Sexual Offender Registration Acts: Supreme Court Review of the Connecticut and Alaska Statutes in Connecticut Dept. of Public Safety v. Doe and Otte v. Doe

CRS Report for Congress
Sexual Offender Registration Acts: Supreme
Court Review of the Connecticut and Alaska
Statutes in Connecticut Dept. of Public Safety
v. Doe and Smith v. Doe
Charles Doyle
Senior Specialist
American Law Division
The United States Supreme Court has rejected constitutional challenges to two state
sex offender registration and notification statutes (SORA), Connecticut Dept. of Public
Safety v. Doe, 123 S.Ct. 1140 (2003); Smith v. Doe, 123 S.Ct. 1160 (2002). In one, it
concluded that as a matter of due process registrants under the Connecticut statute need
not be afforded the opportunity of a hearing to establish that they should be released
from the burdens of the statute because they are not currently dangerous. In the other,
it held that the ex post facto clause does not ban application of the Alaska statute to
convictions for misconduct occurring prior to enactment of the statute. The Justices left
open the possibility that such statutes might be subject to constitutional attack on
substantive due process grounds and possibly on equal protection grounds.
Background. The Jacob Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act, 42 U.S.C. 14071, imposes a ten percent reduction in federal
law enforcement assistance funds upon any state whose registration and notification
statute fails to meet the Act's minimum standards, 42 U.S.C. 14071(g). All fifty states
and the District of Columbia have registration and notification statutes that differ greatly
from jurisdiction to jurisdiction.1

1 ALA.CODE §§13A-11-200 to 13A-11-203; ALASKA STAT. §12.63.010 to 12.63.100; ARIZ.REV.
STAT.ANN. §§13-3821 to 13-3826; ARK.CODE ANN. §§12-12-901 to 12-12-920; CAL. PENAL
CODE §§290 to 290.95; COLO.REV.STAT. §§18-3-412.5; CONN.GEN.STAT.ANN. §§54-250 to 54-

261; DEL.CODE ANN. tit.11 §§4120 to 4122; D.C.CODE §§22-4001 to 22-4017; FLA.STAT.ANN.

§§775.21, 944.606; GA. CODE ANN. §§42-1-12, 42-9-44.1; HAWAII REV.STAT. §§846E-1 to

846E-9; IDAHO CODE §§18-8301 to 18-8326; ILL.COMP.LAWS ANN. ch.730 ¶150 §§1-12; IND.

CODE ANN. §§5-2-12-1 to 5-2-12-13; IOWA CODE ANN. §§692A.1 to 692A.16; KAN.STAT. ANN.
§§22-4901 to 22-4912; KY.REV.STAT.ANN. §§17.500 to 17.540; LA.REV.STAT.ANN. §§15:540
to 15:549; ME.REV.STAT.ANN. tit.34-A §§11201 to 11256; MD. CODE ANN. art.27 §792; MASS.
Congressional Research Service ˜ The Library of Congress

Smith v. Doe. One of the complainants in Smith, the Alaska case, was convicted of
sexually abusing his minor daughter. After his release from prison, a state court awarded
him custody of his daughter based in part upon psychiatric evidence that he was not a
pedophile and was “a very low risk of re-offending,” 259 F.3d at 983. Alaska then passed
its sexual offender registration law. He and his wife sued state officials in federal court
under 42 U.S.C. 1983, alleging that application of the statute would constitute a violation
of the ex post facto and due process clauses of the United States Constitution. The district
court granted the state’s motion for summary judgment. The Ninth Circuit reversed,
holding that the Alaska statute had to be considered punitive and that consequently the
ex post facto clause barred the law’s retroactive application, 259 F.3d at 985-95. The
finding made resolution of the due process issues unnecessary, 259 F.3d at 995. The
United States Supreme Court granted certiorari, 534 U.S. 1126 (2002), and rejected the
Ninth Circuit conclusion that retroactive application of the Alaska SORA statute would
offend the ex post facto clause.
Justice Kennedy in the opinion for the Court, joined by Chief Justice Rehnquist and
Justices O’Connor, Scalia, and Thomas, held the ex post facto clause inapplicable because
the statute in question was intended to create a civil regulatory scheme and not as
punishment and because it was not so punitive in purpose or effect as to negate that intent,
123 S.Ct. at 1154. Justice Thomas, although joining the opinion of the Court, submitted
a concurring opinion to emphasize his view that ex post clause analysis should be limited
to the terms of the statute and should not weigh the punitive impact of administrative
decisions made for its implementation, like the decision here to provide notification
through the Internet, 123 S.Ct. at 1154.
Justice Souter concurred in the result, but found the question of punitive purpose or
effect so closely stated that only the presumption of constitutionality to which state law
is entitled saved the Alaska SORA from ex post facto infirmity, 123 S.Ct. at 1156. Justice
Ginsburg, with whom Justice Breyer agreed, and Justice Stevens in a separate opinion,
consider the Alaska SORA scheme punitive and therefore would have held that the ex
post facto clause precluded its retroactive application, 123 S.Ct. at 1158 (Stevens, J.,
dissenting); 123 S.Ct. at 1160 (Ginsburg & Breyer, JJ., dissenting).
The Court began its examination with the observation that the ex post facto clause
obviously applies only to the criminal statutes, 123 S.Ct. at 1147. The matter of whether
a statute is criminal or civil and regulatory in nature may be discerned by its language and

