Public Safety and Privacy Analysis

Privacy Law: Requiring Convicted Sex Offenders to Register and Allow Their Personal Data to Be Published by the State

One of the most heinous crimes any individual can be accused of is the crime molesting a child. In the hearts and minds of most of the public, perhaps even in the hearts and minds of most legislators and judges, convicted sex abusers exist within a particular category of their own. They are seen as living beyond the pale of common morality and decency. No parent would want to knowingly live near a convicted sex offender. However, how should the law, which is supposed to be cool and dispassionate, deal with the issue of the need for public safety and protection with the rights of the individual, regardless of the crime that individual has committed? The question arose in the case Connecticut Dept. Of Public Safety v. Doe which was heard before the U.S. Supreme Court on March 5, 2003.

The state of Connecticut passed what is commonly called a "Megan's Law." Megan's Laws require convicted sex offenses to register with a Department of Public Safety (DPS) upon their release into the community. This is so the DPS can post a list of all convicted, released sex offenders. In Connecticut, this list is available to the public on the Internet. In the case, a Mr. Doe filed an action on behalf of his own interests and others subject to Megan's Law and claimed that the law violated the Fourteenth Amendment's Due Process Clause. The first section of the Fourteenth Amendment reads: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" ("U.S. Constitution: Fourteenth Amendment, 2008. Findlaw).

The Connecticut District Court granted Doe a summary judgment, and agreed that "Megan's Law" was unconstitutional. The Second Circuit agreed and stated that the law deprived citizens of a liberty interest, and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether the offenders were likely to be currently dangerous. In short, the convicted, released offenders were deprived of their rights through the punishment of public defamation, even though they had no hearing that justified this continued punishment. The Second Circuit was also presented with the argument that Megan's Law was an ex post facto law and was therefore unconstitutional. An ex post facto law is a law that imposes a criminal penalty after the prohibited conduct has occurred and is therefore unconstitutional. For example, convicting individuals of, for example, tax fraud on their returns from 2005 based on laws passed in 2006 is an ex post facto conviction. Ultimately, the Connecticut court "declined to rule on the issue" (Dorf, 2002).

The U.S. Supreme Court, in 2003 lead by Chief Justice Rehnquist, disagreed with the Second Circuit Court. It decided that the Connecticut Second Circuit's judgment should be reversed because the court required that the defendant have a hearing to be subject to the public list, which the Supreme Court did not feel to be necessary. The court unanimously decided that due process does not require a convicted defendant have an opportunity to prove a fact and an injury to an individual's reputation in a hearing. Also it believed that potential defamation of character does not constitute the deprivation of a liberty interest, even if the individual was not proven dangerous to the community. Due process does not entitle a defendant to a hearing that he is not currently dangerous because the convicted offender had already had the due process of trial. In the words of the Chief Justice the: "Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, and maintains that his challenge is strictly a procedural one," even though he had already had his 'day in court' ("Privacy loses to security," 2003, LSU Law Center)

Of course, it is difficult to support any law that could possibly protect sex offenders. Connecticut, like every other state, has responded to the need to protect the community by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to "all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose," hardly sympathetic defendants ("Privacy loses to security," 2003, LSU Law Center). Also, by definition the law only applies to convicted sex offenders, who had already ceded their liberties by virtue of their conviction at trial, which arguably make the state's interest in protecting the safety of its citizens, especially its most vulnerable citizens, greater than protecting the rights of the convicted individual.

But will this really make the community safer, or will it merely lead to violent attacks against those offenders classified under the law? Offenders are listed without regards to their crime, thus theoretically a boyfriend convicted of statutory rape because of consensual sex with a younger girlfriend would be listened right next to a pedophile convicted of multiple molestation of children. Is the state's interest in defaming his character to protect the community enough to require such an individual to sacrifice his privacy and register as a sex offender? In Connecticut, convicted offenders must register and provide personal information name, address, photograph, and DNA sample; "notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted of sexually violent offenses must register for life" ("Privacy loses to security," 2003, LSU Law Center). The crime the individual has committed is not listed, and the potential use of the list is vague -- will parents avoid living near these children, will employers be able to check such lists -- if the individual is 'safe' enough to be released, is turning them into social pariahs really the best way to make a safer community?