Connecticut Dept. of Public Safety v. Doe (01-1231), Smith v. Doe (01-729), Ewing v. California (01-6978)

March 6, 2003 Supreme Court Update

Greetings Court fans!
With four new opinions today on top of yesterday's five opinions, the Court is quickly clearing its docket. It could be, of course, that the Justices are racing to clear their plates in the hopes of getting a good assignment in the affirmative action cases. (If you still have several majority opinions outstanding, you're less likely to be assigned any new "big" cases.)
Today's opinions included some of the big cases for the Term: the Court upheld the so-called "Megan's Law" statutes, and California's "three-strikes" law. (A bad day for criminals.)
I'll begin with the Megan's Law cases, and since I'm a Connecticut resident, I'll begin specifically with the challenge to Connecticut's statute. (In the interest of full disclosure, I should note that we helped the Connecticut Attorney General prepare for oral argument in this case.) In Connecticut Dept. of Public Safety v. Doe (01-1231), the Court rejected a due process challenge to Connecticut's Megan's Law. "Megan's laws," found in every state, are sex offender registration statutes. Although the details vary by state, in general, they require convicted sex offenders to "register" by providing -- and regularly updating -- personal information (e.g., name, address, photos) to the state. Connecticut's statute requires sex offenders to provide personal information, including a photograph and DNA sample, to notify the state of any change in address, and to periodically submit updated photographs. The statute further requires the state to publicize this information by posting the sex offender registry on a website. Through the website, any citizen could obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name.
Doe, a convicted sex offender subject to the registration requirements, filed suit claiming that the statute violated his due process rights because it did not provide him the opportunity to prove that he was not currently dangerous. The district court agreed with Doe and enjoined operation of the statute. The Second Circuit affirmed, and today, the Supreme Court reversed.
Although the Chief is known for his short-and-to-the-point opinions, he really outdid himself on this case. Writing for 8 members of the Court (Stevens concurred in the judgment only), he penned less than 2 pages of analysis. (Of course, when confronted with 10 cases to summarize by the end of the week, the Chief's brevity is a welcome attribute!) The basic gist of the 2 pages is this: Doe does not raise a substantive due process claim, and thus the only question is one of procedural due process. But that claim fails because even assuming arguendo that Doe was deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the statute. Under the statute, the registration requirements apply to all convicted sex offenders, whether or not they are a future danger to society. The only fact of relevance to the registry is whether an individual has been convicted, and all registrants had the opportunity to contest their convictions. Because the fact of "future dangerousness" is irrelevant under the statute, Doe is not entitled to a hearing to prove or disprove that fact.
Scalia wrote a one-page concurrence to note that even if the sex offender registry implicated a liberty interest, "the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is 'due.'" Souter (joined by Ginsburg) drafted a separate concurrence to note that while the procedural due process claim fails, there might be other claims still open to challenge the statute (e.g., equal protection challenge to certain parts of the statute). Stevens concurred in the judgment, noting that there is no due process problem with respect to post-enactment offenses because a state may lawfully include registration requirements as part of the punishment for sex offenses.
In a related case, Smith v. Doe (01-729), the Court upheld Alaska's Megan's Law against an ex post facto challenge. In this case, two sex offenders who were convicted before enactment of the Alaska statute claimed that the registration requirements, as applied to them, violated the ex post facto clause. In an opinion considerably longer than the Chief's (more than 14 pages of analysis), Kennedy (for himself, Rehnquist, O'Connor, Scalia, and Thomas) rejected that argument.
Kennedy began his analysis by setting out the "ex post facto" clause framework: The Court first determines whether the legislature intended a criminal or civil consequence. If the legislature intended to establish a civil scheme, the Court must evaluate the effects of the scheme to determine whether the scheme is so punitive as to negate the state's intent to deem it civil. In light of judicial deference to a legislative characterization of its intent, at the second stage of the analysis, only the "clearest proof" will suffice to override that intent and show that what has been called a civil penalty is really a criminal penalty.
From an examination of the text and structure of the act, the Court concluded that the statute was intended to be a civil provision. The purpose of the statute -- protect the public -- is a legitimate, non-punitive government objective, and even though this objective is consistent with the purposes of the criminal justice system, the state's pursuit of the goal through a regulatory system does not make it punitive. While some portions of the statute are codified in the criminal procedure code, this is not dispositive because the criminal procedure code contains numerous provisions that do not involve criminal punishment. The fact that criminal defendants must be notified of the registration requirements in a plea colloquy is similarly unhelpful because it merely ensures that the subjects of a regulatory regime have notice of their regulatory obligations.
