DEPT. OF PUBLIC SAFETY, ET AL., Petitioners, v. JOHN DOE, ET AL., Respondents
2001 U.S. Briefs 1231
of Certiorari to the United States Court of Appeals for the Second Circuit.
AMICUS CURIAE, CENTER FOR THE COMMUNITY INTEREST, IN SUPPORT OF PETITIONERS
David Castro, H. Johannes Galley, Center for the Community Interest, 60
E. 42nd Street, Suite 2112, New York, NY 10165, (212) 909-2620.
Robert J. Del Tufo *, One Newark Center, 18th Floor, Newark, NJ 07102,
* Counsel of Record
Mark R. Filip, F. Neil MacDonald, 333 W. Wacker Drive, Suite 2100,
Chicago, IL 60606, (312) 407-0700.
Whether the Due Process
Clause of the Fourteenth Amendment prohibits a State from listing convicted
sex offenders in a publicly accessible registry without first giving the
convicted sex offenders individualized hearings on whether they are
"currently dangerous" or attempting to sort the offenders into
"tiers" based on predicted likelihood of recidivating.
INTEREST OF AMICUS
n1 Letters of consent
to the filing of this brief are being contemporaneously lodged with the Clerk
of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel for the
amicus state that no counsel for a party authored this brief in whole or in
part and no person, other than amicus, its members, or its counsel made a
monetary contribution to the preparation or submission of this brief.
The Center for
Community Interest ("CCI"), formerly known as the American Alliance
for Rights and Responsibilities, is a national nonprofit organization
headquartered in New York City. n2 CCI's goal is to make our communities safe
places to live and raise children and to make the public areas of our cities
secure and inviting places for all people by helping to identify commonsense,
balanced solutions to crime and quality-of-life problems. CCI also helps to
defend those policies against legal attacks. CCI has successfully helped
localities and civic groups across the country remove drug dealers from
housing projects, pornography shops from neighborhoods, gangs from street
corners, and guns from schools. CCI has also assisted in defending the
legality and propriety of "Megan's Laws."
n2 CCI's Board of
Directors and Board of Advisors include: William Bratton, former New York City
police commissioner; Fr. George Clements, Mac Arthur Prize recipient and
founder of One Church-One Child; Mary Ann Glendon, Harvard Law School
professor; George Kelling, Rutgers University professor and co-author of
Fixing Broken Windows; Henry Luce III, chairman of the Henry Luce Foundation;
Richard Lyman, past president of Stanford University; and Ronald Truss,
president of the Birmingham, Alabama chapter of the NAACP.
CCI has filed briefs in
the United States Supreme Court and numerous federal and state courts
defending commonsense positions on the above issues, and on other matters such
as aggressive panhandling, gangs, drunk driving, and prostitution. CCI has
also defended drug-related evictions, security searches in public housing, and
tailored drug-testing programs in
public schools. CCI has been at the forefront of efforts to reform child abuse
laws to emphasize the lives and safety of children rather than the
"rights" of adults in cases of starvation, torture, sexual abuse, or
other depraved conduct.
Laws providing access
to sex offender information, such as Connecticut's version of Megan's Law, are
important empowerment tools to help members of communities make their own
informed decisions about how they want to protect themselves and their
children against convicted sex offenders living and working in their midst.
The decision of Connecticut and numerous other States to provide community
access to such information--without claiming to have sorted those convicts
into categories based on likelihood of reoffending, and with a forthright
acknowledgment that no such predictions of future dangerousness have
occurred--is sensible and straightforward. Studies have shown high rates of
recidivism among sex offenders, and there is no dispute that victims of sexual
offenses, both children and adults, suffer tremendous trauma from such crimes.
Requiring multi-tiered sorting systems, as the judgment below would do,
exposes victims of sex offenses to potentially having to testify about the
traumatic harms they suffered in order to attempt what experts acknowledge is
an elusive prediction of future dangerousness. Such a process would force
victims to revisit and harmfully relive those traumatic events. While States
are certainly free to opt for multi-tiered sex offender
regimes--notwithstanding the substantial human and financial costs that they
may entail--CCI believes that States also can constitutionally decide to
provide community access to a single set of truthful sex offender information
with the accompanying acknowledgment that no tiering based on likelihood of
reoffending has been attempted.
STATEMENT OF THE CASE
Like all other States,
Connecticut has enacted a version of "Megan's Law" under which
persons convicted of certain criminal sex offenses are required to register
with the State's Commissioner of Public Safety ("Commissioner" or
"DPS") promptly upon release into the community. See Conn. Gen.
Stat. 54-250 to 54-261
(2001). n3 As acknowledged by both the Court of Appeals for the Second Circuit
and the district court, Connecticut's sex offender registration law was
enacted "in response to concerns 'regarding the harm to society caused by
sex crimes and the relatively high rate of recidivism among sex
offenders.'" Doe v. Lee, 132 F. Supp. 2d 57, 66-67 (D. Conn. 2001)
(quoting Roe v. Office of Adult Probation, 125 F.3d 47, 48 (2d Cir. 1997),
and citing Connecticut v. Misiorski, 738 A.2d 595, 601-02 (Conn. 1999));
accord Doe v. Lee, 271 F.3d 38, 41-42 & n.4 (2d Cir. 2001).
n3 These laws are
called "Megan's Laws" because the first such law was passed by the
State of New Jersey in response to outrage over the death of Megan Kanka, a
7-year old who was abducted, raped, and murdered in 1994 by a man who lived
across the street from Megan's family. Prior to the murder no one--neither
Megan, her family, members of the community, nor local police--was aware that
the murderer had twice previously been convicted of sex offenses with young
girls, nor was anyone aware that he was living with two other men who had also
been convicted of sex offenses. See, e.g., E.B. v. Verniero, 119 F.3d 1077,
1081 (3d Cir. 1997).
A. The Connecticut Sex
Offender Registry System
Under Connecticut's sex
offender registry system ("SORS"), all registrants must provide the
following information to the DPS after their release: name, address, criminal
history, fingerprints, a blood sample for DNA analysis, a photograph, and a
description of particular identifying physical characteristics. If a
registrant moves, he must inform the State of his new address within five
days; if a registrant resides temporarily in another state, he must register
with the responsible agency in that state and must comply with
whatever additional duties are imposed on sex offenders there. See
Conn. Gen. Stat. 54-250(3),
54-251(a), 54-252(a), 54-254(a). All registrants must comply with SORS's
periodic address verification requirements, see id.
