Sex-offender registry passes muster

The state’s sex offender registry law does not violate a former inmate’s constitutional rights to due process, equal protection and privacy, the Court of Special Appeals has held.

A lawyer for the ex-offender, who filed his lawsuit as a John Doe, said he may seek review from the state’s highest court.

The man was convicted of rape in Baltimore County Circuit Court in 1977. Lawyer Flynn M. Owens of Rubin & Owens P.A. in Baltimore said his client has not committed another offense and is no danger to society.

“Gosh, Gerald Ford was president when [Doe] committed his crime, and he paid his dues, he served his time in prison,” Owens said.

According to the opinion, Doe was sentenced to 30 years in 1977. He was released in 1995 but violated his probation — the opinion said it is unclear what the violation was — and was sent back to prison. He got out in 1998 and was under supervision until 2007.

Doe is now 57 and married with children.

He filed suit in Baltimore City Circuit Court in 2007, arguing that Maryland’s registry law is unconstitutional because it applies regardless of whether the ex-offender is likely to commit another crime. That court granted the Department of Public Safety and Correctional Services’ motion for summary judgment.

Owens said the registry was intended to keep the public safe from repeat offenders, especially child sex offenders. His client is neither, he said.

“What benefit is there to keep him on the registry other than to expose him to shame and humiliation?” He said.

Assistant Attorney General Stuart M. Nathan, who argued the case for the state, said the state is “pleased the court upheld the General Assembly’s enactment regarding registration of sex offenders, uph[eld] the registration requirement for anybody who’s been convicted of a sex offense.”

Precedent was on the state’s side, Nathan noted.

Doe argued that the registry law violates his right to due process of law under the 14th Amendment and the Maryland Constitution. He cited dicta to that effect from a 2002 Court of Appeals opinion.

But in 2003, the Court of Special Appeals pointed out, the U.S. Supreme Court held that Connecticut’s registry statute did not violate due process. That statute, which is similar to Maryland’s, permissibly presumes dangerousness based on the fact of a sex offense conviction, the Supreme Court held.

Doe also argued that the law violates his state and federal equal protection rights, arguing that it arbitrarily lumps all past offenders together without considering their dangerousness.

The court noted that the registry law actually distinguishes among four classes of sex offenders; each category gets its own level of regulation.

Judge Alexander Wright Jr., who wrote the opinion, also noted that Doe’s past sex offense makes him statistically more likely than the general public or other types of ex-offenders to commit a sex crime in the future, even though former sex offenders are less likely than other ex-offenders to re-offend.

“Again, even though it is clear, given the low rate of recidivism for sex crimes, that the statute will force some people to bear the indignity of registration long after they may have ceased to be a danger to anyone, that is not enough for this Court to overturn the decision of the Legislature in this case,” Wright wrote. “We hold that the statute does have a rational basis.”

Finally, Doe argued that the law violates his right to privacy as set out by the Supreme Court in Roe v. Wade, since the main problem of being on the registry is the damage to his reputation.

Wright wrote that the Supreme Court has said that damage to reputation, without anything else, “does not implicate an interest protected by the Constitution.” He further noted that courts have not found a right to privacy where the information being disclosed is already in the public record.

“In addition to the information in the public record, the sex offender registry contains a picture of Doe and his address,” Wright wrote. “These are generally not considered private because a person’s image can be readily observed by any passerby and addresses are available in the phone book or on the internet, and they are not intimate details of the kind ordinarily considered ‘private’ under the law.”

WHAT THE COURT HELD
Case:
Doe v. Dept. of Public Safety and Corr. Svcs., CSA No. 22, Sept. Term 2008. Reported. Opinion by Wright, J. Filed May 12, 2009.
Issue:
Does Maryland’s sex offender registry law violate due process, equal protection and privacy rights under the U.S. and Maryland constitutions?
Holding:
No, affirmed. The Supreme Court has held a similar law in Connecticut did not violate due process. There is a rational basis for the registration statute. Damage to reputation, without more, does not implicate a constitutional right.