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Monday, November 11, 2002
No. 01-729 Smith v. Doe

No. 01-1231 Connecticut Dept. Pub. Safety v. Doe

On Wednesday, November 13, the Court will consider two cases having to do with sex offender registration laws, also known as "Megan's Laws." The first, Smith v. Doe, or Ex Post Fact Doe, asks whether Alaska's Sex Offender Registration Act violates the Ex-Post Facto Clause of the Constitution. The second Doe case, Connecticut Department of Public Safety v. Doe ("Doe Process"), presents the question of whether Connecticut may list convicted sex offenders in a public directory without first giving them individualized hearings as to dangerousness.

Surprisingly, both Does won below. In Smith, the Ninth Circuit held that the Alaska's act was punitive in effect, despite that the state's legislature declared in the law that it was not meant to be punitive. Because the act applied to sex offenders who were convicted before the Act was passed, the Ninth Circuit panel found the retroactive punishment violated the Ex Post Facto Clause.

After reading soon-to-be-D.C.-Circuit-Judge John Roberts Jr.'s brief, I am convinced that the Ninth Circuit was wrong. Although sex offenders might feel punished by the statute, the purpose was to track these offenders to provide protection to the communities in which they reside. I predict the Court will REVERSE.

In the second case, Conn. Dept. Pub. Safety, the Doe in question asserts that his Procedural Due Process* rights are violated because publishing his information along with potentially dangerous sex offenders implies that he is more dangerous than the general public. Doe asserts that he must be afforded a hearing as to his present dangerousness. The Second Circuit agreed.

    * Note: I only reluctantly use the term, "Procedural Due Process." I do so only because the Second Circuit characterized the claim as such in its opinion. To me, certain terms should only need a qualifier when they deviate from the norm. Thus, "Due Process" should normally refer to some matter of procedure (the word "process" is the big signal that this should be true), while "Substantive Due Process" can be used to indicate that something other than a procedural issue is at stake. "Procedural Due Process" is redundant, as is "Gin Martini" or even worse, "Gin Martini, straight up." You might as well order "ice water, with water ice cubes."

I think the court will disagree that this case meets the "stigma plus" standard articulated in Paul v. Davis, 424 U.S. 693 (1976). In that case, the Court stated that a plaintiff complaining of government defamation must show that the government made a false statement about him and some additional state-imposed burden. The Second Circuit found that the implication that Doe was dangerous was sufficient to meet the "stigma" requirement, and the registration burdens met the "plus" requirement.

I think the Court will find that publishing true information about convicted sex offenders is not the sort of stigmatizing statement that can give rise to a Due Process right to have a hearing as to dangerousness. For that reason, I predict the Court will REVERSE.