54-257(c), and registrants must be photographed at least once every
five years. See id. 54-251(a),
54-252(a), 54-254(a), 54-257(d). Failure to comply with any of these
requirements is a Class D felony. See id.
54-251(e), 54-252(d), 54-253(c), 54-254(b). Connecticut's SORS applies
to persons convicted of four categories of offenses, and the specific
registration requirements differ, depending upon the type of crime for which
the offender was convicted and the offender's criminal history. See id.
54-250(2), (5), (11), (12), 54-251(a), 54-252(a), 54-254(a). The
Commissioner may not elect to remove any individual offender from the Registry
or exempt an offender from registration requirements. n4 See Doe, 132 F.
Supp. 2d at 61.
n4 Two classes of
offenders are eligible for exemption from registration, upon a finding by a
Connecticut court that "registration is not required for public
safety": (a) anyone who was convicted of engaging, while 18 or younger,
in sexual intercourse with a victim who was (1) more than two years younger
than him or her and (2) between the ages of 13 and 15 at the time of the
offense; and (b) anyone who was convicted of subjecting another person to
sexual contact without consent. Conn. Gen. Stat.
54-251(b) & (c). In addition, the Registry information of certain
offenders may be restricted by court order to law enforcement personnel only.
These offenders include persons convicted of, inter alia, sexual assault in a
spousal or cohabiting relationship or any crime involving a victim under the
age of 18 to whom the offender is related, if the court finds that publication
is not required for public safety and would reveal the victim's identity. Id.
54-255(a) & (b).
directs the Commissioner to compile this information in a central registry
("Registry") and to share the information with local, state, and
federal law enforcement officials. See id.
54-257(a). The Commissioner and local and state law enforcement
officials are also to make the Registry information available to the public
during normal business hours. See id. 54-258(a)(1).
The DPS is further directed to post this information on an Internet website
and to issue notice quarterly to
media outlets in Connecticut about the availability and means of accessing the
Registry. See id.
The district court
correctly characterized Connecticut's SORS as an undifferentiated or
single-tier classification system under which all sex offenders convicted or
found not guilty by reason of insanity are included in the Registry. Doe,
132 F. Supp. 2d at 59-60 & n.3. The district court found on undisputed
evidence that while the DPS has a procedure in place "to respond to
challenges to the accuracy or completeness of" information contained in
the Registry," none of the agencies involved in the registration process
... conducts any individualized assessment of the public safety threat posed
by an individual when deciding whether he must register." Id. at 61.
Offender Registry" website became available on January 1, 1999, and
during the first five months of operation, it was visited over three million
times. See Doe, 271 F.3d at 44 n.14. Prior to the district court's
ruling in this case, a visitor to the website could search by last name, by
first letter of a last name, or by town or zip code, and could thereby access
a web page containing the registrant's name, offense, current residence,
physical description, and photograph. See Doe, 132 F. Supp. 2d at 61.
Sometime between December 1998 and May 1999, Connecticut added the following
express disclaimer to the website:
The [DPS] 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. Anyone who uses this information to injure,
harass, or commit a criminal act against any person included in the registry .
. . is subject to criminal prosecution.
271 F.3d at 44-45. The
Registry website also stated, "this information is made available for the
purpose of protecting the public." Id. at 45.
Connecticut's SORS was
enacted to comply with federal regulations (64 Fed. Reg. 572 (1999))
issued to implement the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Program (the "Wetterling Act"), 42
U.S.C. 14071 (1994 &
Supp. V 1999). Under the Wetterling Act--which sets minimum or threshold
standards for sex offender registration and notification regimes--States must
"release relevant information . . . necessary to protect the public
concerning a specific person required to register" under the Act. 42
U.S.C. 14071(e)(2). Any
State that fails to comply with the Act loses ten percent of federal grant
monies it otherwise would receive. 42 U.S.C.
expressly declare that State may "make judgments concerning the degree of
danger posed by different types of offenders and to provide information
disclosure for all offenders (or only offenders) with certain characteristics
or in certain offense categories." 64 Fed. Reg. at 582. The
regulations also allow States to have information-on-request notification
systems, by which members of the public may view sex offender information. See
id. In this regard, the regulations declare that States that have
"information-on-request systems may make judgments about which registered
offenders or classes of registered offenders should be covered and what
information will be disclosed concerning these offenders." Id.
whose registration and community information access rules are based solely on
the nature of the crime(s) for
which an offender has been convicted, is consistent with access systems
maintained by numerous States and the District of Columbia. See generally
Logan, A Study in Actuarial Justice: Sex Offender Classification Practice and
Procedure, 3 Buff. Crim. L. Rev. 593, 603 (2000) (stating that nineteen
States have adopted systems without individualized risk assessments).
Significantly, Connecticut's chosen regime is also consistent with the Campus
Sex Crimes Prevention Act of 2000, which requires States to ensure community
access to information about all registered sexual offenders enrolled in or
employed by an institution of higher education, without regard to
individualized risk determinations. See Publ. L. No. 106-386, 1601,
114 Stat. 1537 (to be codified at 20 U.S.C.
1092(f)(1) and 42 U.S.C.
14071(j) (effective October 2002)).
B. The Constitutional
Challenge Advanced Below
On February 22, 1999,
Respondents John Doe and Sam Poe filed suit under 42 U.S.C.
1983, alleging on behalf of themselves and others similarly
situated that Connecticut's SORS violated their Fourteenth Amendment right to
Due Process by denying them a constitutionally protected liberty interest
without notice or meaningful opportunity to be heard. See Doe, 132 F. Supp.
2d at 62. Doe, a Connecticut SORS registrant who provided undisputedly
accurate Registry information to the Commissioner, claimed as a factual matter
that he was not "a dangerous sexual offender" and did not "pose
a threat to the safety of the community." Id. Nonetheless, he contended,
he had been stigmatized for purposes of Due Process protection because the
State failed to provide him with an opportunity to challenge the "implied
allegation" that he is a "dangerous sex offender." Id. Doe
claimed that this allegation arises from the "undifferentiated
nature" of the Registry itself, in which "dangerous and nondangerous
registrants are grouped in a single classification"--that is, "sex
offender"--and because the Registry provides no information with respect
to any individual registrant's "dangerousness." Id. Doe also alleged
that Connecticut's SORS altered
his legal status under the law, because the registration requirements imposed
an extensive burden on his personal liberties, separate from the
"'deleterious effects which flow directly from a sullied
reputation.'" Id. at 65 (citation omitted).
