Smith v. Doe - Oral Argument - November 13, 2002

Smith v. Doe

Media for Smith v. Doe

Audio Transcription for Opinion Announcement - March 05, 2003 in Smith v. Doe

Audio Transcription for Oral Argument - November 13, 2002 in Smith v. Doe

Theodore B. Olson:

Thank you, Mr. Chief Justice, and may it please the Court:

Take me off the list.

Theodore B. Olson:

Congress and the legislatures of 50 States have agreed that citizens should have access to truthful information concerning the identity and location of convicted sex offenders.

Would you say, nonetheless, it's still punitive?

Well, I suppose that the public in theory has access to it anyway because convictions are a matter of public record, and presumably any citizen who wanted to dig deep enough could find out who had been convicted of what.

Are you saying that even if someone made no showing at all of lack of dangerousness, this is... it would be ex post facto and therefore must fall?

What this scheme involves is getting a big megaphone, in effect, making it more readily available.

Darryl L. Thompson:

If I... Justice Ginsburg--

Is that what we're talking about here?

You... you are asserting that Doe I and II are people who are no longer dangerous.

Theodore B. Olson:

I don't agree with the characterization of this as a megaphone.

Darryl L. Thompson:

--Yes.

Theodore B. Olson:

What I... what I would characterize it instead of saying it is the least intrusive, most passive way to provide information that is already available to citizens, and can be obtained by citizens, but to make it more accessible to them because the people have decided that they want this information.

But I'm asking you about the people in this large category who are still dangerous, or at least have made no showing that they are not dangerous.

But it isn't passive because you have a lifetime obligation to update it.

You would have the same ex post facto argument with respect to those people?

Theodore B. Olson:

Yes, but it's--

Or does it depend, to some extent, on the ability to show that you are not dangerous?

It is not passive.

Darryl L. Thompson:

First of all, I think we would... we would take the position that in the absence of any criteria of actual present dangerousness demonstrates that... that the legislature is aimed at the prior conviction and tacking on certain responsibilities to the prior conviction as opposed to really trying to fit the goal here of protecting the public from dangerous people.

Theodore B. Olson:

--But it's... but it's minimally passive and... and minimally--

But if the legislature says we don't want this to be punitive, therefore we will give everyone who was a convicted sex offender an opportunity to show that they're no longer dangerous, and then there will be a determination made, yes, you are, no, you're not, would you still be making the ex post facto argument for the people who have not shown they're no longer dangerous?

Now we're up to minimally passive.

Darryl L. Thompson:

I think it would certainly be a closer call, and--

Theodore B. Olson:

--Well, Justice Kennedy, we have to register to vote.

Why would it be a--

Theodore B. Olson:

We have to register to marry.

Darryl L. Thompson:

--and my clients would certainly invite that hearing.

Theodore B. Olson:

We have to register to get a driver's license.

--Why would it be a closer call?