"THE FUTURE IS NOW"
Minority Report and the Punishment of
Defendants for Crimes They Have Yet to Commit
May 5, 2004
Copyright (c) 2003 The Harvard Law Review Association
Harvard Law Review
117 Harv. L. Rev. 327
THE SUPREME COURT, 2002 TERM: LEADING CASES: I. CONSTITUTIONAL LAW: 5. SEX OFFENDER REGISTRATION
... Last Term, in two cases decided on the same day, the Court addressed challenges to sex offender registries required by state "Megan's Laws. ... First, in terming the registry statutes regulatory, the Court refused to recognize fully the shaming and stigma that accompany sex offender registration. ... Next, Chief Justice Rehnquist reasoned that Connecticut's sex offender registry does not deprive registrants of their procedural due process rights because the statute does not speculate regarding their level of dangerousness; rather, the registration merely indicates that the listed individuals had been convicted of a triggering crime. ... Writing for a unanimous panel, Judge Reinhardt reasoned that, regardless whether the state legislature intended its sex offender registry to be punitive, Alaska's Megan's Law must be considered punitive for purposes of the Ex Post Facto Clause. Applying the seven-factor test articulated in Kennedy v. Mendoza-Martinez to determine whether the effect of a statute is penal or civil, Judge Reinhardt concluded that four of the seven factors indicated that Alaska's sex offender registry should be deemed punitive. ... " First, the Court needed to determine whether the legislature intended to enact a punitive or a regulatory, nonpunitive scheme. ... Just as they are overinclusive of offenders in the registry, both Connecticut's and Alaska's statutes are overly expansive in granting access to registrant information via the Internet. ...
5. Sex Offender Registration. - The Supreme Court has addressed the rights of sex offenders with increasing frequency in recent years, each time upholding statutes that abridge their rights. n1 Last Term, in two cases decided on the same day, the Court addressed challenges to [*328] sex offender registries required by state "Megan's Laws." n2 In Connecticut Department of Public Safety v. Doe, n3 the Court held that Connecticut's statute requiring sex offenders to register without determining whether the individuals are "currently dangerous" does not violate the Due Process Clause of the Fourteenth Amendment. n4 In Smith v. Doe, n5 meanwhile, the Court held that Alaska's retroactive registration requirement does not violate the Ex Post Facto Clause because the registry is regulatory rather than penal. n6 In these cases, the Court demonstrated in two distinct ways a striking unwillingness to grapple with the practical implications of sex offender registries. First, in terming the registry statutes regulatory, the Court refused to recognize fully the shaming and stigma that accompany sex offender registration. Second, the Court overlooked concerns about the unnecessarily broad scope of the statutes with respect to both who is required to register and who may access the registry.
Connecticut's version of Megan's Law requires a convicted sex offender to register with the Department of Public Safety within three days of being released - providing, among other information, his or her name, address, criminal record, and photograph. n7 The compiled information is then posted on a searchable website, n8 and registrants are required to update the information periodically. n9 John Doe, a convicted sex offender, challenged the registration requirement as a violation of procedural due process. n10 Contending that he no longer posed [*329] a threat to public safety, Doe claimed that he was unconstitutionally stigmatized by the registration requirement and should be afforded a hearing to demonstrate that he no longer presented a danger to the public. n11
On a summary judgment motion, the district court enjoined the operation of Connecticut's sex offender website on the theory that the statute's failure to distinguish between convicted sex offenders who continue to pose a danger and those who do not violated the plaintiff's right to procedural due process. n12
The Second Circuit affirmed. n13 Writing for a unanimous panel, Judge Sack n14 found that, despite the website's disclaimer, the registry "implies that persons listed on the registry are particularly likely to be currently dangerous," n15 making it "too blunt" n16 an instrument given the "extensive and onerous" registration requirements. n17
