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Probably Valid but Still Wrong


Wednesday, Nov. 20, 2002

On Wednesday, November 13, the Supreme Court heard oral arguments in Connecticut Dept. of Safety v. Doe and Smith v. Doe. The cases originated, respectively, in Connecticut and Alaska. Together, they raise the question whether Megan's Laws are valid.

Megan's Laws -- named after a child who was raped and murdered by a pedophile after his release from prison -- require convicted sex offenders to keep the police apprised of their whereabouts by registering wherever they live. After such registration, interested members of the public can -- with greater or lesser ease -- make inquiries.

Many states provide for a very broad dissemination of the registration data, so that information about names and locations of ex-sex offenders may, for example, be available on the Internet. Those who challenged the Connecticut and Alaska versions of the law last week asserted that notification provisions provide for punishment after the fact, in violation of the Constitution's Ex Post Facto Clause. They also argued that these provisions stigmatize people as posing a continuing danger to the public, without the benefit of a hearing.

These arguments are both likely to fail. However, there is nonetheless a deep problem with Megan's Laws that managed to surface -- albeit briefly and with little explicit comment -- during a colloquy between one of the attorneys opposing the laws and Chief Justice Rehnquist.

Why the Current Challenges to Megan's Laws Will Probably Fail

The Supreme is unlikely to strike down Megan's Laws. It has, in the relatively recent past, upheld measures far more severe and restrictive, in the face of similar challenges. In Kansas v. Hendricks, a case that I discussed in an earlier column, the Court considered the constitutional validity of a Kansas statute providing for the civil confinement of sex offenders who remain dangerous after exiting the criminal justice system.

The first ex-convict child molester to face confinement under the Kansas statute claimed that the state was subjecting him to a second punishment (on top of the prison term that he had just served), in violation of several constitutional provisions, including the right against Double Jeopardy. The Supreme Court decided that the Kansas statute, called the "Sexually Violent Predator Act," was civil rather than criminal in nature, however, and therefore did not trigger any criminal procedural protections.

The Court thus concluded in Hendricks that incarceration of a convicted sex offender in a hospital located inside a prison is not punishment for constitutional purposes. Given such a holding, it is hard to imagine that the Justices will view as punishment the mere notification of communities about an ex-offender's presence in their midst.

A person confined in a prison building has a plausible argument that he is actually being punished. But such an argument is far less compelling when -- instead of confinement -- the person faces publicity about the fact of his conviction, a fact that is both accurate and already a matter of public record.

Surely the informational privacy interest in such a fact does not compare to the interest in remaining free from physical confinement. The dissemination of accurate facts, moreover, does not generally require a hearing, even if those accurate facts are -- as respondents in the present Megan's Law cases suggest -- likely to trigger unwarranted assumptions about future dangerousness.

What about the Ten Most Wanted List?

During an exchange with one of the attorneys during oral argument, Chief Justice Rehnquist asked whether posting the names and photographs of the FBI's "Ten Most Wanted" criminal suspects in public places violates anyone's rights. The lawyer, predictably, responded that it does not.

The lawyer's response, however, is not nearly as revealing as Rehnquist's question itself -- suggesting, as it does, that Megan's Laws and "Ten Most Wanted" lists are comparable. Consider the implicit analogy between the two.

When the FBI compiles and posts a "Ten Most Wanted" list, it is essentially announcing that it needs assistance in apprehending the suspects listed. Though the police ordinarily attempt to capture criminal suspects on their own, they sometimes find it helpful to call for civilian assistance in the endeavor.

In the old-style poster, the "wanted" adjective would be followed by the alternatives "dead or alive." And even though that addition is no longer in vogue, the caution that the suspect is likely to be "armed and dangerous" may have a similar effect, for anyone choosing to hunt him down.

It is therefore risky to enlist civilians in the job of tracking down suspects. Nonetheless, seeking such assistance is sometimes necessary, because a suspect poses a grave risk to the public, and the police have thus far been unable to locate him on their own. (Consider the recent police request for help in solving the D.C.-area sniper killings.)

