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.