Monday, November 11, 2002
The last cases to be argued this week – on Wed. 11/13 – are two so-called "Megan's Law" cases, arising out of the wave of legislation directed at the registration and other regulation of convicted sex-offenders. The cases are Smith v. Doe and Ct. Dep't of Public Safety v. Doe. The "Doe"s, the convicted people challenging the new laws, won both cases in the federal courts of appeals. The two cases, though they are to be argued on the same day, present different issues.
First, though, a shout-out to the memory of Morton Stavis, a great old progressive lawyer who died about ten years ago after a very distinguished career. Why mention him in this context? Because when no one else would touch the cases, he took on the task of making sure that some people who were unjustly accused of child sexual abuse were not railroaded through the use of coached testimony and other aspects of prosecutorial hysteria. Mort didn't think, and I don’t think, that sexual abuse of kids is a good thing; but he recognized, and I do too, that the Constitution is not to be set aside even when the crime charged is a highly disturbing one. (Plus, in another context, he taught me that when you need an inspiring quote about the importance of the judicial role in ensuring that dissidents must not be subjected to trumped-up political charges on account of their views, a good place to start looking is in all the published opinions about the various prosecutions of union leader Harry Bridges).
Back to the cases! The first, Smith, comes out of Alaska. The Ninth Circuit, in an opinion (pdf) by the brilliant judge Reinhardt, held that Alaska's law (imposing very strict and very frequent registration requirements, etc., on convicted sex offenders) violated the Ex Post Facto clause of the Constitution, as applied to people whose convictions had occurred before the enactment of the law. The Ninth Circuit did not say that this holding would apply to all states' versions of such laws, but painstakingly explained why, under existing precedent (including U.S. Supreme Court precedent) Alaska's particularly onerous law did constitute punishment, which means it failed the "Ex Post Facto" test.
In the second case, Ct. Dep't of Pub. Safety v. Doe, the Second Circuit (opinion here) struck down Connecticut's law – which involved web-posting of lots of information about registered sex-offenders – as a violation of those persons' Due Process rights. In summary, the Court held that the posting constituted an assertion that each such person was more likely to be dangerous than the average person – and that it amounted to a deprivation of liberty, without due process of law, for the State to make such an across-the-board assertion without having individualized hearings about each person's likelihood of future dangerousness.
In the Connecticut case, my sense is that the impulse of many Justices will be to say "there's no constitutional impediment to the government's dissemination of true statements of fact – and there was no real implication that Mr. Doe was in fact still dangerous, just the dissemination of information on the basis of which everyone could make up his or her own mind about that question. So, no problem." Thus I'm betting that the Court will REVERSE in this case.
How about the Alaska case? I'm saying "REVERSE" there, too. While this Court can occasionally put together a majority to do something politically unpopular even in the field of sex law, I don't think it'll happen this time. The majority, I'm guessing, will hold that Alaska's law was a civil regulatory measure rather than an imposition of additional punishment after-the-fact – and therefore did not implicate Ex Post Facto concerns.
I find that I'm predicting "REVERSE" a whole lot these days.
posted by sam 12:28 PM
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