The Supreme Court reversed. n18 Writing for the majority, Chief Justice Rehnquist n19 began by quoting language from McKune v. Lile, n20 noting the serious threat posed by sex offenders and their unusually high tendency to recidivate. n21 Next, Chief Justice Rehnquist reasoned that Connecticut's sex offender registry does not deprive registrants of their procedural due process rights because the statute does not speculate regarding their level of dangerousness; rather, the registration merely indicates that the listed individuals had been convicted of a triggering crime. n22 Accordingly, the Court found it unnecessary to perform a prolonged analysis of its procedural due process precedents because, under Connecticut's statute, the plaintiff was trying to refute an allegation of dangerousness that had never been leveled against him. n23 Finally, Chief Justice Rehnquist was careful to note that, because the plaintiff raised only a procedural due process claim, the Court could [*330] not properly address a potentially more apposite substantive due process claim. n24
In a brief concurring opinion, Justice Scalia contended that, even if Connecticut's Megan's Law were deemed to implicate a liberty interest, the state was not required to provide sex offenders with an individualized hearing to assess dangerousness. n25 Justice Scalia argued that statutes can properly abrogate liberty interests that are not "so fundamental as to implicate so-called "substantive' due process." n26
Justice Souter concurred, noting that the Court's holding did not foreclose challenges to the Connecticut statute on substantive due process or equal protection grounds. n27 Addressing a possible equal protection claim, he cataloged the various types of offenders whom courts may partially or wholly exempt from the statute's requirements. n28 He concluded that Connecticut "thus recognizes that some offenders ... are not dangerous to others in any way justifying special publicity on the Internet" and that this legislative decision demonstrated - contrary to the state's protestations - that courts can differentiate between dangerous and nondangerous offenders. n29 Accordingly, Justice Souter reasoned that the Connecticut legislature's distinctions between offenders who may be exempted and those who may not "is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause." n30
Justice Stevens concurred in the judgment. n31 He began by acknowledging that sex offender registration is a punitive rather than a civil measure and therefore affects a constitutionally protected liberty interest. n32 Nevertheless, he concluded that the registration requirements constituted a "permissible component of the punishment for this category of crimes" and did not violate procedural due process "so long as a defendant is provided a constitutionally adequate trial." n33
[*331] The dispute in Smith v. Doe arose out of the Alaska Sex Offender Registration Act. n34 The Act, which substantially resembles the provisions of Connecticut's statute, n35 was enacted in 1994. n36 John Doe I pled nolo contendere to sexually abusing a minor - his daughter - in 1985. n37 In 1984, John Doe II pled nolo contendere to sexually abusing a fourteen-year-old child. n38 The two John Does, along with John Doe I's spouse, brought an action claiming that the sex offender registration requirements violated the Ex Post Facto Clause. n39
The dispute endured a circuitous procedural path. n40 The district court granted a preliminary injunction enjoining the public notification component of the Act, though the plaintiffs would still be required to register. n41 In 1998, both parties moved for summary judgment, and a different district court judge granted summary judgment for the state. n42
The Ninth Circuit reversed and remanded. n43 Writing for a unanimous panel, Judge Reinhardt n44 reasoned that, regardless whether the state legislature intended its sex offender registry to be punitive, Alaska's Megan's Law must be considered punitive for purposes of the Ex Post Facto Clause. n45 Applying the seven-factor test articulated in Kennedy v. Mendoza-Martinez n46 to determine whether the effect of a statute is penal or civil, Judge Reinhardt concluded that four of the seven factors indicated that Alaska's sex offender registry should be deemed punitive. n47 Accordingly, the court ruled that only sex offenders [*332] who committed their crimes after the statute's enactment could be forced to comply with the registry. n48
The Supreme Court reversed and remanded. n49 Writing for the majority, Justice Kennedy n50 held that, because the Act is a civil regulatory requirement, its retroactive application does not violate the Ex Post Facto Clause. n51 The Court noted that the question whether sex offender registry laws violate the Ex Post Facto Clause was one of first impression for the Court. n52 Despite the novel question presented by this type of statute, Justice Kennedy asserted that the majority's two-step inquiry was "well established." n53 First, the Court needed to determine whether the legislature intended to enact a punitive or a regulatory, nonpunitive scheme. n54 Second, if the legislature intended to enact a civil scheme, further inquiry into the Act's actual effects would be necessary, though "only the clearest proof" of punitive effects would be sufficient to overcome the deference afforded legislative intent. n55