In the case of Megan's Laws, by contrast to the Ten Most Wanted list, the government is announcing, with the legally mandated cooperation of convicted sex-offenders, the names of people whose whereabouts are in fact known to the government. The general public therefore has no role to play in tracking down these people and bringing them to justice.

By hypothesis, the suspects have already been caught and brought to justice. They are accordingly now free to go on with their lives. But if the government does not need civilian assistance in locating the suspects, then what assistance does it seek in publicizing their criminal histories? Put another way, while one might debate the merits of maintaining a registry, what could the reason be for making such a registry public?

When Knowledge Is Not Power: What Will the Neighbors Do?

One reason often given for Megan's Laws is that with the knowledge that John Doe is a convicted sex offender, families with children can make sure to avoid Doe and to keep him away from potential victims. Because the government cannot watch Doe every minute to make sure that he is not molesting a child, on this understanding, it enlists the assistance of the civilian population in doing so.

Though this may sound reasonable enough, there is an obvious question that follows. If John Doe remains dangerous to children, such that the civilian population must monitor him to prevent further crime, then what is he doing on the outside in the first place? Even if he has served his time, he can be civilly committed if he is dangerous.

Particularly after Kansas v. Hendricks, which approved precisely that kind of civil commitment, it seems unnecessary and therefore inappropriate to release a dangerous person back into the population, with only the knowledge of his criminal history to protect the public. What is the non-professional, frightened, civilian population supposed to do with its knowledge?

Whether or not they can do anything constructive about it, civilians apparently want to know. They believe that knowing about an ex-convict's criminal history will enable them to avoid becoming his future prey. Despite their hopes, however, consider what may happen in practice when this information surfaces.

Some families will simply choose to live far away from the convicted sex offender to be on the safe side. But others will not have that option. Those who remain in the area may well feel impotent and unable to protect themselves. After all, the ex-offender could break into their homes or sweet-talk a child while his or her parents are not around. The knowledge of a predator's presence can therefore be a source of anxiety rather than power, if one refrains from vigilante behavior.

How Megan's Laws Can Lead to Vigilantism

And that is why Megan's Laws can pose a serious threat of violence. The families that live near John Doe understandably begin to resent that he is there and that he could, in theory, strike again at any time. They assume, perhaps incorrectly, that he has not truly reformed and that their children are not safe as long as he lives in the neighborhood. They conclude that it would be better for everyone if Doe moved away.

One method of bringing about this desired change would be to frighten Doe into moving, perhaps by leaving threatening notes or resorting to vandalism or worse. Peaceful co-existence with a person known or presumed to be dangerous to the neighborhood children may ultimately lead to a not-so-peaceful attempt to end that co-existence.

It may not even be fair to blame families who resort to scare tactics to return their neighborhood to what it was before a registered "sexual predator" came to town. After all, legal authorities -- by announcing, "here lives a sex offender" -- have practically invited families to do so.

Is the Government Really As Powerless as Megan's Laws Imply?

Much as it did with the "Wanted: Dead or Alive" posters of old, the government, through Megan's Laws, passes responsibility for public security along to the population at large. It says in essence that "we cannot protect you from this person; we need you to take measures to secure your own safety."

At least in the case of the "wanted" man, moreover, a call to the police might lead to an arrest and a trial. For the registered sex offender, by contrast, the neighborhood person who calls the police and says "John Doe is in the Starbucks across the street" will encounter the response, "Sorry, but there's nothing I can do about it. Just be careful."

Such warnings are by now all too familiar from the counter-terrorism context. No one wants to be careful all of the time or to live in constant fear. People may take the law into their own hands rather than tolerating such circumstances. Given that fact, apart from questions of constitutional law, it may behoove our many lawmakers to ask whether our government is truly as impotent in dealing with convicted sex offenders as Megan's Laws would suggest.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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