GEN.LAWSANN. ch.6, §178C to 178O; MICH.COMP.LAWS ANN. 28.721 to 28.732; MINN.STAT.
ANN. §243.166; MISS.CODE ANN. §§45-33-1 to 45-33-19; MO.ANN.STAT. §§589.400 to 589.425;
MONT.CODE ANN. §§46-23-501 to 46-23-520; NEB.REV.STAT. §29-4001 to 29-4013; NEV.REV.
STAT. §§179D.400 to 179D.620; N.H.REV. STAT.ANN. §§651-B:1 to 651-B:9; N.J.STAT.ANN.
§§2C:7-1 to 2C:7-19; N.MEX.STAT.ANN. §29-11A-1 to 29-11A-8; NEW YORK CORRECT.LAW
§§168-a to 168-v; N.C.GEN.STAT. §§14-208.5 to 208.32; N.D.CENT. CODE §12.1-32-15; OHIO
REV.CODE ANN. §2950.1 to 2950.99; OKLA.STAT.ANN. tit.57 §§581 to 589; ORE.REV.STAT.
§181.585 to 181.606; PA.STAT.ANN. tit. 42, §§9791 to 9799.7; R.I.GEN.LAWS §11-37.1-1 to 11-

37.1-19; S.C. CODE ANN. §§23-3-400 tp 23-3-530; S.D.COD.LAWS ANN. §§22-22-31 to 22-22-41;

TENN.CODE ANN. §§40-39-101 to 40-39-110; TEX.CRIM.PRO. CODE ANN. Arts. 62.01 to 62.13;
UTAH CODE ANN. §77-27-21.5; VT.STAT.ANN. tit.13, §§5401 to 5413; VA. CODE ANN. §§19.2-

390.1, 19.2-390.2; WASH.REV.CODE ANN. §§9A.44.130 to 9A.44.140; W.VA.CODE ANN. §§15-

12-1 to 15-12-10; WIS.STAT.ANN. §§301.45, 301.46; WYO. STAT. §§7-19-301 to 7-19-307.

other indicia of legislative intent such as its placement within the Code and the extent of
discretion afforded administrative officials. In the eyes of the Court the Alaska legislature
marked its intent to create a civil, regulatory scheme by its statutory statement of purpose
(protection of public safety), by its divided placement of the Act’s provisions within the
state’s health and safety code as well as its criminal procedure code, and by the broad
implementing authority it vested in one of the state’s regulatory agencies, 123 S.Ct. at


In order to judge whether the statute’s purpose and effect might be so punitive as to
belie this apparent regulatory intent, the Court considered the factors used to test for the
presence of punitive features in double jeopardy cases, Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168-69 (1963).

The factors most relevant . . . are whether, in its necessary operation, the
regulatory scheme: has been regarded in our history and traditions as a punishment;
imposes an affirmative disability or restraint; promotes the traditional aims of
punishment; has a rational connection to a nonpunitive purpose; or is excessive with
respect to this purpose. 123 S.Ct. at 1149.
Each of the colonial punishments thought most analogous the punitive impact of
administrative decisions made for its implementation – public shaming, humiliation,
banishment – involved more than the mere notification found in the Alaska procedure.
“The process [in Alaska] is more analogous to a visit to an official archive of criminal
records than it is to a scheme forcing an offender to appear in public with some visible
badge of past criminality,” at least in the eyes the Court, 123 1151. The statute
calls for neither imprisonment nor any other physical restraint and its burdens might be
considered less onerous than occupational debarment or some of the other
disqualifications which have been accepted as components of a regulatory scheme in the
past, 123 S.Ct. at 1151.3
The Court did not consider the fact that the statute might have a deterrent effect
dispositive, but thought “the Act’s rational connection to a nonpunitive purpose . . . a
most significant factor in [the] determination that the statute’s effects are not punitive,”
123 S.Ct. at 1152. And it had been conceded that it had a valid and rational nonpunitive
purpose of “public safety . . . advanced by alerting the public to the risk of sex offenders
in their community,” S.Ct. at 1152. Finally, the Court refused to accept the contention
that the Act was excessive by virtue either of its application to all sex offenders no matter