First, the Court found that, despite some ambiguity in the Alaska legislature's intent, the statute was intended to be nonpunitive. n56 The Court then determined that the legislation's effects did not meet the clearest proof standard for negating legislative intent, n57 basing its analysis on the five Mendoza-Martinez factors most relevant to this particular regulatory scheme. n58 Although recognizing that sex offender registries may bear an "initial resemblance" to colonial shaming punishments, the Court concluded that the analogy is inapt: "The stigma of Alaska's Megan's Law 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." n59 Terming the argument [*333] that the statute renders sex offenders "completely unemployable" mere "conjecture," the Court rejected the Ninth Circuit's comparison of the registration scheme to "probation or supervised release." n60 He then noted that deterrence of crime is a traditional aim of both civil and criminal schemes and is rationally related to nonpunitive initiatives. n61 Finally, the Court argued that the Act's requirements are not excessive, given the high rates of recidivism among sex offenders, the length of time that often lapses between offenses, and the "passive" nature of the Internet registry notification system. n62
In a brief concurring opinion, Justice Thomas contended that ""there is no place for [an implementation-based] challenge' in our ex post facto jurisprudence." n63 Rather, a statute should be judged criminal or civil solely by its terms. n64 Accordingly, Justice Thomas argued that the majority erred in considering the Internet dissemination aspect of the plan because the statute itself does not dictate the means by which the registry is to be made public. n65
Justice Souter concurred only in the judgment. n66 Justice Souter would, like the majority, apply the traditional two-step inquiry in determining whether a statute is criminal or civil but believed that the clearest proof standard should apply only "when the evidence of legislative intent clearly points in the civil direction." n67 Justice Souter found that Alaska's Act, which would likely result in treatment resembling penal sanctions, created no such situation. n68 Nonetheless, Justice Souter viewed the Act's civil elements as standing in "rough equipoise" with its punitive dimensions n69 and ultimately upheld the Act due to the presumption of constitutionality accorded state legislation. n70
Justice Stevens dissented, contending that sex offender registries have "a severe stigmatizing effect" on registrants and therefore implicate offenders' liberty interests. n71 Justice Stevens argued that the registries [*334] are penal, n72 and he therefore concluded that the Ex Post Facto Clause prohibits supplementing the punishment of offenders who were tried and convicted before the legislation's enactment. n73
Justice Ginsburg also dissented. n74 Like Justice Souter, Justice Ginsburg would not have applied the "clearest proof" standard when legislative intent is unclear. n75 She would instead have applied the Mendoza-Martinez factors "neutrally," and would thus have found that the effect of the Act is punitive. n76 Justice Ginsburg noted that the registry resembles historical shaming punishments and that the "aggressive public notification of their crimes" would expose offenders to "profound humiliation and community-wide ostracism." n77 She also found it telling that the legislation's "touchstone" is a prior bad act, rather than current dangerousness; this, she contended, indicates that the Act is designed to punish previous conduct. n78 The most determinative of the Mendoza-Martinez factors, under Justice Ginsburg's analysis, was the Act's excessiveness given its nonpunitive purposes. n79 Finally, Justice Ginsburg criticized the Act's failure to make any "provision whatever for the possibility of rehabilitation." n80
In Connecticut Department of Public Safety and Smith, the Court demonstrated an unwillingness to engage the practical implications of sex offender registries. In erroneously construing the statutory schemes at issue as nonpunitive, the Court trivialized the significant public shaming and vigilante threats that result from dissemination of registrant information. In addition, the Court turned a blind eye to the excessive reach of the registries, both in terms of who must register and who may access such information. Courts should focus upon the practical realities of such schemes as they consider the future litigation that will doubtless arise regarding sex offender registries.