C. The District Court's
The district court
(Chatigny, J.) agreed with Respondents' contentions and granted summary
judgment on the Due Process claim, "essentially because the
undifferentiated nature of the registry stigmatizes nondangerous registrants
by grouping them together with dangerous registrants." Doe, 132 F.
Supp. 2d at 59. n5 The district court found that the State had not
provided Respondents with a chance to challenge the stigma, "implied
by" their inclusion in Connecticut's single-tiered Registry, that they
were dangerous sex offenders. Id. at 62. The district court reasoned
that "the implied allegation . . . arises from the undifferentiated
nature of the registry, in which dangerous and nondangerous registrants are
grouped in a single classification and no information is provided regarding
any registrant's dangerousness." Id.
n5 Plaintiffs also
brought an ex post facto claim on the same facts, against which the district
court ruled at summary judgment. That aspect of the district court's decision
is not before this Court.
"stigma plus" analysis derived from cases such as Paul v. Davis,
424 U.S. 693 (1976), the district judge concluded that the Respondents had
indeed suffered "stigma, that is, . . . public opprobrium and damage to .
. . reputation." Id. at 63 (internal quotation marks and citation
omitted). The court reasoned:
Despite the accuracy of the registry data concerning the plaintiff and
the statement on the web site that no determination of any individual's
dangerousness has been made, the registry suggests that plaintiff is currently
dangerous. Specifically, the
undifferentiated nature of the registry and the undisputed purposes of
[Connecticut's SORS] make it reasonable for a viewer of the registry to
conclude that any particular registrant is dangerous.
* * * *
While it is true . . . that the viewer has no reason to think the
registrant is one of those who is dangerous, the viewer also has no reason to
think the registrant is not dangerous. Because there is no classification
system, the viewer has neither absolute nor relative information regarding the
dangerousness of the registrant.
Id. at 63-64 (footnotes and internal citations omitted). As a result,
the district court stated, "by omitting to provide such relative
information, Connecticut's system has the effect of falsely suggesting that
nondangerous registrants are in fact dangerous." Id. at 64.
The district judge
further concluded that SORS's requirements were sufficient to establish a
material alteration of Respondents' legal status, beyond mere damage to their
reputations, thereby satisfying the "plus" factors necessary to
establish a Due Process violation in this context. See Doe, 132 F. Supp. 2d
at 64-65 (citing cases, including Paul v. Davis, 424 U.S. 693 (1976)).
Based on its finding that Connecticut did not provide any individualized means
of determining a registrant's dangerousness before inclusion in the Registry,
the district court held that non-dangerous sex offenders, such as Respondents
claim to be, must be afforded an opportunity to be heard about their alleged
non-dangerousness before the State deprives them of their liberty interest.
See id. at 66.
In May 2001, the
district judge entered a permanent injunction prohibiting Petitioners from
"disclosing or disseminating to
the public, either in printed or electronic form (a) the Registry or (b)
Registry information concerning a member of the due process class if the
information identifies the class member as being included in the
Registry," and from "identifying any member of the due process class
as being included in the Registry." Doe v. Lee, No. 3:99 CV 314 (RNC),
2001 WL 536729, at *1 (D. Conn. May 17, 2001). The injunction does not
prevent law enforcement agencies or officers from obtaining access to the
Registry or using the information contained in it for law enforcement
D. The Second Circuit's
The Court of Appeals
for the Second Circuit affirmed on the merits. Doe v. Lee, 271 F.3d 38 (2d
Cir. 2001). Although it rejected certain aspects of the district court's
Due Process analysis, the Second Circuit nonetheless concluded that
Connecticut's single-tiered Registry necessarily and falsely implied that
"persons listed . . . are particularly likely to be currently
dangerous." Id. at 50.
The Second Circuit
reasoned that an offender's inclusion in the Registry as a person
"convicted of crimes characterized by the State as sexual offenses"
"plainly" stigmatized the registrant, even though the statement was
true as a matter of fact. Id. at 47. What makes the stigmatizing
statement false, and therefore actionable in the court's view, is the
inference that a registrant, by inclusion in Connecticut's single-tiered SORS,
is a "'presently dangerous sex offender.'" Id. at 48
(emphasis in opinion) (quoting Respondents' brief).
The Second Circuit
rejected the district court's conclusion that Connecticut's SORS "implies
that every person listed therein is in fact dangerous." Id. at 48
(citing Doe, 132 F. Supp. 2d at 63). Because the Registry includes all
sex offenders who have been convicted of covered crimes, the Second Circuit
was unable to conclude that a viewer would understand the Registry "to
say or imply that all of the registrants are in fact currently
dangerous." Id. at 49 (emphasis in original).
the Second Circuit found that the Registry was defamatory as to
Plaintiff-Respondents because it implies that some registrants are dangerous
and that each individual registrant is more likely than the average person to
be currently dangerous. See id. at 48. In concluding that Connecticut's
undifferentiated, single-tiered SORS violated Doe's Due Process rights, the
Second Circuit reasoned:
Disclosing the identity of persons who are currently a threat to public
safety is the sole avowed and legitimate purpose of the registry. Even the
disclaimer itself, by asserting that the DPS "has made no determination
that any individual included in the Registry is currently dangerous,"
clearly implies that some may be. But the list is undifferentiated; it does
not say which registrants are or may be currently dangerous and which are not.
We think that it follows that publication of the registry implies that
each person listed is more likely than the average person to be currently
dangerous. That implication seems to us necessarily to flow from the State's
choice of these particular individuals about whom to disseminate information,
a record as to their sex offences, and information as to their current
whereabouts. This implication stigmatizes every person listed on the registry.
Id. at 49.
The Second Circuit also
concluded that the registration requirements imposed by Connecticut's SORS
qualified as "plus factors" under the "stigma plus" test
of Paul v. Davis, 424 U.S. 693 (1976). See Doe, 271 F.3d at 56-57.
The Second Circuit held that Respondents were "entitled to the
opportunity to have a hearing consistent with due process principles to
determine whether or not they are particularly likely to be
currently dangerous before being labeled as such by their inclusion in
a publicly disseminated registry." Id. at 62.
