Smith v. Doe

Citation: Smith v. Doe, 538 U.S. 84(2003).

Factual Background
The Court addressed the constitutionality of the Alaska Sex Offender Registration Act, which required that convicted sex offenders register with law enforcement authorities. Following registration, the sex offender’s photograph could be placed on the Internet, along with personal information such as the offender’s name, address, place of employment, date of birth, crime, date of conviction, and length of sentence. While the statute mandated societal notification, Internet publication, although ultimately utilized by the state, was not statutorily mandated. The registration requirement was retroactive &mdash; offenders convicted before the Act’s passage were covered by it.

Supreme Court Decision
The Court held by a 6-3 vote (majority opinion written by Justice Kennedy) that the Act’s retroactive registration requirement was not prohibited by the ex post facto clause of the Constitution (this clause prohibits laws that criminalize acts that were not criminal when committed, or that retroactively inflict greater punishment).

The Court first determined that the Alaska legislature meant to establish civil, nonpunitive proceedings and did not intend to impose a criminal punishment, as “an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate governmental objective and has been historically so regarded.” The Court then assessed whether the statutory scheme was so punitive in effect as to negate the State’s civil intention. As part of this inquiry, which concluded with the Court holding that the State’s civil purpose was not negated, the Court held that posting information on the Internet did not, in contrast to colonial shaming punishments, make publicity and resulting stigma an integral part of the objective of the regulatory scheme. Rather, because the purpose and principal effect of notification were to inform the public for its own safety, and not to humiliate offenders, Internet notification was not punitive.

Bolstering the Court’s conclusion was the idea that widespread public access was necessary for the efficacy of the scheme, and the attendant humiliation “is but a collateral consequence of a valid regulation.” In sum, the Court held that the Internet scheme “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.”

In his concurrence, Justice Thomas attempted to qualify the majority opinion by arguing that “there is no place for an implementation-based challenge in our ex post facto jurisprudence.” This being the case, the determination whether a statutory scheme is criminal or civil should be limited to an analysis of the obligations actually created by the statute. According to Justice Thomas, because the statute did not specify a means of making registry information available to the public, it was not proper for the Court to consider whether Internet dissemination renders the statute punitive.

Justice Souter, although concurring in the judgment, wrote that there is “serious argument that the ulterior motive [of the State Legislature] is to revisit past crimes, not to prevent future ones,” as evidenced by the Internet-based dissemination that, according to Justice Souter, “serves not only to inform the public, but also to humiliate and ostracize the convicts.”

For Justice Stevens, one of three dissenting justices, while the Alaska statute was constitutional as applied to those convicted of offenses committed after the effective date of the legislation, the statute violated the ex post facto prohibition when applied retroactively. The “severe stigmatizing effect” of the statute, partially evidenced by the Internet-based notification, led Justice Stevens to conclude that the Alaska statute “unquestionably affect[ed] a constitutionally protected interest in liberty,” and thus was a form of criminal punishment.

The other dissenting opinion, written by Justice Ginsburg (and joined by Justice Breyer), argued that the Alaska statute was punitive in effect and involved “an affirmative disability or restraint” because, among other reasons, it exposed registrants, “through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.” The fact that the statute permitted placement of the registrant’s face on a webpage, for Justice Ginsburg, “calls to mind shaming punishments once used to mark an offender as someone to be shunned."