Sex offender registries - as forcibly argued by Justices Stevens and Ginsburg in their dissenting opinions in Smith and by Judge Reinhardt for the Ninth Circuit - are rightly categorized as punitive in effect. n81 Justice Kennedy's analysis under the second step of the two-step ex [*335] post facto inquiry - and particularly under the traditional punishment, affirmative restraint, and excessiveness prongs - illustrates the Court's unwillingness to confront the practical implications of these registries. Justice Kennedy disavowed the notion that registries are shaming measures, even as he acknowledged that the registries resemble colonial shaming practices that were viewed as punitive. n82 Although Justice Kennedy was correct in characterizing the shaming associated with sex offender registries as ancillary, the effect of such shaming is nevertheless punitive. Indeed, Professor Toni Massaro has argued that in some sense modern shaming practices compare unfavorably to colonial practices: "Even the Puritans, with their severe methods of exploiting social embarrassment to curb crime, acted in part out of concern for the offender's soul. Modern-day shaming, in contrast, lacks this arguably benign motive and social meaning." n83
Justice Kennedy likewise ignored the practicalities of these statutes in concluding that Alaska's laws neither impose an affirmative restraint on the registrants nor are excessive in relation to their purpose. Despite Justice Kennedy's protestations to the contrary, n84 it is hardly conjecture that sex offender registries lead to harassment of sex offenders. Reports abound of neighbors harassing sex offenders in their communities because of information gleaned from the registries. n85 Community notification, moreover, has been linked to a number of suicides among sex offenders. n86 A statute that drives even a small number of registrants to commit suicide is properly deemed excessive when other remedies are available.
[*336] Additionally, the Court's failure to consider realistically the extent to which the registries cause sex offenders to be treated as pariahs in their communities n87 may unwittingly prompt an increase in recidivism - the very opposite of their intended effect. n88 As Caroline Louise Lewis has noted, there is "a growing consensus in the psychotherapy community that community notification measures exacerbate the feelings of isolation and depression which may have led sex offenders to offend initially." n89 The distinct prospect of creating a danger to public safety - the very evil these statutes were intended to curtail - militates in favor of banning, or at least curbing access to these registries.
The Court likewise gave short shrift to the practical implications of Megan's Laws in its finding that the Connecticut statute was not so broad as to violate the Due Process Clause. Because the Chief Justice limited his analysis to the procedural due process claim before the Court, n90 Megan's Laws remain open to overbreadth challenges - on the basis of both who is required to register and who may access the registration information - on substantive due process grounds. n91 Megan's Laws are particularly vulnerable to challenge on the basis of their predictive qualities. Although Chief Justice Rehnquist contended that Connecticut's registry contains no assessment of future dangerousness, his emphasis on the supposedly astronomical recidivism rates among sex offenders belies that contention. n92 This preventive dimension of the sex offender registries raises serious concern regarding the wisdom of permitting the government to predict who will likely commit crimes in the future and empowering the government to act on those predictions. n93 Although many commentators have compared sex [*337] offender registries to the scarlet letter, n94 perhaps the more telling (and alarming) comparison comes not from Nathaniel Hawthorne but from Steven Spielberg. In his recent film Minority Report, n95 the "Department of Pre-Crime" in Washington, D.C., used three "pre-cogs" - humans capable of seeing into the future and predicting homicides - to prevent the murders from ever occurring. Unlike Spielberg's dystopic future, admittedly, sex offender registries contain an element of "post-crime" that animates the pre-crime assessment. Nonetheless, permitting legislative and judicial pre-cogs to impose requirements on citizens on the basis of what they might do in the future is an alarming trend. n96 This concern carries particular weight in the sex offender registry context, given that some commentators question whether sex offenders truly have higher rates of recidivism than other criminals. n97
The preventive dimension of Megan's Laws gives rise to a subsidiary overbreadth challenge available to those who have undergone rehabilitative programs in prison or elsewhere. n98 Although the judiciary - at Congress's behest - has jettisoned the rehabilitative ideal in criminal sentencing, n99 courts nonetheless recognize the possibility of [*338] rehabilitation when making other decisions. For instance, Doe I, a plaintiff in Smith, entered a plea of nolo contendere after a court found that he sexually abused his daughter. n100 Upon his release from prison, however, he was granted custody of his daughter based on a judicial determination that he had been rehabilitated. n101 One must question: if Alaska finds John Doe I to be such a danger to children, why is it willing to grant him custody of his minor daughter? This inconsistency raises another troubling element of Megan's Laws: the registries are justified on a public safety basis, which presupposes that sex offenders are unknown to their victims, yet a large percentage of child molestation occurs within families. n102 Indeed, situations involving a pedophilic stranger luring neighborhood children into his house with the promise of seeing his new puppy - an image elevated to the iconic in part because of the media fascination with the abduction and murder of Megan Kanka n103 - appear to account for a relatively small percentage of child molestation.