The judgment of the
Second Circuit was entered on October 19, 2001. Defendant-Petitioners timely
filed a Petition for a Writ of Certiorari, which was granted on May 20, 2002.
to provide people with information about convicted sex offenders in their
communities are confronted with substantial evidence of the following four
propositions: (1) sex offenders recidivate at serious and elevated rates; (2)
sex offenders inflict horrible damage on their victims, many of whom are
children; (3) it can be difficult to confidently predict whether any given
convicted sex offender will recidivate and, if so, when; and (4) there are
substantial potential human and financial costs associated with trying to make
individualized predictions, including the potential for victims of sex
offenses to have to testify about those crimes. Given the evidence of those
propositions, a State can rationally conclude that multi-tiered sex offender
registries are flawed and that the better approach is to provide community
access to a single set of accurate sex offender information with an
accompanying acknowledgment that no tiering based on likelihood of reoffending
has been attempted.
This type of
single-tier sex offender information system conveys no false assertions,
either express or implied, about registrants. Nothing in this Court's
precedents supports the conclusion that an impliedly false assertion is
created by the publication of concededly truthful information about
individuals' criminal convictions, particularly where publication is
accompanied by an express disclaimer making clear that no individualized
assessment of dangerousness was done. The fallacy in the Second Circuit's
conclusion to the contrary is made particularly clear by the fact that
virtually all of the information in the Connecticut SORS is public information
that constitutionally cannot be removed from the public
domain. At bottom, the lower courts' decisions reflect an unwarranted
mistrust in the ability of ordinary Americans to rationally evaluate truthful
information about sex offenders in their communities and make intelligent
decisions based on it.
A State need not enact
a multi-tiered sex offender notification system to comport with the
Constitution. Rather, a State may adopt a single-tier information access
system that allows community members to make decisions for themselves about
what steps, if any, are appropriate in a given situation to protect themselves
and their families.
SUBSTANTIAL EVIDENCE SUPPORTS A LEGISLATIVE DECISION TO ENACT A SINGLE-TIER
INFORMATION ACCESS SYSTEM
backdrop against which Connecticut legislates is useful in assessing the
permissibility of single-tier sex offender information access mechanisms such
as the one chosen by the State of Connecticut. This backdrop similarly exists
for Congress, the District of Columbia, and the many other States that have
adopted single-tier sex offender information access mechanisms in which all
persons convicted of defined sexual crimes are included. As explained further
below, there is substantial evidence from which a legislature can reasonably
conclude that: (1) sex offenders recidivate at serious and elevated rates; (2)
sex offenders seriously harm their victims, who often include children; (3) it
is difficult to assess the likelihood of any particular sex offender
recidivating; and (4) there are substantial potential human and financial
costs presented by a multi-tiered sex offender system. Based on available
information, a State can make the eminently sensible decision to adopt a
single-tier sex offender information access system to help inform members of
the public about convicted sex offenders living and working in their midst.
Sex Offenders Recidivate at Serious and Elevated Rates
Numerous courts have
acknowledged the evidence of the high rate of recidivism for sex offenders.
For example, in Doe v. Poritz, 662 A.2d 367 (N.J. 1995), the New Jersey
Supreme Court, in upholding New Jersey's version of Megan's Law, reviewed
extensive evidence of elevated recidivism rates for sex offenders. That
evidence indicated that "'as a group, sex offenders are significantly
more likely than other repeat offenders to reoffend with sex crimes or other
violent crimes, and that tendency persists over time.'" Id. at 375
(quoting brief of State of New Jersey).
Poritz noted various
studies conducted by State and federal authorities, including a fifteen-year
follow-up study of sex offenders in California in which 19.7% of sex offenders
were rearrested for a subsequent sexual offense and in which "'sex
offenders were five times as likely as other violent offenders, and more than
six times as likely as all types of offenders, to reoffend with a sex
offense.'" Id. The evidence also included a review of "'the most
frequently cited studies of sex offender recidivism,'" which indicated
that rapists repeat their offenses at rates up to 35% and child molesters
repeat their offenses at rates up to 29-40%. Id. The Poritz Court aptly stated
that there was "no dispute," as far as the people of New Jersey were
concerned, that "the relative recidivism rate of sex offenders is high
compared to other offenders." Id. at 374 n.1. Accord, e.g., Cutshall
v. Sundquist, 193 F.3d 466, 476 (6th Cir. 1999) (rejecting various
constitutional attacks to Tennessee's "Megan's Law" and recognizing
studies indicating that "sexual offenders have high rates of
recidivism"); Doe v. Pataki, 120 F.3d 1263, 1276 (2d Cir. 1997)
(quoting findings of the New York legislature concerning "the danger of
recidivism posed by sex offenders"); Lanni v. Engler, 994 F. Supp.
849, 853 (E.D. Mich. 1998) (rejecting various constitutional attacks,
including a Due Process attack, to Michigan's "Megan's Law," and
noting that sex offenders "by virtue
of relatively high recidivism rates" "pose a serious threat to
There is also a
substantial body of scholarly literature discussing the serious rate of
recidivism for sex offenders. For example, a 1995 article reviewing twelve
studies of sexual offenders concluded that the average recidivism rate was 27%
for those who did not receive treatment and 19% for those who did receive
treatment. See Hall, Sexual Offender Recidivism Revisited: A Meta-Analysis of
Recent Treatment Studies, 63 J. Consulting & Clinical Psychol. 802, 806
(1995) (collecting studies). Another study conducted in Massachusetts in 1997
found that 26% of rapists committed new sexual offenses within twenty-five
years (with an average of 4.55 years before reoffense), and that 32% of child
molesters recidivated (with an average of 3.64 years before reoffense). See
Prentsky, et al., Recidivism Rates Among Child Molesters and Rapists: A
Methodological Analysis, 21 Law & Hum. Behav. 635, 642-43 (1997). A 1991
review of recidivism studies likewise found recidivism rates of 20-40% for
exhibitionists and up to 35.6% for rapists. See McGrath, Sex-Offender Risk
Assessment and Disposition Planning: A Review of Empirical and Clinical
Findings, 35 Int'l J. Offender Therapy & Comp. Criminology 328, 334 (1991)
To be sure, and as
courts have acknowledged, the scholarly literature concerning sex offender
recidivism is not uniform and presents some conflicting opinions,
"especially concerning the precise numbers" regarding recidivism
rates. Poritz, 662 A.2d at 374 n.1; accord United States Sentencing
Commission, Report to the Congress: Sex Offenses Against Children 32 (June
1996) (noting variation). But such variation in data does not limit
legislatures; indeed, "it is precisely where such disagreement exists
that legislatures have been afforded the widest latitude in drafting
statutes." Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997).
