Judicial Notebook

The U.S. Supreme Court has historically shown limited interest in cases directly affecting forensic psychologists. During its last term, however, the Court ruled that states could not execute defendants who are mentally retarded (Atkins v. Virginia, 2002), could compel prison inmates to participate in sex offender treatment programs (McKune v. Lile, 2002) and could readily initiate the civil commitment of sexual predators at the completion of their prison sentences (Kansas v. Crane, 2002).

The Court is currently reviewing a case of considerable interest to both forensic psychologists and the general public, namely, whether criminal offenders can be required to provide identifying information that is posted on the Internet upon their release from confinement.

Connecticut's 'Megan's Law'

In Connecticut Department of Public Safety v. Doe (No. 01-1231) (70 U.S.L.W. 3703), the Court will consider a Second Circuit determination that Connecticut's "Megan's Law" is unconstitutional. This law requires people convicted of certain criminal offenses--most of them sexual in nature--to register with the state upon their release into the community and provides for the disclosure of the information contained in this registry. Every state has a version of these laws.

Although these laws vary somewhat, Connecticut's statutory scheme is relatively typical in that, upon release, a person convicted of a nonviolent sexual offense must register for 10 years, and a person convicted of a sexually violent offense must register for the remainder of his or her life. Registrants must provide their name, fingerprints, photograph (updated every five years), blood sample for DNA analysis, criminal history record and residence (with any changes reported within five days).

State officials put this information in a central registry and make it available to the public, in part, by posting it on the Internet. The Internet site is searchable by Zip code, town name or last name, with links to an identified registrant's name, address, photograph and physical description. The Web site is visited more than three million times during its first five months of operation. State officials do not determine whether individuals listed are currently dangerous, nor do they assess the risk that they will re-offend. Individuals are included solely by virtue of their criminal conviction.

Second Circuit opinion

The Second Circuit held that this statutory scheme violated procedural due process and banned public disclosure of the information in the registry and use of the Internet site. The court ruled that publication of the registry stigmatized listed individuals as presently dangerous sex offenders without giving them an opportunity to prove they are not a present threat to public safety. The court reasoned that because the list did not differentiate between registrants who are or may be currently dangerous and those who are not, publication of the registry implied that each person listed was more likely than the average person to be currently dangerous and thus stigmatized every person on the list. Although the Sixth and Ninth Circuits have rejected similar claims, the Second Circuit concluded that individuals are entitled to a hearing to determine whether they are particularly likely to be dangerous before being labeled as such by their inclusion in such a registry. The court, however, specifically refrained from indicating what form this process should take.

Psychological research on dangerousness

The prediction of dangerousness has a controversial history in psychology. Noteworthy writings by Monahan (1981), Ennis and Litwack (1974), and others questioned the ability of psychologists and psychiatrists to make predictions of future violent behavior in the 1970s and 1980s. Though refinements in such assessments suggest that now psychologists may be able to assess the risk of violence of various individuals. Indeed, the seriousness of prior arrests has been identified as a significant risk factor in at least one context (Monahan et al., 2000). However, debate continues over when and how assessments of the risk of violence can appropriately be made.

There are a number of questions the Supreme Court may consider in Doe that psychologists might inform. For example, what is the impact of being listed in such a registry on the individual being listed? Does the publication of such a registry, particularly via a Web site, help prevent future criminal acts? Does conviction of a criminal act provide a sufficiently valid and reliable predictor of future criminal acts? Would a hearing held immediately upon release from confinement be able to distinguish individuals who are currently dangerous from those who are not? If such a hearing is held, what types of information can best inform the decision maker, and who is best qualified to make related evaluations and decisions?