Just as they are overinclusive of offenders in the registry, both Connecticut's and Alaska's statutes are overly expansive in granting access to registrant information via the Internet. As the district court noted in Doe v. Lee: "Connecticut's web site makes more information available to more people than is necessary to achieve its public safety and enforcement goals ... . The web site makes information available to millions of people who will never come to the state or otherwise come into contact with a registrant." n104 Although it is true that the registries cannot serve their stated purpose without disseminating registrant information, it is also true that this information need only be [*339] given to those with whom the registrant could conceivably have contact. That these websites are "passive" notification systems n105 fails to address the point that anyone with access to the Internet is privy to registrant information, even if some additional effort may be required to access the information. n106
In Connecticut Department of Public Safety and Smith, the Supreme Court continued its "jurisprudence of prevention" with respect to sex offenders. That sex offenders should be singled out for such drastic treatment is hardly surprising: no group in modern society is more despised. n107 When New York state legislators debated their own Megan's Law, sex offenders were termed "depraved" and "animals" and the "human equivalent of toxic waste." n108 Within the hierarchy of prisons, moreover, sex offenders in general - and child molesters in particular - are considered the lowest of the low. n109 In the litigation that will surely ensue regarding sex offender registries, one hopes that the Court will ground its analysis more firmly in the everyday realities of this disdained group. Only by engaging with the practical implications of Megan's Laws can the Court ensure that the Constitution maintains its integrity by protecting even the nation's most loathed citizens.
n1. See, e.g., McKune v. Lile, 536 U.S. 24, 29 (2002) (plurality opinion) (holding that requiring convicted sex offenders to confess to past crimes as a condition of participating in a rehabilitation program did not violate the Fifth Amendment); Kansas v. Hendricks, 521 U.S. 346, 350-51 (1997) (deeming constitutional the civil confinement of "sexually violent predators" suffering from a "mental abnormality" or a "personality disorder" who had already been released from prison).
n2. The term "Megan's Laws" refers to statutes that require certain sex offenders to register biographical data with state law enforcement agencies. All fifty states have passed some version of Megan's Law at the behest of Congress, which predicated some federal funding on the creation of sex offender registries. "Megan's Laws" derive their names from Megan Kanka, a seven-year-old girl who was molested and killed by a released sex offender who was her neighbor. See generally Daniel L. Feldman, The "Scarlet Letter Laws" of the 1990s: A Response to Critics, 60 Alb. L. Rev. 1081 (1997).
n3. 123 S. Ct. 1160 (2003).
n4. Id. at 1163.
n5. 123 S. Ct. 1140 (2003).
n6. Id. at 1154.
n7. See Conn. Gen. Stat. 54-250 to -254 (2003).
n8. The website's homepage contains the following warning:
The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. The Department of Public Safety has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.
Doe v. Dep't of Pub. Safety, 271 F.3d 38, 44 (2d Cir. 2001) (quoting Connecticut's website, http://www.state.ct.us/dps/Sex Offender Registry.htm) (internal quotation marks omitted).
n9. See id. at 43.
n10. Doe v. Lee, 132 F. Supp. 2d 57, 62 (D. Conn. 2001).
n11. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1164-65.
n12. Lee, 132 F. Supp. 2d at 59.
n13. Dep't of Pub. Safety, 271 F.3d at 42.
n14. Judges Cabranes and Pooler joined Judge Sack's opinion.
n15. Dep't of Pub. Safety, 271 F.3d at 50.
n16. Id. at 41.
n17. Id. at 57.
n18. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1165.
n19. Justices O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer joined Chief Justice Rehnquist's opinion.
n20. 536 U.S. 24, 32 (2002) (plurality opinion) ("Sex offenders are a serious threat in this Nation.").
n21. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1163.
n22. See id. at 1164-65. Chief Justice Rehnquist also noted that the conviction itself was a fact that "a convicted offender has already had a procedurally safeguarded opportunity to contest." Id. at 1164.
