Topic Study: SMITH V. DOE

Court Decision 3-5-2003: SMITH V. DOE (01-729) 259 F.3d 979, reversed and remanded.
Anchorage Daily News 3-7-2003: ..Article on "Smith -v- Doe.." The case of the two Alaskans may be appealed yet again to the Supreme Court. The 9th Circuit identified other potential constitutional issues regarding the state's law. Renkes said the case is perhaps a year or more from resolution.

Original 9th Cir 4-9-2001 Opinion: This was twice amended.., on 7-24-2001 and again 8-8-2001.
Amended Opinion (PDF File) 7-24-2001 amended opinion.
Amended Opinion (PDF File) 8-8-2001 amended and final opinion, containing all amendments.

Analysis of the 9th. Cir Decision which preceded US Supreme court
REVERSAL & REMAND back to the 9th. cir, to show main issue 9th cir did not decide,
and which the appellants could again appeal to the US Supreme court.

The 9th cir. said, "... we can decide the case before us without having to resolve the most fundamental question posed by the Alaska statute: that is, in light of the fundamental liberty interest protected by the Due Process Clause, may rehabilitation, or a judicial determination of lack of future risk, be wholly ignored when imposing restrictive requirements and obligations on persons who have committed a sexual offense and been fully punished for their crimes? Instead, we base our decision on a far narrower constitutional provision, the Ex Post Facto Clause."

Accordingly, the 9th cir left unanswered all issues, other than Ex Post Facto which was the only issue taken to the US Supreme court. Many folks have misunderstood this decision, and the final US Supreme court decision.

Note: The Alaska registration statute is worded completely different from the Connecticut statute.

The 9th cir went on to say, "The Alaska statute has two main components: it requires sex offender registration, with criminal penalties for failure to register, and it authorizes full disclosure of information about all offenders to the public. The registration provisions require persons convicted of a broad range of offenses against children and adults to register in person with local police authorities. Registrants must be photographed, provide fingerprints, and provide the following information: name, date of birth, address, place of employment, and information about the conviction (specifically the crime, date of conviction and place of conviction). Those convicted of "aggravated" sex offenses must register in person at their local police stations four times each year for life; those convicted of other sex offenses must register in person annually for fifteen years."

The 9th cir, citing the Alaska legislature, " "The legislature finds that: (1) sex offenders pose a high risk of reoffending after release from custody; (2) protecting the public from sex offenders is a primary governmental interest; (3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and (4) release of certain information about sex offenders to public agencies and the general public will assist in protecting public safety." 1994 Alaska Sess. Laws 41, S 1.

1) Recidivism: Registration and all that it entails, for 15 years or life, is based upon the four (4) findings of the Alaska Legislature in 1994. In that same year (1994), the US Department of Justice found, sex offender recidivism rate was 2.65%, virtually the bottom of the chart! see The Truth About Sex Offender Recidivism Rates (half-way down that page). So how did the legislature arrive at a high recidivism rate for sex offenders? The studies they used were by mental health researchers, who create risk assessment tools. The studies are based upon sub-groups of sex offenders, and are being applied to the overall class, in error. Neither, legislatures nor courts, have ever reviewed this issue. Other states have done the same, its a political issue now.

2) Primary governmental interests: it seems higher recidivism crime types, who have none of these requirements, would be a more important governmental interest. The 9th cir said, placement of the registry laws within the criminal statutes was indicative of punishment. Selecting only sex offenders for governmental supervision beyond their sentence (i.e., registration is likened to -probation-), is also indicative of further punishment?

3) Privacy interests of sex offenders: It is important that legislatures identified that Substantive Privacy Interests Exist. (Why would the court mention, and circumvent them, if not substantive) However, these are not "sex offender only interests," these are privacy rights of anyone in society. Are mere words sufficient to dismiss due process rights to privacy? Most all states, when they first enacted registration, made everything private, today that has been eroded without due process.

4) Public safety interests: public agencies would have access to information regardless of registration; registration gives society a perception of safety and has never been shown to actually make society safer. What has been proven is, registration causes significant unrest and hysteria in society, often requiring police interventions, and subtle deprivations for registrants (which they have no recourse from).

While courts have mentioned the subtle deprivations registrants suffer, they have defaulted to the explanation that, these are consequences of the crime. However, but for the governmental intervention with "registration laws" these consequences would not be consequences to the class of offenders. The liberty of sex offenders has been infringed upon beyond their sentence without due process. A substantive due process issue!

Has the US Supreme Court ever faced Registration Circumstances before?
Yes, in 1910 the case of Weems -v- US (See our review) then,
Cadena Temporal (registration as we know it today) was declared unconstitutional!