In choosing to enact
Connecticut's single-tier sex offender
information access regime, it is clear that the legislative representatives of
the people of Connecticut were acting "in response to concerns regarding
. . . the relatively high rate of recidivism among sex offenders." Doe
v. Lee, 132 F. Supp. 2d 57, 66-67 (D. Conn. 2001) (internal quotation
marks and citations omitted); accord, e.g., Roe v. Adult Probation, 125
F.3d 47, 48 (2d Cir. 1997) (stating that Connecticut enacted its version
of Megan's Law in response to concerns about "the relatively high rate of
recidivism among sex offenders"). There is ample authority upon which
Connecticut could determine that the serious rate of recidivism presented by
convicted sex offenders requires that people have access to information about
these offenders in their communities. Access to information is necessary so
that individuals can decide for themselves what precautions, if any, are
appropriate to protect themselves, their spouses, and their children against
undue risk of criminal sexual misconduct.
B. Sex Offenders
Seriously Harm Their Victims, Who Often Include Children
It goes almost without
saying that sex offenders inflict horrific damage upon their direct
victims--most of whom are women and children--and against society as a whole.
The original Megan's Law was enacted to try to prevent such damage, see Poritz,
662 A.2d at 374 n.1, as was the Connecticut sex offender notification
regime at issue in this case, see Roe, 125 F.3d at 48. Studies have
estimated that "between 1 in 10 and 1 in 4 adult women are raped or
sexually assaulted during adulthood and prevalence figures are similar for
child victims of sexual aggression." Hall, 63 J. Consulting &
Clinical Psychol. at 802 (citations omitted); see also Hanson and Bussiere,
Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66
J. Consulting & Clinical Psychol. 348, 348 (1998) (citing studies
estimating that 10% of boys and 20% of girls suffer from sexual assault).
Victims of sexual molestation and assault suffer physical, psychological, and
emotional damage that can be debilitating and that can remain with
them the remainder of their lives.
C. A Legislature Can
Reasonably Conclude That It is Difficult to Assess the Likelihood of a Sex
There is a considerable
body of evidence and opinion attesting to the difficulty of accurately
predicting whether any particular sex offender will commit another sex offense
in the future. For example, the Connecticut Supreme Court has recognized that
"predictions of future dangerousness are tentative at best and are
frequently conceded, even within the profession, to be unreliable." Connecticut
v. Putnoki, 510 A.2d 1329, 1335 (Conn. 1986). Numerous studies have led
one commentator to conclude that "predicting risk to commit violence in
general and sexual aggression in particular is an extremely difficult
task." McGrath, 35 Int'l J. Offender Therapy & Comp. Criminology at
331 (collecting studies).
Part of the reason for
the difficulty in accurately assessing the future dangerousness of a
particular offender is that factors which affect dangerousness can vary over
time and can meaningfully impact the degree of dangerousness an offender
presents. For example, studies have found that repeat sex offenses correlate
with variables such as whether the offender was consuming alcohol. See id. at
338 (citing research finding that 45% of rapists reported a connection between
alcohol use and increased urges to rape, and that 30% of child molesters
reported that alcohol increased their sexual attraction to children). Research
also has found that an offender is more likely to recidivate if he is
currently unemployed or has been drifting between jobs as opposed to being in
a stable employment situation. Id. at 340. Studies also indicate that an
offender who does not presently have a stable family or other support network
may be at higher risk to commit another sex offense. Id.; see also American
Psychiatric Ass'n, Clinical Aspects of the Violent Individual at 25 (1974)
("Dangerousness is an attribute not only of persons but of
situations and environmental factors"). In addition, while
offenders who truly accept responsibility for their offenses and want to
change their behavior should present lower risk profiles, "motivation to
change is difficult to assess, . . . because there are clear benefits to
'appearing' willing to change, and many sexual offenders have the social
skills necessary to gain the confidence of sympathetic clinicians."
Hanson and Bussiere, 66 J. Consulting & Clinical Psychol. at 349.
As a result of the
difficulties in trying to measure the danger of recidivism presented by any
particular offender at any particular time, a legislature can reasonably
conclude that making predictions about relative dangerousness levels, within
the universe of convicted sex offenders being released into the community, is
a risky and elusive endeavor. A legislature similarly can conclude that
requiring a multi-tiered sorting of sex offenders based on predictions of
likely recidivism may have the unintended effect of presenting the public with
a more limited, and less accurate, set of information than a uniform access
system that contains accurate sex offender information with an accompanying
acknowledgment that no tiering based on likelihood of reoffending has been
D. There Are
Substantial Potential Human and Financial Costs Attendant to a Multi-Tiered
Sex Offender System
There also are
substantial potential human and financial costs associated with having a
multi-tiered sex offender system. Tragically, some of these costs may be
imposed on prior victims of sex offenses, who frequently are the only
witnesses who can provide direct evidence concerning factors that will be used
in attempting the elusive "sorting" process discussed immediately
"sorting" process, victims of prior sex offenses (including violent
rape and child molestation) will be exposed to the possibility of testifying
because virtually any multi-tiered
system will look to the circumstances and facts concerning past sex offenses
to try to predict future dangerousness. Of course, "many of these facts
will not have been determined by the trier of fact in the criminal
proceeding," E.B. v. Verniero 119 F.3d 1077, 1108 (3d Cir. 1997),
because a jury verdict, and even a plea colloquy, likely addressed only the
elements of the crime of conviction. As a result, a prior conviction may be of
limited utility, particularly where the sex offender was allowed to plead to a
less serious charge so as to spare his victim from having to testify at trial.
In this situation, the plea colloquy will likely have focused on the elements
of the less serious charge. In fact, defense counsel may have insisted that
the plea colloquy focus entirely on the elements of the lesser charge (as
opposed to the more gruesome aspects of the bargained-away crime) as part of
the deal that spared the victim from having to testify. See generally In re
C.A., 679 A.2d 1153, 1165 (N.J. 1996) (suggesting that "in the
future" prosecutors should try to "ensure that the factual basis of
the [other] sexual offenses that are dropped pursuant to the plea bargain are
established by reliable evidence").
multi-tiered system almost certainly will look to whether the convicted sex
offender has engaged in other sexual misconduct which was not the subject of
criminal conviction. As a result, in attempting to undertake a multi-tiered
sorting process, "the court will be called upon in some proceedings to
determine the circumstances of sex offenses that have never been the subject
of a criminal proceeding" at all. Verniero, 119 F.3d at 1108.