N23. See id. at 1164.
n24. Id. at 1165.
n25. Id. (Scalia, J., concurring).
n26. Id. Justice Scalia reasoned: "[A] convicted sex offender has no more right to additional "process' enabling him to establish that he is not dangerous than ... a fifteen-year-old has a right to "process' enabling him to establish that he is a safe driver." Id.
n27. Id. at 1165-66 (Souter, J., concurring). Justice Ginsburg joined Justice Souter's opinion.
n28. See id. at 1166. The Connecticut statute gives courts some discretion to exempt an offender altogether or to restrict registry information when, for instance, an eighteen-year-old is convicted of engaging in sexual intercourse with a fifteen-year-old. See Conn. Gen. Stat. 54-251(b) (2003).
n29. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1166 (Souter, J., concurring).
n31. Smith, 123 S. Ct. 1140, 1156 (2003) (Stevens, J., dissenting in Smith v. Doe and concurring in the judgment in Connecticut Department of Public Safety v. Doe). Justice Stevens wrote one opinion, officially connected to Smith, that was also intended to apply to Connecticut Department of Public Safety. Id.
n32. Id. at 1157-58.
n33. Id. at 1158.
n34. Alaska Stat. 12.63.010 (Michie 2002).
n35. The Alaska statute requires the registrant to be photographed and to provide the following information: name, date of birth, address, place of employment, and specified information about the sex-related conviction. See id.
n36. Smith, 123 S. Ct. at 1145.
n37. Doe I v. Otte, 259 F.3d 979, 983 (9th Cir. 2001).
n39. Smith, 123 S. Ct. at 1146.
n40. For a more detailed summary of the procedural history of the case, see Otte, 259 F.3d at 983.
n41. Rowe v. Burton, 884 F. Supp. 1372, 1388 (D. Alaska 1994).
n42. Otte, 259 F.3d at 983.
n43. Id. at 995.
n44. Judges D.W. Nelson and Thomas joined Judge Reinhardt's opinion.
n45. Otte, 259 F.3d at 995.
n46. 372 U.S. 144 (1963). The seven factors are:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment - retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable to it, and whether it appears excessive in relation to the alternative purpose assigned.
Id. at 168-69 (citations omitted).
n47. See Otte, 259 F.3d at 987-93.
n48. Id. at 995.
n49. Smith, 123 S. Ct. at 1154.
n50. Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas joined Justice Kennedy's opinion.
n51. Smith, 123 S. Ct. at 1154.
n52. Id. at 1146.
n54. See id. at 1146-47 (citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).
n55. Id. at 1147 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)) (internal quotation marks omitted).
n56. Id. at 1149. Pointing to the plain language of the text, Justice Kennedy noted that the Act's objective is to "protect the public from sex offenders." Id. at 1147 (quoting 1994 Alaska Sess. Laws ch. 41, 1) (internal quotation marks omitted).
n57. Id. at 1154.
n58. See id. at 1149. The factors Justice Kennedy considered most relevant were whether the scheme: "has been regarded in our history and traditions as punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." Id.
n59. Id. at 1150. Justice Kennedy determined that "the fact that Alaska posts the information on the Internet does not alter our conclusion," noting that widespread dissemination is necessary for effective implementation of the regulatory scheme. Id.
n60. Id. at 1151 (emphasis omitted).
n61. See id. at 1152.
n62. Id. at 1153.
n63. Id. at 1154 (Thomas, J., concurring) (alteration in original) (quoting Seling v. Young, 531 U.S. 250, 273 (2001) (Thomas, J., concurring in the judgment)).
n66. Id. at 1154 (Souter, J., concurring in the judgment).
n67. Id. at 1155.
n68. Id. at 1156 (noting that "widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts").
n71. Id. at 1157 (Stevens, J., dissenting).
n72. Id. at 1158. In addition, Justice Stevens cited three factors that prompted him to categorize the statutes as penal: "The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals." Id. at 1157.
n73. Id. at 1158.
n74. Id. at 1159 (Ginsburg, J., dissenting). Justice Breyer joined Justice Ginsburg's dissent.
n79. See id. at 1160.
