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Justices Get Tough On Crime

Attorney Andrew Cohen analyzes legal issues and cases for

Wednesday was a great day for prosecutors, legislators, Webmasters and those among the rest of us who think that certain criminals just can't get enough punishment. It was a bad day for criminal defendants, ex-convicts, petty thieves and those among the rest of us who think that judges shouldn't always defer to legislators when it comes to making new rules for the criminal justice game.

In a series of tough-on-crime decisions announced within minutes of each other, the Supreme Court in one morning resolved in ways large and small two of the most controversial legal initiatives of the 1990s. In a 5-4 vote, the Court upheld the validity of California's "three-strikes" law — the statute that enables prosecutors and judges to sentence repeat offenders to up to life in prison for relatively minor crimes.

The justices also ruled in two cases raising "Megan's Law" questions: That states don't improperly punish convicted sex offenders when officials post their names, addresses and photos on the Internet; and that such offenders aren't entitled to a hearing to convince those officials that they don't need to be on the list because they are no longer dangerous.

The Court's "three-strikes" ruling creates a safe haven for the 25 other states and the federal government that have similar laws. It also ought to encourage legislators in the remaining 24 states to enact such laws if they are otherwise inclined to do so. Any challenge to these statutes now will have to navigate around the Court's ruling that the Eighth Amendment's prohibition against "cruel and unusual" punishment isn't triggered by a scenario in which, Valjean-like, habitual thieves are sentenced to life in prison for stealing, for example, golf clubs or video cassettes.

It's still possible that we could subsequently see a successful challenge to California's multiple-offense law or related laws around the country. But that challenge would have to present such an extraordinary fact pattern — such an onerous punishment following such a trivial infraction — that it's hard to imagine it unfolding anytime soon. Unless and until the calculus of justice alters itself again as it does from time to time, or unless the calculus of Justices on the Court is revised by a vote or two, "three-strikes" laws are here and here to stay, whether you like them or not.

The Court's rulings Wednesday on sex offender laws in Alaska and Connecticut are narrower, but no less significant. The Alaska ruling stands for the proposition that publishing basic information online about convicted sex offenders doesn't violate their constitutional rights to be protected from double punishment for the same crime.

By a 6-3 margin, the Court ruled that since the information posted is truthful, and since it arguably serves a legitimate government interest in allowing a community to inform itself about the whereabouts of sex offenders, those offenders must suffer whatever humiliation the online sites create for them.

In the Connecticut "Megan's Law" case, the Justices ruled that a state doesn't have to give sex offenders a separate hearing to determine whether or not they pose a danger in the future before posting their critical information online. This ruling means, in effect, that sex offenders are presumed to pose a risk of recidivism and aren't entitled even to argue that they can peaceably live in a community after they have served time in prison. Think of this ruling as a significant extension on the practice of requiring convicted felons to disclose that fact when they apply for a job, a loan, or just about anything else.

The rulings in both areas share one basic theme. In both instances, a majority of Supreme Court Justices were willing to defer significantly to the legislative choices made by elected officials. In the California "three-strikes case," Justice Sandra Day O'Connor, who wrote for the slim majority, said the Court was not required to overturn a policy decision made by "the California legislature" when it "made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime."

In the Megan's Law cases, meanwhile, Chief Justice Rehnquist wrote for the majority that even if the offender challenging the law "could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed."

In other words, instead of looking further into whether Connecticut's collective judgment is or is not constitutionally valid, the Court simply deferred to it — for now.

By Andrew Cohen