Simply put, in
multi-tiered registration systems, there are many factors that go into the
"sorting" process that may potentially involve factual issues about
which the victim of the crime is the best source of evidence. As to the crime
of conviction, these issues include: (1) the degree of force used by the
offender; (2) the duration of offensive behavior; (3) the degree of contact
between the offender and the victim; and (4) whether the offense involved the
use of, inter alia, a weapon. See id.
at 1083-84 (reviewing various factors employed in New Jersey's
multi-tiered system); accord Doe v. Pataki, 120 F.3d 1263, 1268 n.6 (2d
Cir. 1997) (identifying similar factors used in New York's multi-tiered
system). To the extent the multi-tiered sorting addresses whether the
convicted sex offender has committed other offenses beyond the crime of
conviction, the number of factors about which the victim (or victims) will be
the best source of evidence simply multiplies.
With a multi-tiered
system, victims of crimes sometimes will be required to testify because
"sex offenses are almost always committed in private. This means that
potential witnesses with relevant knowledge of whether, and if so how, an
alleged sex offense occurred are generally limited to the victim and the
alleged offender." Verniero, 119 F.3d at 1108. To be sure, States
with multi-tiered registration systems have tried to take steps to minimize
the number of times that victims will actually be required to testify at sex
offender hearings by allowing for the possible use of certain hearsay--for
example, permitting consideration of out-of-court "statements [that were
previously] subject to cross-examination, or other statements where
circumstantial guarantees of trustworthiness exist." In re C.A., 679
A.2d at 1165 (internal quotation marks and citations omitted).
Nonetheless, a State
like Connecticut can reasonably conclude that the possibility of easing
burdens on victim-witnesses through the potential use of certain hearsay is
insufficient to warrant a multi-tiered sex offender system. In New Jersey, for
example, a multi-tiered state, hearsay evidence is admitted only under certain
circumstances. Although it can be used to establish a prima facie case for the
prosecution in favor of an offender's classification in a higher tier, the sex
offender may challenge the hearsay with his own reliable hearsay, or with an
offer of live testimony, and that can be sufficient to raise a factual issue
that needs to be resolved by a hearing. See id. at 1164-65. In such an
instance, the prosecution is not required to advance victim-testimony in
rebuttal, and instead may choose
to take its chances with its other evidence. See id. at 1166. The
prosecution obviously does so at its peril given the factual dispute in play.
Moreover, the potential
of needing to present victim testimony itself will inflict trauma on the
victim because of the need to prepare the victim-witness. Specifically, the
State's decision about whether to impose on a victim to testify may well be
presented only after the court concludes that the "State's hearsay
evidence . . . [was] sufficient to overcome live testimony [just] offered on
behalf of the offender." Id. Thus, the State in a multi-tiered system may
well have been required to inflict upon a victim the trauma of preparing to
testify and thereby re-living the crime. This trauma will be imposed,
regardless of whether the victim ultimately needs to testify in court, just to
try to support classification of the convicted sex offender in a
"tier" that will allow notification to the community of the
offender's presence. n6 A State like Connecticut can naturally be skeptical of
the wisdom of such a "sorting" endeavor.
n6 New Jersey courts
have certainly expressed reluctance to "compel a victim to testify unless
it is absolutely necessary," and have even at times stated that such
victim testimony will be compelled in "the rarest of cases." In
re C.A., 679 A.2d at 1166. Nonetheless, the decision about whether a
victim will be compelled to testify is subject to the discretion of the trial
court, id. at 1164-65, and victims may feel morally obliged, even if
not compelled by pain of law, to testify (and thereby re-live their harms), so
that others can be informed of and thereby protected from the sex offenders
who harmed them. This moral pressure likely will be felt by a victim in direct
proportion to the degree of trauma inflicted by the convicted sex offender.
The multi-tiered sorting process creates these pressures on a victim to
testify, even if he or she is not compelled by law to do so.
Over and above these
potential human costs--which in and of themselves could reasonably lead a
State to conclude that a multi-tiered sorting process presents human costs
that cannot be justified--there are also potentially significant financial
expenditures associated with the multi-tiered sorting
process. For example, Massachusetts estimated in 1999 that the annual
operating budget for its sex offender registry board, which sorts sex
offenders into tiers, would be $ 10 million. See Logan, 3 Buff. Crim. L.
Rev. at 636 n.206. There are substantial financial costs associated with
the "sorting" process for any offender and, of course, a sex
offender can demand new hearings (sometimes as frequently as once a year) by
asserting that he is "all better now" and no longer presents a
threat. See, e.g., N.Y. Correct. Law 168-o
(McKinney 2002) (providing for annual hearings if so requested by registrant).
n7 Studies demonstrate
that sex recidivists sometimes commit reoffenses many years and even decades
after their initial offense. See, e.g., Poritz, 662 A.2d 367, 374 n.1 (N.J.
1995); Prentsky, 21 Law & Hum. Behav. at 652; see also id. at 645-53.
In the present
environment of dramatically shrinking state budgets, a State like Connecticut
can reasonably conclude that limited public funds can be spent on more
appropriate things--such as education, healthcare for the poor, or combating
domestic terrorism--than the funding of a multi-tiered sorting process for
convicted sex offenders. So can Congress, in its treatment of information
access in the Campus Sex Crimes Prevention Act of 2000, and the District of
Columbia and many other States that have similarly opted against multi-tier
sex offender registration regimes in favor of regimes where all those who have
been convicted are included. The reasonableness of such a decision is
particularly apparent given the evidence that the multi-tiered sorting process
may not be entirely effective, and given that there is a much simpler
alternative--namely, providing a single-tier sex offender information access
system that contains truthful information about offenders and expressly states
that no tiering based on likelihood of reoffending has been attempted.
