April 3, 2003
CONNECTICUT'S SEX OFFENDER REGISTRY: U. S. SUPREME COURT RULING
By: Susan Price-Livingston, Associate Attorney
You asked for a summary of Connecticut Department of Public Safety v. Doe, 123 S. Ct. 1160 (2003).
In Connecticut Department of Public Safety v. Doe, the U. S. Supreme Court overturned district and appellate court orders that directed (1) the Department of Public Safety (DPS) to shut down its sex offender website and (2) state and local police departments to stop giving the public access to printed copies of the sex offender registry. The lower courts determined that public disclosure and dissemination of the registry implicated potential registrants’ constitutional liberty interests, thus giving them the right to show that they were not dangerous before the department added their names to the public registry.
The high court disagreed. Even if registration implicates a constitutional liberty interest, a question it found unnecessary to decide, it concluded that offenders receive all the process that is constitutionally required when they are given the opportunity to contest their guilt in the criminal proceedings. Whether or not an offender is dangerous at the time he is required to register is irrelevant under Connecticut’s law; thus holding a hearing on that question could not change the result.
In a concurring opinion, Justice Scalia expressed the view that the passage of Megan’s Law in and of itself abrogated whatever due process rights offenders might otherwise have had to disprove their dangerousness. Justices Souter and Ginsburg filed a second concurring opinion. They emphasized the narrowness of the issue that the Court decided and suggested that other constitutional claims, not raised in this case, were still viable.
CONNECTICUT’S SEX OFFENDER LAW
Connecticut’s Megan’s Law applies, with a few exceptions, to persons convicted after October 1, 1988 of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with DPS when they are released into the community. Each must provide personal information, including his name, address, photograph, and DNA sample. They must notify DPS of any change in address, and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases, but those convicted of sexually violent offenses must register for life (CGS § 54-251, et seq. OLR Report 2000-R-1022 describes the law more fully).
The law requires DPS to compile the information gathered from registrants and, in most cases, to publicize it. In particular, DPS must post a sex offender registry on its Internet website and give printed copies to state and local police departments for members of the public to view (§§ 257 and 258). People looking at the registry also see the following warning: “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” (§ 258a).
The DPS website enabled anyone with access to the Internet to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the website:
The registry is based on the legislature’s decision to facilitate access to publicly available information about persons convicted of sexual offenses. 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.
FACTS OF THE CASE
The plaintiff filed a federal civil rights action using the pseudonym “John Doe. ” He is a convicted sex offender who is subject to the registration requirements of Connecticut’s Megan’s Law and claimed that the registration law violates, among other things, the Due Process Clause of the U. S. Constitution’s 14th Amendment. Specifically, he claimed that he is not a dangerous sexual offender and that the Connecticut law deprives him of a liberty interest without giving him notice or a meaningful opportunity to be heard.
The federal district court for the District of Connecticut upheld Doe’s claim and permanently enjoined the law’s public disclosure requirements. The Court of Appeals for the Second Circuit affirmed, holding that the Due Process Clause entitles sex offenders to a hearing “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” (Doe v. Department of Public Safety ex rel. Lee, 271 F. 3d 38, 45-46 (2001)). The appeals court reasoned that the law implicated a liberty interest because of (1) the law’s stigmatization of registrants by implying that they are currently dangerous and (2) its imposition of extensive and onerous registration obligations on registrants. From this liberty interest arose an obligation, in the Court of Appeals’ view, to give offenders an opportunity to demonstrate that they are not “likely to be currently dangerous” (Doe, at 62).
SUPREME COURT RULING
The U. S. Supreme Court reversed. It first discussed its prior Due Process Clause holdings, noting that in every case where it had found that a hearing was constitutionally required, the specific fact that was to be established at the hearing was relevant. But in the present case, the fact that Doe sought to prove – that he is not currently dangerous – was not relevant to his registration obligations.
The Court determined that the Connecticut law’s registration requirements turn on an offender’s conviction alone – a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Thus, even if Doe could prove that he is not likely to be currently dangerous, the Connecticut legislature has decided that the registry information of all sex offenders – currently dangerous or not—must be publicly disclosed.
The Court noted that the only question it had been asked to decide was whether Connecticut’s statutory scheme violated Doe’s right to have a hearing about his current dangerousness. Because of this, it declined to express an opinion on whether the registration law conflicts with any other constitutional provision (Connecticut Department of Public Safety v. Doe, at 1164-65).
Justice Scalia articulated a second reason for overturning the lower courts’ orders. In his view, even if the requirements of Connecticut’s sex offender registration law implicate an offender’s liberty interest, the General Assembly abrogated that liberty interest when it enacted Megan’s Law. He suggested that the registration law was analogous to a law prohibiting anyone under the age of 16 from operating a motor vehicle. A convicted sex offender has no more right to additional process enabling him to establish that he is not dangerous than a 15-year-old has a right to process enabling him to establish that he is a safe driver (Id. , at 1165).
SOUTER AND GINSBURG CONCURRENCE
Justices Souter and Ginsburg outlined possible substantive due process and equal protection claims that were not foreclosed by the Court’s opinion. In support of the latter claim, they suggested that provisions of the registry law giving courts the discretion to exempt certain offenders from registration or restrict publication of registry information when not required for public safety evinces the state’s recognition that some offenders within the sweep of the publication requirement are not dangerous. They noted that legislatively created classifications, such as the one specifying which sex offenders must register and which need not, are like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause.