December 10, 2002

A constitutional defense of Megan's Law

By: Jerry Brito

Megan’s Law, adopted by all 50 states, requires convicted sex offenders to register their whereabouts with police once they get out of jail. Often neighbors are alerted by the state that they have a convict in their midst. At the very least offenders are listed in an easily-accessed registry, often online.

The law is named after Megan Kanka, a 7-year-old girl from suburban New Jersey who was raped and murdered by a neighbor who was a repeat sex offender. The law’s aim is to give parents and children a heads-up about a possible danger in their communities. But now Alaska and Connecticut’s laws are being challenged before the Supreme Court and a decision is expected in the next couple of months.

Megan’s law is not being challenged on Eighth Amendment “cruel and unusual punishment” grounds. It has already passed muster there. Instead, the Alaska law is being challenged as an “ex post facto” law–one that increases the punishment for an offense after the prior existing punishment for that same offense has already been served. The plaintiffs in Alaska had served their time before Megan’s Law was enacted.

In Connecticut, the challenge is a class action against the state’s online registry, which does not distinguish between high- and low-risk convicts, and that plaintiffs say violates the “due process” clause. Why should an 18-year-old convicted of statutory rape for having consensual sex with his 16-year-old girlfriend be put next two a 50-year-old who raped a five-year-old?

Megan’s Law is a no-brainer for politicians–they understand the concept of dispersed benefits and concentrated costs. Parents also welcome any help they can get protecting their kids. But opponents say that the ones forgotten are the criminals, who also have rights, and whose privacy is being violated. Megan’s Law is often compared to a scarlet letter that rehabilitated convicts have to wear for the rest of their lives.

But critics need to remember that Hester Prynne got her letter for adultery, which is nobody’s business–certainly not the state’s. Sexual predation is quite another thing. Society is right to punish sex offenders and protect citizens from them. If you can forfeit your right to liberty when you commit such a crime, you can certainly forfeit your privacy. A Megan’s Law database is justified as punishment, deterrent, and

The Alaska plaintiffs are right, however, that ex post facto laws are unconstitutional and should be stricken. The question then is whether Megan’s Law is solely a further form of punishment. The answer clearly is no. Its main function is to centralize and facilitate access to information that is already public. The fact that it punishes is collateral.

If you bought a 1965 Mustang yesterday, and today your state’s legislature enacts an environmental protection law that requires all cars twenty years or older to pass yearly inspections, would you say that’s an unconstitutional ex post facto law?

The Connecticut plaintiffs would like case-by-case hearings to decide whether freed sex offenders still pose a threat and thereby merit being listed on the state’s registry. But again, this presupposes that the registry is a punishment. Of course it has negative side-effects for those listed–people who learn that their new neighbor is a convicted sex offender probably won’t take too kindly to him. But what did they expect when they were committing the crime?

The law merely facilitates the public’s access to information that is already part of the public record. Any ostracism they are subjected to, resulting from knowledge of their past crimes, is something they brought upon themselves. The state is only providing easier access to already available information on a statutorily described class that has forfeited their rights to privacy by committing a crime.

However, it must be noted that the class may be wrongly defined, and that some “crimes” shouldn’t be crimes. The 18-year-old who has consensual sex with his girlfriend shouldn’t be in the class of possible risks fated to be listed in a registry. Neither should someone who engages in consensual sodomy because if that is a crime, it shouldn’t be. But structural issues like these–that are serious and should be corrected–do not make Megan’s Law unconstitutional.

When you commit a crime as heinous as rape, you forfeit certain rights–privacy being the least of them. The fact that you committed the crime is also something you can never escape. Megan’s law makes that fact widely known to protect potential victims from what statistically are highly recidivist convicts. If a child molester doesn’t like being subjected to a life of shame, it something he should have thought about sooner.

Jerry Brito is editor of Brainwash and a student at George Mason University School of Law. His Web site is