- The Washington Times - Thursday, November 14, 2002

Supreme Court justices yesterday posed tough questions to both sides of a constitutional challenge to Internet listings of sex offenders under Megan's Law.

A battery of government lawyers rebuffed claims such listings stigmatize and shame and are equivalent to Colonial-era branding or scarlet-letter laws. They asked the high court to reverse two circuit court rulings that deemed unconstitutional Connecticut and Alaska laws.

"This is a face plastered on the Internet. In modern times that is the equivalent of the Town Square where you are shaming the bad actor," said Justice Ruth Bader Ginsburg, who asked why data about dangerousness and whether offenses were "on the light side" wasn't included.

"It's not the whole truth; only the bad, not the good," Justice Ginsburg said of state Internet sites that typically post criminals' names, addresses, photos and details of the crime.

Much of the debate hinged on whether listing implies a current threat or simply the public record of a conviction, and whether it is punitive or regulatory when inclusion in a registry hinders job or housing opportunities.

"This is not just government name-calling. It is a system of government stigmatizing," argued Shelley R. Sadin, of Bridgeport, Conn., representing a sex offender who said listing him without a hearing or a way to get off the list violated his civil rights.

Justice Antonin Scalia asked: "What is irrational or unconstitutional about warning the people of who may be dangerous? Where is it written that you can only warn the public about those you are sure are dangerous?"

He did not get a direct answer.

U.S. Solicitor General Theodore B. Olson told the court the shame is not the offender's listing in a public registry, but "arises from the conviction of doing a sex offense."

"These individuals have no constitutional right to conceal these public truths from interested public citizens."

The sex-offender Internet sites are required under laws named for Megan Kanka, 7, the New Jersey girl kidnapped in 1994, then raped and murdered by a convicted sex offender who lived nearby. All 50 states and the federal government have variations of Megan's Law.

When Mr. Olson said parents want to know when sex offenders move into the neighborhood, Justice Anthony M. Kennedy asked if criminals could be forced to mark their car's license plate.

"No, that mark on your license plate or on your forehead would go wherever you go, and require you to carry that message instead of the government carrying the message," the solicitor general replied.

"In effect, this is imposing a status of public shame for life in some instances," Justice Kennedy said.

Justice David H. Souter said a 19-year-old convicted of statutory rape for consensual sex with a 14-year-old is unlikely to be "dangerous in any sense" three years later, but would be listed in Connecticut.

"They are saying the stigma results from the state of Connecticut saying they are dangerous," Justice Souter said.

Justice Stephen G. Breyer seemed to agree, saying such a person poses "obviously no danger" and referring to "this 19- or 20-year-old boy" who had sex with the 14-year-old Justice Breyer called a "woman."

"What about someone who is truly a danger, who poses real risk to children?" Justice Sandra Day O'Connor demanded of Anchorage, Alaska, lawyer Darryl L. Thompson.

"There's no effort to weed out those who are dangerous and those who are not," replied Mr. Thompson, lawyer for a man who served five years for abusing his own daughter and another who did six years for abusing a 14-year-old girl.

Those cases resulted in the 9th Circuit Court of Appeals ruling Alaska's law unconstitutional because its applied to people convicted before it was passed, violating the Constitution's ban on ex post facto laws.

"If it's not punishment, it's perfectly OK to apply it retroactively," argued John G. Roberts Jr., of Washington, D.C., attorney for Alaska who said the law was regulatory, not punitive.

Justice Scalia said: "It may be stupid [but] a regulatory measure that goes too far is not punishment."

To illustrate that the law is punitive, Mr. Thompson focused on Alaska's requirement that sex criminals report their whereabouts and changes in appearance every 90 days after leaving prison. Alaska allows that to be done by mail; while other states require police station visits.

"It is a lifetime of having to report to police," Mr. Thompson said.

"But it's regulatory," said Mr. Roberts, who said the burden on the individual is not the proper test. "A $10,000 civil penalty is not punitive, a $10,000 fine is punitive."

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