In the case of two Alaskan sex offenders, the Supreme Court on March 5 divided 6-3. The six were wrong and the three were right.
Justice David Souter was one of the six who voted wrongly, in my view, but he correctly observed that the case is a close one. The majority ruled that Alaska's harsh law on the post-conviction treatment of sex offenders does not violate the Constitution's ex post facto clause. The act is "nonpunitive," said Justice Anthony Kennedy. He said it is merely "regulatory." This is hokum. Of course it's punitive.
These are the facts. John Doe I and John Doe II were convicted in the 1980s of the sexual abuse of a minor. The former had abused his daughter for two years, when she was between the ages of 9 and 11. The latter had sexually abused a 14-year-old girl. Both men were released from prison in 1990 after completing a rehabilitation program.
The dates are constitutionally significant. Four years after their release, Alaska in 1994 adopted its Sex Offender Registration Act. Under its terms, both John Does must do certain things:
Each offender must register for life, by providing his local police department his name, his aliases, identifying features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access and post-conviction treatment history. He must verify this information four times a year. He must permit the authorities to photograph him and periodically to update the photograph. Alaska will now put all this information on the Internet.
The Constitution says in Article I, Section 10, that "no state shall pass any bill of attainder or ex post facto law." In the Oxford Companion to the Supreme Court, Harvard's Professor Laurence H. Tribe has defined a bill of attainder as a legislative act "that inflicts punishment without a trial." The late Edgar Bodenheimer, professor emeritus at the University of California, identified an ex post facto law as a statute "that prescribes a greater punishment for a crime already committed."
In the case of the two John Does, the high court never mentioned a bill of attainder. It concluded that Alaska's registration law is "nonpunitive, and its retroactive application does not violate the ex post facto clause."
Speaking for the majority, Justice Kennedy held that Alaska's Legislature did not intend the law to function as punishment. The state's primary interest "was in creating a civil scheme to protect the public from harm." True, the 1994 registration act is codified with Alaska's criminal statutes, but this does not make the provisions "punitive."
The two defendants argued that Alaska had resorted to the colonial scheme of "shaming," that is, to impose upon them a permanent stigma. Justice Kennedy did not deny it. Lifetime registration will subject the defendants "to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times." Even so, "these facts do not render Internet notification punitive."
In a brief dissenting opinion, Justice John Paul Stevens demolished Kennedy's opinion for the majority. It is clear "beyond peradventure" that the registration requirements are punitive. "It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted."
In a separate dissenting opinion, Justice Ruth Bader Ginsburg (joined by Justice Stephen Breyer), said Alaska's 1994 law is "punitive in effect." It exposes registrants to "profound humiliation and community-wide ostracism." The act has a legitimate civil purpose, to promote public safety by alerting the public to potentially recidivist sex offenders, "but its scope notably exceeds this purpose. ... The reporting requirements themselves are exorbitant. And meriting heaviest weight in my judgment, the act makes no provision whatever for the possibility of rehabilitation."
Few persons would disagree with this proposition: The state has to keep an eye for a long time on men who have sexually abused little girls. But to punish old crimes by a lifetime of public humiliation is to evoke yet another provision of the Constitution. The punishment is unusual. It is also cruel.
E-mail Jack Kilpatrick at firstname.lastname@example.org.