n81. See id. at 1157-58 (Stevens, J., dissenting); id. at 1159-60 (Ginsburg, J., dissenting); Doe I v. Otte, 259 F.3d 979, 993-94 (9th Cir. 2001).
n82. See Smith, 123 S. Ct. at 1150.
n83. Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1927 (1991).
n84. See Smith, 123 S. Ct. at 1151-52.
n85. See, e.g., David Ammons, Released Sex Offender Hounded in Northwest, L.A. Times, Aug. 1, 1993, at A18; Daniel Golden, Sex-Cons, Boston Globe, Apr. 4, 1993 (Magazine), at 13 (reporting that a sex offender's eighty-two-year-old sister had rocks thrown at her); Robert Hanley, Shots Fired at the House of Rapist, N.Y. Times, June 17, 1998, at B1; Jon Nordheimer, "Vigilante" Attack in New Jersey Is Linked to Sex-Offenders Law, N.Y. Times, Jan. 11, 1995, at A1 (reporting that an intruder pummeled a man whom he mistakenly believed to be a "child molester"). It is striking that Connecticut recognizes that the information in its registry could be used to further vigilante justice, as evidenced by this warning on its website: "Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution." State of Connecticut Department of Public Safety, Sex Offender Registry, http://www.state.ct.us/dps/sor.htm (last visited Sept. 25, 2003); see also Conn. Gen. Stat. 54-258a (2003) (requiring posting of this warning when public access to information in the registry is granted).
n86. See, e.g., Todd S. Purdum, Death of Sex Offender Is Tied to Megan's Law, N.Y. Times, July 9, 1998, at A16 (discussing a sex offender in California who committed suicide); Suicide Is Recalled As Maine Revisits Megan's Law, Wash. Post, Feb. 17, 1998, at A2 (reporting that a sex offender left a taped message indicating that he could not "live in a world where there was no forgiveness").
n87. See Peter Davis, The Sex Offender Next Door, N.Y. Times, July 28, 1996, 6 (Magazine), at 43 (comparing the treatment of sex offenders to that of lepers).
n88. See Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 Harv. C.R.-C.L. L. Rev. 89, 93 (1996) (arguing that community notification laws might "have the brutally ironic effect of achieving what they are enacted to prevent - an increased likelihood that released, unrehabilitated sex offenders will reoffend").
n90. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1165.
n91. Justice Souter emphasized this point in his concurring opinion in Connecticut Department of Public Safety. See id. (Souter, J., concurring).
n92. Conn. Dep't of Pub. Safety, 123 S. Ct. at 1163. Although Connecticut's website likewise indicates that it does not assess the danger level of registrants, it seems fair to conclude that most visitors to the website would deem all of the registrants dangerous. Indeed, the very phrase "dangerous sex offender," at least in the popular imagination, borders on the redundant. One wonders whether the court that ordered a convicted child molester to have signs on both sides of his car and on the door to his residence reading "DANGEROUS SEX OFFENDER - NO CHILDREN ALLOWED," see State v. Bateman, 771 P.2d 314, 316 (Or. Ct. App. 1989), would have elicited an appreciably different response if the sign had merely read "SEX OFFENDER."
n93. See Edward P. Richards, The Jurisprudence of Prevention: The Right of Societal Self-Defense Against Dangerous Individuals, 16 Hastings Const. L.Q. 329, 386 (1989) (arguing that American courts increasingly deploy the rhetoric of disease and prevention to justify the curtailment of rights, and warning that "from an individual rights perspective, the most troubling scenario is the evolution of a model that uses public health and safety rhetoric to justify procedures that are, in essence, punishment and detention").
n94. See, e.g., Daniel L. Feldman, The "Scarlet Letter Laws" of the 1990s: A Response to Critics, 60 Alb. L. Rev. 1081, 1105 (1997); Jon A. Brilliant, Note, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357; cf. Dan Connally, Note, When Hester Prynne Drives Drunk: An Examination of the Constitutional Challenges to the Requirement of a "Scarlet Bumper Sticker" as a Condition of Probation on DUI Offenses, 41 Okla. L. Rev. 529 (1988).
n95. Minority Report (Twentieth Century Fox & Dreamworks 2002).