Turning to the second part of the analysis, the Court considered the factors outlined in Kennedy v. Mendoza-Martinez to determine that the effects of the statute did not override the state's intent to establish a civil system. First, the Court noted that the registration statute did not mirror any historically-recognized punishments. Although "shaming" penalties were used in the past, the registration statute was not analogous because any stigma results not from public display for ridicule and shaming but rather from the dissemination of accurate information about a public record. The dissemination of truthful public information is not a punishment. Second, the Court reasoned that the act does not impose any affirmative disabilities or restraints. Sex offenders are free to do as they please, so long as they register. Third, the Court considered whether the act promotes the general aims of punishment. Although the act might deter some conduct, many government programs deter crime without punishing. Fourth, the Court found that the act had a rational connection to a nonpunitive purpose. The act promotes public safety, and a statute does not become punitive simply because it lacks a close or perfect fit to its nonpunitive aim. The ex post facto clause does not prevent the state from making categorical judgments that conviction of specified crimes should entail particular regulatory consequences. In other words, the inquiry is not whether the legislature made the best choice possible to address the problem it seeks to remedy. The question rather is whether the regulatory means chosen are reasonable in light of the nonpunitive objectives. The act meets that standard.
Thomas concurred to reiterate his view that a determination of whether a statute is civil or criminal should be limited to an analysis of the obligations actually created by the statute. According to Thomas, the Court should not engage in any "implementation-based" analysis of the statute. Souter concurred in the judgment, primarily to point out that he thinks this is a harder case than the majority makes it out to be. He considered the factors discussed by the majority, and found them in approximate equipoise. At the end of the day, the state won because of the presumption of validity given to state laws.
Stevens dissented. In his opinion, the sex offender statutes implicate a liberty interest, and are clearly punitive. According to Stevens, the statutes are punitive because, unlike civil sanctions, they (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone convicted of a relevant criminal offense, and (3) are imposed only on those criminals. In other words, a criminal conviction is both a necessary and a sufficient condition for the sanction. Ginsburg (joined by Breyer) also dissented. Ginsburg considered the Mendoza-Martinez factors and concluded that the act is punitive in effect.
Turning next to the three-strikes law, in Ewing v. California (01-6978), the Court upheld California's "three-strikes and you're out law" against an Eighth Amendment challenge. The three-strikes law, enacted in 1994, imposes significantly longer penalties for certain recidivist criminals. As suggested by the name (and much simplified), criminal defendants are "out" (i.e., face life imprisonment) once they commit their third strike (specified crime). In this case, Ewing was sentenced to 25 years to life after he stole 3 golf clubs worth approximately $1200. This lengthy sentence resulted from Ewing's prior contact with the criminal justice system, which the Court recounts in detail. (Although Ewing had 13 prior convictions, his prior "strikes" that led to his enhanced sentence were his most recent convictions for three burglaries and a robbery.)
In an opinion for herself, Rehnquist and Kennedy, O'Connor held that Ewing's sentence does not violate the Eighth Amendment. O'Connor began by providing some context: (1) The Eighth Amendment includes a proportionality principle. (2) States have a legitimate interest in punishing recidivists with enhanced sentences in an effort to reduce serious and violent crime. The enactment of such a statute reflects a deliberate policy choice that should be respected by the Court. Turning to the merits of Ewing's claim, O'Connor found that his sentence was not disproportionate to the crime. The penalty was not unduly harsh given the gravity of his crime (theft by a recidivist). Moreover, his sentence is justified by the state's public interest in incapacitating and deterring recidivist felons. Although his sentence is a long one, it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies must be incapacitated.
Scalia and Thomas wrote separate opinions concurring in the judgment. They both agree that the Eighth Amendment does not include a "proportionality" component. They disagree solely on whether they would defer to the Court's precedent to that effect out of respect for stare decisis. Scalia said he would defer if he thought he could apply a proportionality principle. Thomas would not defer at all.
Stevens (joined by Souter, Ginsburg and Breyer) dissented, writing primarily to respond to the concurrences and explain why proportionality review is mandated by the Eighth Amendment. Breyer (joined by the other dissenters) wrote a separate dissent to explain why the punishment in this case was disproportionate. He conducts a thorough analysis of Ewing's punishment as compared with other punishments reviewed by the Court and concludes that it raises a threshold proportionality problem. He then proceeds to compare Ewing's sentence to sentences that might be imposed by other jurisdictions, and concludes that outside California's three strikes context, Ewing's sentence is virtually unique in its harshness for his offense of conviction. Moreover, while California designed the three strikes law to provide harsher penalties for recidivists, Breyer found no criminal justice concerns to justify the sentence. In this regard, Breyer identified several anomalies in the application of the statute.
Well, those are the blockbusters from today. Based on the assumption that you would prefer coherent updates of the remaining opinions, I'll sign off for the night.
Thanks for reading (if anyone is still reading!)
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.