have been designed in colonial times.These facts do not render Internet notification punitive.The purpose and the principal effect of notification are to inform the public for its own safety,not to humiliate the offender.Widespread public access is necessary for the efficacy of the scheme,and the attendant humiliation is but a collateral consequence of a valid regulation. (page 16)

SOUTER,J.,concurring in judgment ...Its point,after all,is to send a message that proba bly would not otherwise be heard,by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning.Selection makes a statement,one that affects common reputation.....To me,the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise..... What tips the scale for me is the presumption of constitutionality normally accorded a State ’s law.That presumption gives the State the benefit of the doubt in close cases like this one,and on that basis alone I concur in the Court ’s judgment.

STEVENS, dissenting in No.01 –729 and concurring in the judgment in No.01 –1231. ....The Court ’s opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty....It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legisla- tion was enacted......

GINSBURG,J.,dissenting....What ultimately tips the balance for me is the Act ’s excessiveness in relation to its nonpunitive purpose.See Mendoza-Martinez ,372 U.S.,at 169.As respondents concede,see Brief for Respondents 38,the Act has a legitimate civil purpose:to promote public safety by alerting the public to potentially recidivist sex offenders in the community....The Act applies to all convicted sex offenders,without regard to their future dangerousness.And the duration of the reporting requirement is keyed not to any determination of a particular offender ’s risk of reoffending,but to whether the offense of conviction qualified as aggravated.....And meriting heaviest weight in my judgment,the Act makes no provision whatever for the possibility of rehabilitation:Offenders cannot shorten their registration or notification period,even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation....Satisfied that the Act is ambiguous in intent and puni- tive in effect,I would hold its retroactive application incompatible with the Ex Post Facto Clause,and would therefore affirm the judgment of the Court of Appeals.