n96. For example, at least one court has required a man arrested for masturbating in a public restroom to register as a sex offender. See State v. Cameron, 916 P.2d 1183, 1184 (Ariz. Ct. App. 1996). Articulating a vision of masturbation as a gateway sex crime, the court reasoned: "It would not have been irrational for the legislature to have believed that people who engage in public masturbation may engage in more serious sex crimes, and that knowledge of such activities might be useful to the police in solving those crimes." Id. at 1185. The new "jurisprudence of prevention" also raises the specter of what disfavored group will next be targeted actuarially. See Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775, 819 (1997) (questioning "the limits of the preventive state" in the context of Kansas v. Hendricks, 521 U.S. 346 (1997)).
n97. See, e.g., Nancy Hobbs, The Bogeyman May Be Closer Than You Think: Pedophiles Often Know Victims, Psychologists Say, Salt Lake Trib., Apr. 28, 1997, at D2 (citing a Utah Department of Corrections finding that the recidivism rate for sex offenders in Utah was considerably lower than for offenders as a whole).
n98. It should be noted that the success of an overbreadth challenge on the basis of rehabilitation is predicated on a court's finding that the registries do, in fact, attempt to predict future dangerousness.
n99. See Jo<?extend ascii 235>lle Anne Moreno, "Whoever Fights Monsters Should See to It That in the Process He Does Not Become a Monster": Hunting the Sexual Predator with Silver Bullets - Federal Rules of Evidence 413-415 - and a Stake Through the Heart - Kansas v. Hendricks, 49 Fla. L. Rev. 505, 530 (1997) ("During the 1970s and 1980s legislators perceived that public opinion was shifting away from treatment and rehabilitation of sex offenders towards punishment and retribution ... .").
n100. Doe I v. Otte, 259 F.3d 979, 983 (9th Cir. 2001).
n101. Id. The court also relied on psychiatric evaluations concluding that Doe I had "a very low risk of re-offending" and was "not a pedophile." Id.
n102. See Jane A. Small, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. Rev. 1451, 1455 (1999) ("Contrary to the popularly held belief that sex crimes are usually committed by sinister strangers, seventy-five percent of all sexual assaults are perpetrated by offenders known to the victim." (footnote omitted)); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & Pol'y 569, 594 (1995) (contending that the majority of child molestation is committed by relatives or friends of the child's family); see also Roll of Shame: Public Lists of Known Sex Offenders Draw Few Inquiries, St. Louis Post-Dispatch, Nov. 27, 1994, at 7B (citing a 1994 Oregon study that calculated that just seven percent of sex offenders victimized strangers).
n103. See Roy Edward Lotz, Crime and the American Press 2 (1991) ("Crime runs rampant in the American press; papers do such a brisk business in crime that they are, in effect, advertising disorder."). However much the "if it bleeds, it leads" mentality operates in print journalism, its effects are more prevalent still in television news programming.
n104. Doe v. Lee, 132 F. Supp. 2d 57, 69 (D. Conn. 2001) (footnote omitted).
n105. See Smith, 123 S. Ct. at 1153.
n106. For a discussion of the ways in which the Internet has altered access to public records, see Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1217 (2002) ("Public records are increasingly posing a serious threat to privacy in the Information Age. To understand this threat, our conceptions of privacy must be adapted to today's technological realities.").
n107. See Adam Sampson, Acts of Abuse: Sex Offenders and the Criminal Justice System 124 (1994) ("The vehemence of the hatred for sex offenders is unmatched by attitudes to any other offenders.").
n108. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996) (quoting New York State Assembly Debate Minutes, June 28, 1995, at 360, 393, 417) (internal quotation marks omitted).
n109. Ted Conover, Prisoners of Hate, N.Y. Times, Aug. 28, 2003, at A29. ("Victimizers become vulnerable in prison, none perhaps so much as child molesters. In the hyper-macho world of a maximum-security prison, "baby-rapers' as they're called, are a common target of violence ... .") Bizarrely, inmates often demonstrate their disdain for child molesters by raping them. It is worth noting that prison guards also tend to hold child molesters in particularly low esteem. Id.
Prepared: May 5, 2004 - 5:02:29 PM
Edited and Updated, May 5, 2004