Is a battle on sex offender registration brewing?

Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.'” Kansas v. Hendricks. The factors are:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Comparing the conclusion reached by SCOTUS in Smith on the first factor to Maine’s SORNA law (and reality), the court finds that SORNA is indeed punitive in nature because it imposes an affirmative disability:

These provisions, which require lifetime registrants, under threat of prosecution, to physically appear at their local law enforcement agencies within five days of receiving a notice by mail, place substantial restrictions on the movements of lifetime registrants and may work an “impractical impediment that amounts to an affirmative disability”.

Here, however, quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint that is neither minor nor indirect.

The court then evaluates the other factors, finding some to be in favor of the state, some neutral and some in favor of the defendant. But viewing them as a whole, the court cannot escape the conclusion that enhancing a defendants registration requirements which were imposed as part of a sentence before the change in the law necessarily violates the EPF clause.

There is no dissent, but there is a concurrence by one Judge who would have gone further than the majority. He cites an Indiana Supreme Court decision, Wallace v. State (2009), which also held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the EPF clause of the Indiana Constitution. The Wallace court concluded:

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view— advancing a non-punitive interest—points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

So now we have two 2009 decisions holding that the retroactive application of SORNAs violates the EPF clause of the Federal constitution and a State constitution with identical language. This seemingly goes against SCOTUS’ holding in Smith, but I think that opinion was wrong and was very narrowly tailored. Will they revisit it? I’d love them to.

I wonder how such a challenge would play out in Connecticut. In the currently existing jurisprudential landscape, the prospects seem dim. Our Appellate Court has seemingly characterized Megan’s Law requirements as “collateral”, thus rejecting the notion that a defendant needed to be advised of the registration requirement at the time of plea and sentencing and the Supreme Court has held that Megan’s Law in CT is not punitive in nature at all. [Google Scholar doesn’t seem to have a link to that decision, so the link is to a later decision that discusses and expands on the same ideas.] That Supreme Court decision, however, was in 2001 and since then there have been new versions of Megan’s Law here in CT. I think the time might be ripe for an all out assault on this piece of legislation.

8 thoughts on “Is a battle on sex offender registration brewing?

  1. Shelomith Stow

    It is good to see Maine courts joining other states that have recognized the unconstitutionality of these laws. Hopefully their decision is also driven, partially at least, by recognition that these laws do nothing to protect the public but do much to harm families and children. The next step is to remove from all registries everyone whose offense was consensual, non-contact, non-violent, victimless, or did not involve a child. Only then when the registries reflect the truly dangerous, sexually violent rapists and child molesters will it be a tool that can actually help law enforcement rather than hinder them.

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  2. RWVNRAL

    It would appear to me that the time has long since arrived where a viable, nationally visible, legal resource center dedicated to the cause of Sex Offenders ought to be established. I wonder why the legal community doesn’t pull together some key players in the general area of sex offense litigation to make this a reality. With 700,000 registered sex offenders in the nation, certainly there is enough support for changes to these onerous laws in order to raise the money which would be necessary to support such an endeavor.

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  3. Samuel Storns

    I agree in your view about the Smith decision. It cites the fact that the law under scrutiny in that case did not make in person registration mandatory nor did it restrict where an individual may live or work. All sex offender laws today do all of that and more. They also cited overwhelming evidence that “sex offenders” have a higher rate of recidivism, which has been proven to be inaccurate. I find it interesting that the Alaska Supreme Court also struck down subsequent laws on EPF grounds.

    I do believe there is a sex offender case before SCOTUS now.

    This battle has been brewing for a decade or more.

    The minute we let our governments pass laws like this that restrict freedoms retroactively of any group of people is the minute we are all in danger. We have essentially given our government free reign to pass any laws they wish by simply inserting the words “to protect.” That puts all of our liberties at risk moving forward.

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  4. Mark in Jersey

    Currently, Connecticut’s Megan’s Law is not as punitive as the Federal SORNA guidelines…

    1. In Conn. you get off the registry after ten (10) years.

    If SORNA was implemented, S.A. 4th degree (case of 18 Y.O. touching his 13 Y.O. girlfriend), in violation of §53a-73a, would require registration for (25) years (any sex offense involving a minor is at least a Tier II offense under SORNA), as would Public Indecency (§53a-186) around a minor. In the case of a S.A. 2nd degree, even in the case of a “consensual” sexual situation (19 Y.O. has sex with 15 Y.O) in violation of §53a-71, this triggers a lifetime registration (penetration of a minor is a Tier III offense under SORNA).

    2. Under SORNA, those that already completed their ten (10) year registration period (depending on the legislature’s language) might have to re-register! Those that never had to register, will, as it is retroactive, covering ANY and ALL past convictions!

    3. In Conn., registration is done annually by mail. SORNA would change that to in-person, at the police station, and as frequently as every 3 months (Some probation visits aren’t as frequent!)

    4. Juveniles delinquents (over 14, adjudicated for a S.A. 1st-type offense) would have to register under SORNA, as well as (in all probability) those who received “Accelerated Rehabilitation”, as SORNA considers “any penal consquences” such as probation or diversionary programs a “conviction”, even if that conviction is “vacated” or “set aside”!

    5. In Conn. there are ways to get off the registry by petitioning the court. Common ways to get off of the “public registry” are found in §54-255:

    For example, (c.)(1) applies to those under 19 who committed a “statutory rape” type of offense. Subparagraph (c.)(2) applies to those convicted of a S.A. 4th (touching only) type offense. Subparagraph (c.)(5) applies to those who “…(A) served no jail or prison time as a result of such conviction…(B) has not been subsequently convicted [of a sex offense]…”

    I.e. Most low-level offenders plead guilty to Risk of Injury under §53-21, where there is no mandatory minimum, and get probation only. Thus if they were convicted under the “old” Megan’s Law, they qualify for the 54-255(c.)(5) exemption.

    Unfortunately, these exemptions only apply to those convicted on or before September 30, 1998. SORNA is likely to eliminate ALL exemptions!

    .. But changes are coming, since Conn. will have to implement SORNA to some degree… and the registry will be so diluted with harmless offenders that it will be useless!

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  5. david

    My case goes back to 1982, in Kentucky and I served time there and paroled in 1985, and did not involve a child. However in 2006, while living in Florida, I was forced to register which caused me to lose a job of where I was employed and was making over 100000 a year and I lost my home with it as well, I contacted Kentucky and Kentucky had told me I did not have to register in their state because my charge was long before the new law.. I left the state of florida and went back to kentucky. I contacted florida and asked them to remove me since I no longer lived in their state and was told they would not remove me. It is certainly a punishment added to me. I am sure there are others that are having this punishment added to them as well.. So all the years of moving forward and becoming productive citizens is being tossed into the trash..

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  7. Randy

    Same thing happened to me as David above. My case goes back to 1984 when I was 21 and does not involve children. I served my time, got paroled, earned a BS, moved to GA, started a successful career, got married, had three children, bought a house, and was earning $97000 per year. Alabama forced me to leave my career which caused me to lose my house and now I’m divorced. We were married for 16 years. Now I cannot find work in Alabama and will be forced on Welfare after my retirement savings are exhausted. Yes, it certainly is punitive, and has not protected any member of society.

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