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WASHINGTON — In a quartet of decisions handed down Wednesday, the Supreme Court gave its general approval to two tough-on-crime trends that swept the nation in the 1990s: Megan’s laws and Three Strikes statutes. In the case of Megan’s laws, in which governments use the Internet or some other kind of public registry to warn neighborhoods of sexual predators in their midst, the justices agreed that the laws do not amount to extra punishment that would violate ex post facto prohibitions, and do not violate defendants’ due process rights. As for Three Strikes statutes that allow for stiff penalties, including life in prison for third-time offenders, the justices agreed that the penalties do not violate the Eighth Amendment bar against cruel and unusual punishments. As a group, the decisions stand as an unmistakable symbol of the conservative majority’s strength in approving sweeping state experimentation in the area of crime and punishment. “These rulings demonstrate once again that in the area of criminal law, the court’s instincts are quite conservative and more deferential to state judgments than they are in other areas of the law,” said Steven Shapiro, legal director of the American Civil Liberties Union. “This court is committed to upholding the ability of states to protect their citizens from the most dangerous predators,” said Charles Hobson, an attorney with the conservative Sacramento-based Criminal Justice Legal Foundation, which filed briefs supporting the state laws. Both questions decided Wednesday were spawned by high-profile crimes against children in the 1990s. In 1993, Polly Klaas was murdered in California by a repeat offender out on parole. California voters enacted the Three Strikes law soon after, followed by similar legislation from the federal government and more than half the states. A year later, 7-year-old Megan Kanka was killed in New Jersey by a neighbor who had a record of sex crimes. In the aftermath, Congress passed a law that succeeded in encouraging all 50 states to enact some kind of sex offender registration law. The individual rulings handed down Wednesday: � Smith v. Doe, 01-729, in which Alaska sex offenders challenged that state’s Megan’s law because it required them to register even though their offenses occurred before the law was passed. Justice Anthony Kennedy, writing for the 6-3 majority, said that although the law may have a “lasting and painful impact” on sex offenders, it amounts to a regulatory scheme for notifying the citizenry about public information. As such, the majority found it was not punishment, so could not violate the Constitution’s ex post facto clause, which bars enactment of new punishments for old crimes. In dissent, Justice John Paul Stevens said it was “clear beyond peradventure” that the Alaska law is punitive. Justices Ruth Bader Ginsburg and Stephen Breyer also dissented. � Connecticut Department of Public Safety v. Doe, 01-1231, a procedural due process challenge to Connecticut’s Megan’s law brought by a sex offender who objected to the registration and Internet posting of his name. The Second Circuit U.S. Court of Appeals found that the law was a violation of due process because it deprived people of a “liberty interest” and did not give convicted sex predators an opportunity to prove they are no longer dangerous. The court unanimously overturned the ruling, with Chief Justice William Rehnquist writing that the question of current dangerousness is “of no consequence,” because the law only reveals past convictions. “Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest,” Rehnquist wrote. He held open the possibility that Megan’s laws could still be challenged as violations of substantive, rather than procedural, due process. Justice David Souter also wrote to suggest that the laws could be open to equal protection challenges as well. � Ewing v. California, 01-6978. Because of California’s Three Strikes law, Gary Ewing’s theft of three golf clubs in Los Angeles County in 2000 resulted in a sentence of 25 years to life. California courts upheld the sentence, and the Supreme Court by a 5-4 majority also said it was constitutional. Justice Sandra Day O’Connor acknowledged the Three Strikes law has been criticized, but in her majority opinion said, “We do not sit as a super-legislature to second-guess [the legislature's] policy choices. It is enough that the state of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way.” Breyer, who read parts of his dissent from the bench, said that on the basis of comparison with other sentences and jurisdictions, Ewing made a strong claim that his sentence was “grossly disproportionate to the triggering offense conduct — stealing three golf clubs — Ewing’s recidivism notwithstanding.” Also dissenting were Stevens, Souter and Ginsburg. � Lockyer v. Andrade, 01-1127. The Three Strikes triggering offense for Leandro Andrade was the theft of videotapes from two Kmarts in California within two weeks in 1995. He was sentenced to two consecutive terms of 25 years to life in prison — one term for each theft. The sentence was upheld by state courts, but upon habeas corpus review by the federal courts, it was overturned by the Ninth Circuit U.S. Court of Appeals. Noting that the scope of federal review was limited by the federal Anti-Terrorism and Effective Death Penalty Act of 1996, O’Connor said the California courts’ determination was not “objectively unreasonable” in its application of Supreme Court precedent. In dissent, Souter said the California court’s affirmance of the ruling was unreasonable and irrational. “Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes,” wrote Souter. Stevens, Ginsburg and Breyer joined the dissent. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’ s Washington, D.C., affiliate Legal Times.

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