II. THE SECOND CIRCUIT
ERRED IN CONCLUDING THAT CONNECTICUT'S SINGLE-TIER REGIME IS UNCONSTITUTIONAL
The lower courts'
decisions finding the Connecticut SORS unconstitutional fundamentally rest on
the premise that "the undifferentiated nature of the [Connecticut]
registry" creates an "implied allegation" that falsely
stigmatizes convicted sex offenders like Respondents who claim that they are
not "dangerous sex offender[s]." Doe, 132 F. Supp. 2d at 62;
accord Doe, 271 F.3d at 49. The Second Circuit further stated that this
"implication seems to us necessarily to flow from the State's choice of
these particular individuals about whom to disseminate information, a record
as to their sex offences, and information as to their current
A. The Lower Courts' "Implied Allegation" Analysis Is
The lower courts'
"implied allegation" and false stigma analysis is fatally flawed.
The Supreme Court's jurisprudence does not support a conclusion that a
constitutionally objectionable defamation can be produced by the publication
of indisputably accurate information such as that conveyed on the Connecticut
SORS. There is no dispute in this case that the information actually published
about the Respondents is accurate. See Doe, 132 F. Supp. 2d at 62-63.
There is also no dispute that the Connecticut SORS contained an express
disclaimer stating that the State had not made any "'determination that
any individual included in the registry is currently dangerous.'" Doe,
271 F.3d at 44 (quoting DPS website). There is also no dispute that the
website expressly advised that the State had "'not considered or assessed
the specific risk of reoffense with regard to any individual prior to his or
her inclusion within this registry,'" and further clarified, lest there
be any doubt, that "'individuals included within the registry are
included solely by virtue of their conviction record and state law.'" Id.
(quoting disclaimer on DPS website).
such circumstances, it is not possible to conjure any false message about
Respondents. The lower courts' attempt to do so is fundamentally inconsistent
with the website's disclaimer, and nothing in this Court's precedents supports
such a result. To the extent that the lower courts tried to find support in Paul
v. Davis, 424 U.S. 693 (1976), they turned the case on its head. Paul
rejected the claim that a plaintiff had a right to a due process hearing to
vindicate an asserted liberty interest. Id. at 694. In Paul, the
plaintiff asserted that this liberty interest was implicated by his inclusion
on a list of "Active Shoplifters" publicly distributed by police,
notwithstanding that he merely had been arrested and the charge against him
thereafter was "filed away with leave (to reinstate), a disposition which
left the charge outstanding" and unresolved. Id. at 696
In the course of
rejecting the various constitutional claims, Paul dismissed the proposition
that "the State may not publicize a record of an official act such as an
arrest." Id. at 713. This statement echoed a similar one made by
the Paul Court in rejecting the plaintiff's Fourteenth Amendment challenge, in
which the Court stated that if the plaintiff's view were to prevail, "a
person arrested by law enforcement officers who announce that they believe
such person to be responsible for a particular crime . . . presumably obtains
a claim against such officers under [Section] 1983." Id. at 698.
The Court's rejection of this due process proposition fatally undermines
Respondents' allegation of a liberty interest in the context of this case,
where the Respondents already have been convicted of sex offenses and the
State has merely published information relating to those convictions (as well
as an express disclaimer of any assessment of individual dangerousness).
Given the disclaimer on
the Connecticut website, there is no way to find any implied false message
about the Respondents. To the extent any specific message is conveyed about
Respondents at all, it is that they are members of a group (i.e., convicted
sex offenders) that presents a risk of inflicting
serious harm on future victims. If such a message is
conveyed--notwithstanding the SORS's statement that "'the main purpose of
providing this data on the Internet is to make the information more easily
available and accessible,'" Doe, 71 F.3d at 44 (quoting
website)--that message is unquestionably true. Nothing false is either
expressly or impliedly at play. As a result, there is no need to have any
individualized hearing to determine the truth of the matters on the DPS
website. See Codd v. Velger, 429 U.S. 624, 627 (1977) (holding that
plaintiff has no due process right to any individualized hearing where he did
not allege that information was "substantially false,"
notwithstanding plaintiff's stigma allegation). n8
n8 In addition, a
subsidiary part of the Second Circuit's reasoning was its notion that the
false "implication" purportedly created by the Connecticut SORS
"necessarily" flowed "from the State's choice of these
particular individuals about whom to disseminate information, a record as to
the their sex offences, and information as to their current whereabouts."
Doe, 271 F.3d at 49 (emphases added). This notion of improperly
choosing "these particular individuals" (i.e., only sex offenders)
is more fairly likened to an equal protection analysis than a due process one,
and it is fundamentally flawed. This Court has squarely held that legislative
classifications based on the nature of criminal offenses are subject only to
rational basis review. See Chapman v. United States, 500 U.S. 453, 465
(1991). And under rational basis review, it is well settled that a
legislature may proceed incrementally in addressing problems. See, e.g., Williamson
v. Lee Optical of Oklahoma, Inc. 348 U.S. 483, 488-89 (1955). Given
available evidence, a State certainly can rationally conclude that the danger
posed by sex offender recidivism warrants certain measures that are not needed
to address recidivism from those who commit other offenses such as property
crimes. Accord Artway v. Attorney Gen'l of N.J., 81 F.3d 1235, 1267 (3d
Cir. 1996) (holding that sex offenders are not a suspect class under
Fourteenth Amendment analysis). Moreover, a legislature may adopt a conclusive
presumption that each member of the group of convicted sex offenders presents
a sufficient risk of recidivating to justify community access to sex offender
information, without affording an individualized hearing concerning
dangerousness, and not run afoul of any "substantive" due process
prohibition. See Michael H. v. Gerald D., 491 U.S. 110, 120-21 (1989)
(plurality opinion). A legislative decision to enact such a conclusive
presumption is subject only to rational basis review, which is satisfied given
the danger of sex offender recidivism and the fit between community
notification and the goals of protecting the public and assisting law
enforcement. See generally id. at 121.
B. The Information Provided
By Connecticut's Single-Tier Information Access System Is Almost Entirely
Public Information Anyway
The fallacy of the
"implied stigma" argument is made even clearer by the fact that
virtually all of the information available in a single-tier system concerning
sex offenders is undeniably public information. In fact, information about the
arrest and conviction of sex offenders, like information about most criminal
proceedings, must be public and cannot be taken from the public domain. See,
e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975) (holding
that the First Amendment prohibits States from imposing sanctions on the press
publishing truthful information contained in court records). Information about
"the commission of crime" and the results of "prosecutions
resulting from it" are "without question events of legitimate
concern to the public." Id. at 492.
These issues are of
legitimate public concern for many reasons. One is the public's right to know
of individuals and businesses that have been convicted of crimes so that
citizens can protect themselves--in their business affairs, in their
investments, and in their personal interactions with convicts who present the
risk of inflicting serious physical and emotional harm should they recidivate.
