Smith v. Doe (2003) was a court case in which the U.S. Supreme Court considered the constitutionality of retroactively applying reporting requirements to convicted sex offenders. This issue arose in the context of the application of the Alaska Sex Offender Registration Act, which required convicted sex offenders to register with law enforcement even if they were convicted prior to the passage of the act. In Smith v. Doe, the respondents claimed that the act violated their rights by enhancing punishment for their crimes retroactively in contravention of the Constitution. The ex post facto clause of Article I, Section 9 of the U.S. Constitution specifically prohibits the passage of ex post facto laws. An ex post facto (literally “after the fact”) law is one that punishes conduct that was not a crime at the time it was committed, or increases punishment for a crime after it was committed.
The Alaska Sex Offender Registration Act that was central to the case is a typical example of a so-called Megan’s Law. These laws mandate registration and public notification requirements for convicted sex offenders. This genre of laws was named after 7-year-old Megan Kanka, who was murdered by a convicted sex offender who was her neighbor. Neither the community at large nor Megan’s parents had been made aware of the neighbor’s criminal history. Megan’s death set the stage for the establishment of sex offender registries nationwide. Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act in 1994, which provided federal funding and set minimum standards for state sex offender registries. Within a few years, every state had its own version of a Megan’s Law. Alaska joined in this legislative trend by enacting its Sex Offender Registration Act in 1994.
In Smith v. Doe, two men who were convicted of aggravated sex offenses prior to the passage of the Alaska Sex Offender Registration Act argued that the act resulted in additional, retroactive punishment by requiring them to register with the Department of Public Safety, which in turn publicizes certain offender information on the Internet. Both men had been released from prison and had completed sex offender treatment programs prior to the enactment of Alaska’s registry law. The law required them to register with the state as sex offenders, and also required that the public be provided extensive details about them through an openly accessible database via the Internet. The information available to the public would include the offenders’ names, photographs, physical descriptions, birth dates, addresses, aliases, drivers license and vehicle identification numbers, places of employment, and the particulars of the offenders’ crimes, convictions, and sentences. Both the registration component of the law and the publication component are retroactive in that they apply to sex offenders or child abductors convicted prior to the existence of the law.
The U.S. Supreme Court ruled in Smith v. Doe that the retroactive application of the Alaska Sex Offender Registration Act does not violate the ex post facto clause of the Constitution. The court was divided six to three, with Justice Anthony Kennedy writing the majority opinion. According to Kennedy, the act’s provisions are not punitive in nature, so they do not impose retroactive punishment. Alaska’s purpose in enacting the law was to create a civil regulatory scheme, not to punish. The court found that the point of the act was to construct a means to identify convicted offenders for the sole purpose of protecting the public, not for the purpose of stigmatizing the offenders. Any humiliation experienced by the offenders as a result of the registration and public notification was merely collateral damage resulting from valid civil regulation. The court found that the disclosure of the offenders’ information to the public did not create any significant restraint or disability for the offenders that would categorize the law as punitive in nature. Justice John Paul Stevens, in a dissenting opinion, argued that the ex post facto clause demands that the act only apply to offenders convicted after the act went into effect. Moreover, the dissenters held that the law was indeed punitive, imposing deprivations upon offenders that went well beyond civil sanctions.
Smith v. Doe gave states sweeping legal authority to register and disseminate information about sex offenders pursuant to their own Megan’s Laws, regardless of how long ago those offenders were convicted. The case was clearly a victory for victims’ rights advocates and those focusing on crime control, as it allows for widespread, easy access to information about the broadest possible group of convicted sex offenders. On the other hand, advocates for convicted offenders have contended that many people who have long since done their time and been rehabilitated are now being subjected to a form of shaming that leaves them unable to find housing, obtain employment, or otherwise be productive citizens.
In some cases, many years have passed since an offender completed his sentence, yet he must remain on the registry for life even if there are no subsequent offenses. To him, the law no doubt seems punitive, despite the words of Justice Kennedy. The precedent set by Smith v. Doe may encourage future legislative efforts to advance quasi-criminal penalties under the guise of accomplishing civil regulatory goals. Nonetheless, laws mandating expansive sex offender registration are enormously popular, they have repeatedly received the imprimatur of the courts, and they are here to stay for the foreseeable future.
- “No Easy Answers: Sex Offender Laws in the U.S.” Human Rights Watch (September 12, 2007) http://www.hrw.org/reports/2007/09/11/no-easy- answers-0 (Accessed October 2013).
- “Raised on the Registry: The Irreparable Harm of Placing Children on the Sex Offender Registries in the U.S.” Human Rights Watch (May 1, 2013) http://www.hrw.org/reports/2013/05/01/raised-registry (Accessed October 2013).
- “Smith et al. v. Doe et al.: Certiorari to the United States Court of Appeals for the Ninth Circuit.” Supreme Court Cases: The Twenty-First Century (2000–Present), 2009.
- Tekle-Johnson, Asmara. “In the Zone: Sex Offenders and the Ten-Percent Solutions.” Iowa Law Review, v.94/2 (2009).
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