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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case involves an attack on the constitutionality of a state-created Web site that lists convicted sex offenders solely by virtue of their conviction. The Internet registry was created for the purpose of protecting the public and for facilitating access to publicly available information. The Second Circuit's decision makes it far more difficult for the public to access this information, effectively denying parents the ability to warn children of convicted sex offenders living in their neighborhoods. This result is contrary to the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The present case arises from an objection to Connecticut's "Sex Offender Registry" Internet database, which was part of the state's version of "Megan's Law." Doe v. Dep't of Public Safety, 271 F. 3d 38, 42 (CA2 2001). Before the District Court issued an injunction, anyone with access to the Internet was able to search the database by zip code, town name, or by last name. Id., at 44. The search results yielded a direct link to another page entitled "Registered Sex Offender," containing the registrant's name, address, photograph, and physical description. The first page of the Web site contained a statement that read in part: "The Department of Public Safety has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous . . . . The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual." Ibid.

The persons listed in the database were individuals convicted of one of four statutorily defined categories: criminal offenses against a victim who is a minor, nonviolent sexual offenses, sexually violent offenses, and felonies committed for a sexual purpose. See Conn. Gen. Stat. §§54-250(2), (5), (11), (12), 54-251(a), 54-252(a), 54-254(a).

John Doe, the plaintiff in this case, alleged that he was convicted of one of the offenses designated in the statute, but has not specified the offense. See App. to Brief in Opposition 3. Doe filed suit under 42 U. S. C §1983, alleging that Connecticut's sex offender law violated the Ex Post Facto Clause and his Fourteenth Amendment right to procedural due process. Doe claimed that the procedural due process violation occurred because he was not given an opportunity to avoid being listed on the Internet database. The District Court granted summary judgment to Doe on the due process claim and dismissed the Ex Post Facto claim. Doe v. Lee, 132 F. Supp. 2d 57, 59 (D. Conn. 2001). John Doe filed a motion for class certification of all persons who were subject to the registration and public disclosure requirements of Connecticut's sex offender act. The District Court granted the motion, as well as Doe's motion for a permanent injunction. Doe v. Dep't of Public Safety, 271 F. 3d, at 46-47.

When Connecticut appealed, Doe argued, and the Court of Appeals agreed, that his reputation, combined with the alteration of his status under state law, constituted a protected liberty interest deserving of procedural due process protection. 271 F. 3d, at 46. The Court of Appeals stated that the registry and the disclaimer imply that each person listed is more likely than the average person to be currently dangerous. "That implication seems to us necessarily to flow from the State's choice of these particular individuals about whom to disseminate information, a record as to their sex offenses, and information as to their current whereabouts. This implication stigmatizes every person listed on the registry." Id., at 49. In affirming the judgment of the District Court, the Court of Appeals stated that it was prohibiting the state from disseminating registry information without giving individuals an opportunity to prove that they are not currently dangerous. Id., at 62. This Court granted certiorari.

SUMMARY OF ARGUMENT

Plaintiff's challenge to the Connecticut statute is really a substantive challenge "recast in 'procedural due process' terms." The statute provides that all persons convicted of certain offenses will be listed in a publicly available registry without any determination of present dangerousness. As a matter of substantive law, then, the statute renders present dangerousness legally irrelevant. As in Reno v. Flores,Michael H. v. Gerald D., and New Motor Vehicle Bd. v. Orrin W. Fox Co., if the statute is substantively valid, there is no procedural due process issue.

To be substantively valid, the statute needs only a rational relation to a legitimate government interest. The difficulties in predicting the dangerousness of sex offenders are well known. The consequences of an erroneous prediction of nondangerousness are horrific. Given those realities, the Connecticut Legislature is well within its broad range of discretion to forego individualized predictions and base its registry on the simple fact of conviction.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.