2 Justice Souter “not only agree[d] with the court that there is evidence pointing to an intended
civil characterization of the act, but also [saw] considerable evidence pointing the other way,”
The legislature had not designated the procedure “civil,” and its obligations turned exclusive
upon a prior criminal conviction, and in Justice Souter’s mind its burdens were severe, 123 S.Ct.
at 1155-156.
3 Justices Ginsburg and Breyer applied the Mendoza-Martinez factors with a different result.
They considered the Act’s burdens both onerous and intrusive and involving affirmative
disabilities and restraints; they saw them mirrored in the colonial forms of punishment the
majority found distinguishable; they too noted that only the criminal convicted were exposed to
the Act’s burdens; and they felt that the Act’s burdens without regard to future dangerousness
or rehabilitation were too excessive to be justified in the name protecting public safety by public
notification, 123 S.Ct. at 1159-160.

how dangerous or because of the breadth of disclosure triggered by use of the Internet as
medium of notification, 123 S.Ct. 1152-154.
Connecticut Dept. of Public Safety v. Doe. The Ninth Circuit in Smith was troubled by
the fact that even a judicial determination that a potential registrant was no longer
dangerous would not free him from the grasp of the Alaska statute. The Second Circuit
in Connecticut was troubled by the fact that the Connecticut statute afforded no
opportunity for such a determination. The Ninth Circuit’s concern was insufficient to
render the Alaska statute punitive and thus subject to ex post facto limitations; the Second
Circuit’s concern was irrelevant since SORA obligations turned upon conviction not upon
dangerousness or the want thereof, Connecticut Dept. of Public Safety v. Doe, 123 S.Ct.

1160, 1163 (2003).

The complainants in Connecticut had sued under 42 U.S.C. 1983 claiming that the
Connecticut sexual offender registration and notification statute violated the ex post facto
and due process clauses. The district court rejected their ex post facto claim, but agreed
that due process required a current “dangerousness” hearing before information about a
registrant could be disseminated, Doe v. Lee, 132 F.Supp.2d 57 (D.Conn. 2001). The
Court of Appeals for the Second Circuit affirmed, 271 F.3d 38 (2d Cir. 2001). The
United States Supreme Court granted certiorari, 122 S.Ct. 1959 (2002), and reversed.
In a brief opinion of a near unanimous Court, Chief Justice Rehnquist observed:
In Paul v. Davis, 424 U.S. 693 (1976), we held that mere injury to reputation,
even if defamatory, does not constitute the deprivation of a liberty interest.
Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul
v. Davis, respondent has failed to establish that petitioners have deprived him of a
liberty interest. We find it unnecessary to reach this question however, because even
assuming, arguendo, that respondent has been deprived of a liberty interest, due
process does not entitle him to a hearing to establish a fact that is not material under
the Connecticut statute. 123 S.Ct. 1164.
There is nothing procedurally unfair about statute which demands registration of
those convicted of certain crimes – regardless of the offenders are dangerous or harmless
– while denying them a hearing to prove they are not dangerous. There might be
something substantively unfair about a statute which imposes substantial burdens upon
registrants in the name of protecting the public from the dangerous but which affords no
mechanism for those ensnarled to prove they are not dangerous. The question of
substantive due process, however, was not before the Court, and the Court explicitly
declined to address it, 123 S.Ct. at 1164-165.
Justice Stevens, the only member of the Court not to join the opinion of the Court,
nonetheless concurred in the result:
Because I believe registration and publication are a permissible component of
the punishment of this category of crimes, however, for those convicted of offenses
committed after the effective date of such legislation, there would be no separate
procedural due process violation so long as a defendant is provided a constitutionally
adequate trial. 123 S.Ct. at 1158-159 (Stevens, J., dissenting in Smith and concurring
in the result in Doe).

Justices Scalia and Souter offered separate concurrences. Justice Scalia wrote to
emphasis that from his perspective enactment of the Connecticut statute would have
provided all the process that was due even if had deprived registrants of a liberty interest,
123 S.Ct. at 1165. Justice Souter, with whom Justice Ginsburg agreed, suggested that not
only did the Court’s opinion left the door open for subsequent substantive due process
challenges but that the SORA “is, like all legislative choices affecting individual rights,
open to challenge under the equal protection clause,” 123 S.Ct. at 1166.