High Court Hears Challenges to Megan’s Laws

WASHINGTON —  Megan’s laws, which permit home buyers, employers and other interested people in all 50 states to check computer listings of paroled sex offenders, came under challenge in the Supreme Court for the first time Wednesday.

Two divergent views were voiced during oral arguments. The measures represent either a new and modern way of informing parents about a potential danger in their neighborhoods or a cruel public branding of ex-offenders who have served their time.

“This is like shaming ... in the town square,” said Justice Ruth Bader Ginsburg. The ex-offender has his “face plastered on the Internet,” she said, suggesting he represents a danger to the community. This is the case even if he has been released from prison years ago, she noted.

“What’s wrong with warning the public about who may be dangerous? What is irrational or unconstitutional about that?” responded Justice Antonin Scalia.

And what about the FBI’s “10 Most Wanted” list, asked Chief Justice William H. Rehnquist. Is the government violating the constitutional rights of these fugitives, he asked, by publicly branding them as dangerous?

The lawyers challenging the Internet sex registries struggled to answer the questions posed by Scalia and Rehnquist. And by the end of the arguments, the justices sounded as though they were resolved to reject both challenges to Megan’s laws.

The measures came in a wave of state laws targeting sex criminals in the 1990s. Because they were seen as most likely to repeat their crimes, states rushed to enact measures that went well beyond ordinary criminal laws.

California and half a dozen other states authorized officials to lock up “sexual predators” after they had served their prison sentences. The Supreme Court upheld those laws on a 5-4 vote in 1997, ruling that this extra confinement was not extra punishment.

The original Megan’s Law was named for a 7-year-old New Jersey girl, Megan Kanka, who was kidnapped and killed in 1994 by a neighbor who had been convicted twice of sex crimes involving children. Her parents had known nothing of the neighbor’s past.

While all states have a version of Megan’s Law, they differ in the data that are included and how they are made available to the public.

In 21 states, including Connecticut and Alaska, people can check the state’s Web site listing sex offenders by logging onto a computer. California and other states make listings available at police stations. State officials also alert communities when particularly dangerous offenders reside there.

Two broad challenges came before the court Wednesday. In one from Alaska, several ex-offenders whose crimes occurred before the 1994 law said it is unfair to impose this new registration requirement for old offenses. The U.S. 9th Circuit Court of Appeals in San Francisco agreed and ruled that the Alaska law violates the Constitution’s ban on after-the-fact punishments.

In the second case, ex-offenders from Connecticut said it is unfair to brand them as still dangerous without giving them a hearing. The U.S. 2nd Circuit Court of Appeals in New York agreed, ruling that they are entitled to a hearing before their names and faces are posted on the Internet.

The Bush administration’s solicitor general, Theodore B. Olson, Washington attorney John Roberts, who is President Bush’s nominee to the U.S. court of appeals in Washington, and Connecticut Atty. Gen. Richard Blumenthal led the defense of the state laws.

The state of Alaska is giving its citizens “truthful, objective information about convicted sex offenders,” Roberts said. Registering with the state and having one’s name posted on the Internet “doesn’t rise to the level of punishment,” he said.

It is “demeaning” to be sure, responded Justice Anthony M. Kennedy.

“There’s no escape from it. Nothing will ever get you out of this demeaning regime,” added Ginsburg.

Roberts corrected her by pointing out that less serious offenders stay on the registry for 10 years. Serious offenders remain on the Web site for life.

“The purpose is not to shame” criminals, as was done in medieval times, Roberts said. “Here, the purpose is to inform.”

Darryl Thompson, a defense lawyer from Anchorage, said ex-offenders who are married and employed can have their lives ruined when their names are put on the Internet. “This is stigmatizing. They are telling the public these people are dangerous now,” he said. This should be seen as extra punishment for past crimes, he said.

Olson disagreed. “This is minimally intrusive. And the people have decided they want this information,” he said.

Could the state require that these ex-offenders have a special mark on their car license plates? Kennedy asked.

Or how about requiring them to wear badges that would identify them to the public as sex offenders, asked Justice John Paul Stevens.

Olson said he would find those examples troubling, but they are far beyond what the states now require, he said.

In the Connecticut case, several justices said they did not see how the Internet posting violated any constitutional right.

“What is the constitutional basis for your argument?” Justice Sandra Day O’Connor asked one lawyer. The ex-offenders had been tried and convicted, she said, so they had had a hearing.

“It is about avoiding a government-imposed stigma,” responded Shelley Sadin, a defense lawyer from Bridgeport, Conn.

Rehnquist interrupted to ask, “Can truthful information ever be stigmatizing?”

Yes, she said, because the posting of an offender’s name on the Internet “sends a message” that he is dangerous.

But the justices sounded unpersuaded.