In our Nation, a "trial is a public event," and "what
transpires in the courtroom is public property." Craig v. Harney, 331
U.S. 367, 374 (1947). In this regard, even "the fact of [an] arrest
is a permanent part of the public record." Atwater v. City of Lago
Vista, 532 U.S. 318, 364-65 (2001) (O'Connor, J., dissenting) (citing Paul
v. Davis, 424 U.S. 693 (1976)); accord Webster v. Redmond, 599 F.2d
793, 798 n.6 (7th Cir. 1979) (stating that "publication of an
official act such as an arrest does not itself give rise to a meritorious due
process claim.") (citing Paul, 424 U.S. at 712-13).
the logic of the lower courts' "implied stigma" analysis were
correct, then a State would unfairly "stigmatize" some people who
had been convicted of crimes simply by making available on the Internet an
accessible database of all criminal conviction data. This would be true,
notwithstanding that all of the "Criminal Convicts" data would be
undeniably public information, and notwithstanding that presentation of such
information through the internet simply facilitated access to already-public
records. n9 Nothing in this Court's precedents supports such an illogical
n9 Of course, the
Connecticut SORS also contains information about the sex offenders' current
addresses, which can be obtained through the registration regime. However,
such registration requirements bear on whether there are "plus
factors" at play, not whether there has been inaccurate
"stigma"--particularly where, as here, there is no dispute about the
accuracy of any information.
Respondents may contend
that the Connecticut SORS is somehow different than the "Criminal
Convicts" database hypothesized above because the DPS website states that
the information on it "'is made available for the purpose of protecting
the public.'" Doe, 271 F.3d at 45 (quoting website). This
statement, however, cannot be divorced from the specific statement on the
website that the DPS "'has not considered or assessed the specific risk
of reoffense with regard to any individual . . . and has made no determination
that any individual included in the registry is currently dangerous.'" Id.
at 44 (quoting website). The website's statement that the information was
provided to help protect the public--a restatement of one of the purposes of
making criminal conviction information publicly accessible in any
situation--is of no constitutional moment, especially given the express
disclaimer on the website that no individualized dangerousness analysis was
n10 CCI does not
contend, of course, that States are precluded from adopting multi-tier sex
offender notification regimes if they prefer to do so. CCI does believe,
however, that evidence concerning the difficulty of assessing an individual
sex offender's risk of recidivating, and the costs associated with the sorting
process, can reasonably lead a State to conclude that a single-tier
information access system for all convicted offenders is preferable. To the
extent that this Court were to find any impliedly false message conveyed by
the Connecticut SORS, CCI respectfully submits that this Court should make
clear what sort of disclaimer would be sufficient to dispel such an implied
allegation, so that legislatures are not forced to choose between the problems
presented by multi-tier systems and the alternative of having no community sex
offender notification regime at all.
C. The Lower Court
Decisions Do Not Respect People's Ability to Make Sensible Decisions Based on
Single-Tier Information Systems
At bottom, the
decisions of the lower courts reflect a fundamental distrust in the ability of
ordinary Americans to intelligently evaluate information about sex offenders
and make rational decisions based on it. n11 Contrary to the tenor of the
lower courts' opinions, ordinary Americans are able to sensibly digest the
straightforward facts that: (1) a person who lives or works in their
neighborhood has previously been convicted of a sex offense of some type; and
(2) the State has not attempted to predict whether that person is particularly
dangerous at the given time and under the particular circumstances that may
confront the community member. The information available through the
Connecticut SORS allows a community member to make his or her own decision
about what preventive steps, if
any, are appropriate to protect that person, that person's spouse, or that
person's children from the risk that the sex offender may present under a
given set of circumstances at a given point in time. See 64 Fed. Reg. at
581 (stating that the regulations implementing the Wetterling Act are
designed to ensure "that registration programs will include means for
members of the public to obtain information concerning registered offenders
that is necessary for the protection of themselves or their families").
n11 See Doe, 132 F.
Supp. 2d at 63 ("Despite the accuracy of the registry data concerning
the plaintiff and the statement on the web site that no determination of any
individual's dangerousness has been made, the registry suggests that plaintiff
is currently dangerous"); Doe, 271 F.3d at 42 (stating that the
SORS leaves registrants "branded as likely to be currently dangerous
offenders irrespective of whether they are"); see also Brief of
Plaintiffs-Appellees Samuel Poe and John Doe, United States Court of Appeals
for the Second Circuit, Docket Nos. 01-7561 (L), 01-7600 (XAP), at 49
(contending that the nature of the Connecticut information access mechanism
"preclude[s] it from providing any meaningful information to members of
the public about which offenders pose a threat to them").
Given the undisputable
fact that "sex offenses are almost always committed in private," Verniero,
119 F.3d at 1108, a person informed through the Connecticut SORS may
conclude that no material risk is presented to them by a convicted sex
offender who works pumping gas at the local filling station, or who is a clerk
in the local hardware store. In contrast, a parent informed through the
Connecticut SORS quite sensibly may conclude that an unacceptable risk is
presented, for example, where the convicted sex offender wants to coach a
youth swim team, or volunteer at a local day camp, or be a children's dance
The basic point is that
the information access provisions in the Connecticut SORS give community
members information to make these sorts of judgments for themselves. The
genesis of the original Megan's Law, of course, was the idea that knowledge,
rather than ignorance, was appropriate concerning the presence of sex
offenders. This knowledge is essential, because sex offenders depend on
anonymity and seclusion to commit many of their crimes. There is nothing in
law or logic that justifies the conclusion that average Americans should
not--indeed, constitutionally may not--be given information such as that
available through the Connecticut SORS so that they can make reasonable,
context-specific risk assessments to protect themselves and their families.
That is particularly true where Connecticut has expressly informed citizens
that no offender-specific risk assessment has been attempted.
For the reasons stated
above, the judgment of the Court of Appeals should be reversed.
Robert J. Del Tufo *,
One Newark Center, 18th Floor, Newark, New Jersey 07102, (973) 639-6800
* Counsel of Record
Mark R. Filip, F. Neil
MacDonald, 333 West Wacker Drive, Suite 2100, Chicago, Illinois 60606, (312)
David Castro, H.
Johannes Galley, Center for the Community Interest, Lincoln Building, 60 E.
42nd Street, Suite 2112, New York, New York 10165, (212) 909-2620
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