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Maine Superior Court Decision By Larry Neely RSOL New Mexico This is in response to the recent decision in the state of Maine. Many are disappointed that a “Superior Court” found that the current version of Maine’s Sex Offender Registration and Notification Act (SORNA) is “constitutional.” First, let’s keep in mind that the Superior Court is actually only a trial-level court, not an appellate court. Second, we need to put the ruling in perspective, and consider that the court’s decision is based on the current law which recently underwent significant change as a result of successful litigation.1 Finally, keep in mind that this decision will likely be appealed. As a result of successful litigation, Maine’s Legislature enacted changes to its SORNA that may be sufficient to bring it within the limitations of the U.S. Constitution. Unfortunately, many individuals in this cause are mistakenly hoping that someday there will be a ruling that ends sex all offender registration. Unfortunately, that day will probably never come, certainly not in my lifetime. The United States Supreme Court has ruled that sex offender registration in and of itself is not unconstitutional. In fact, we have many registration schemes operating throughout the country that are clearly constitutional. We require registration of motor vehicles, voters, weapons, vehicle operators, and school children. The test of constitutionality is at what point does the additional requirements added to a state’s SORNA transform that state’s supposedly remedial and “non-punitive regulatory scheme” into one that inflicts punishment. The United States Supreme Court answered that question when it considered an ex post facto challenge to the Alaska sex offender Registration Act. Smith v. Doe, 538 U.S. 84 (2003). In Smith, the plaintiffs were two people who had been convicted of sex offenses before Alaska’s Act became effective but who were included within the coverage of the Act. Id. at 89-90. The Supreme Court first analyzed whether the Alaska Act was intended to be civil or criminal. Id. at 92. Despite the fact that provisions of the Act are located in the Criminal Procedure Code, the Court found that the (Alaska) Legislature intended that the Act to be civil. Id. at 94-95. In reviewing the “most relevant” of the Mendoza-Martinez factors, the Court concluded that the Act was not punitive and the challengers had not shown that the effects of the Act negated the Legislature’s intent “to establish a civil regulatory scheme.” Id. at 105. The Supreme Court found that the Alaska Act “does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Smith v. Doe, 538 U.S. at100. 1

As of this writing, the Court’s opinion is not available to me. My opinion is based entirely on Maine’s Sex Offender Registration law with recent amendments that were done as a result of earlier litigation.

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The Mendoza-Martinez factors, phrased in question form are: · · · · · · ·

Does the sanction involve an affirmative disability or restraint? Is the sanction regarded historically as punishment? Does the sanction come into play only with a finding of scienter? Does the operation of the sanction promote retribution and deterrence? Is the behavior to which the sanction applies already a crime? Is there an alternative purpose to the sanction reasonably related to it? and Is the sanction excessive in relationship to the alternative purpose?

Most everyone realizes that much has changed in state registration schemes since Smith was decided. It should be noted that Alaska’s registration did not include the frequent “in-person” reporting requirements contained in most state registration schemes in operation today, nor did it impose any restraint on where a registrant could travel, work, or reside. Subsequent to Smith, the Supreme Courts of Alaska and two other states have found that their registration schemes have been sufficiently transformed to in fact be punitive. Most reviewing courts will apply the “Intent Effects” test as utilized by the Supreme Court in deciding Smith. The “Intent-Effects” test requires a determination of whether the Legislature, in establishing the mechanism, indicated either expressly or impliedly a preference for one label or the other. If it is clear that the Legislature intended that the requirement be punishment, that would end the court’s inquiry with a finding that the mechanism is unconstitutional. On the other hand, if it appears that the Legislature intended the statute to be remedial, the “Intent Effects” test requires the challenging party2 to demonstrate, by the clearest proof, that the statutory scheme is so punitive either in purpose or effect as to transform what was intended as a civil remedy into a criminal penalty. Maine Supreme Judicial Court The most significant case occurring in Maine that forced the Legislature to act was State v. Letalien, 2009 ME 130, 985 A.2d 4 (Me. 2009). Eric Letalien pleaded guilty to gross sexual assault against a thirteen-year-old girl, and was sentenced on August 30, 1996. The state of Maine began sex offender registration in 1992, and amended it in 1995. The amendments were effective on July 4th, 1996. Under that registration scheme, the sentencing court had the authority to waive the registration requirement. The registration requirement could be waived "upon a finding that the offender has shown a reasonable likelihood that registration is no 2

This means that the registrants challenging must prove that the requirements impose punishment. A challenger will likely need the assistance of very expensive expert witnesses to testify regarding the punitive aspects of registration. This is crucial for registrants to understand because all statutes enacted begin with the presumption that they are constitutional. Only the clearest of proof will suffice to overcome that presumption.

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longer necessary and waiver of the registration requirement is appropriate." 34-A M.R.S. A. § 11121 (6)(C) (Supp. 1996). Letalien was released from prison in 1999, after serving twenty months of incarceration. Unfortunately, by the time of his release, the legislature had enacted the SORNA of 1999, hereinafter, referenced as SORNA of 1999. SORNA of 1999 included requiring registration for a plethora of new offenses, and imposed additional requirements on the registrants that were more demanding than those of the prior versions. In addition, a court could no longer exempt a person from registration. The legislature applied SORNA of 1999 prospectively. SORNA of 1999 established two categories of sex offenders, “sex offenders” and “sexually violent predators.” SORNA of 1999 required those offenders that fell into the sexually violent predator category to report in-person every ninety days as opposed to the previous requirement to report only if the registrant’s address had changed. In 2001, Letalien became subject to the more stringent requirements after the legislature amended SORNA of 1999 decided to apply it retroactively to all registrants. Also, Letalien’s period of registration was retroactively increased from fifteen years to lifetime. Subsequent to the 2001 changes, the legislature amended SORNA of 1999 several more times to include additional restrictions and notification requirements for registrants. In July 2007, Letalien was charged with “failure to comply” with SORNA. It was alleged that he did not verify his registration as required. Letalien moved to dismiss the charge, challenging the retroactive application of SORNA of 1999. He alleged the retroactive changes violated the United States as well as Maine’s Constitution. The District Court agreed and dismissed the criminal complaint. The court issued comprehensive factual findings that detailed the negative effects that sex offender registration and Internet posting have had on Letalien’s ability to obtain and maintain employment, his role as a husband and parent, and his standing in the community. In its legal analysis, the District Court relied on Doe v. District Attorney, 2007 ME 139, 932 A.2d 552. As stated earlier, the first Mendoza-Martinez factor is whether SORNA involves an affirmative disability or restraint. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Smith, 538 U.S. at 99-100. In Smith, the Supreme Court concluded that this factor indicated that the Alaska statute was civil because it imposes no physical restraints, it restrains no activities sex offenders may pursue, and it leaves them free to change jobs or residences. Id. at 100. The Court further concluded that any occupational or housing disadvantages that could occur as a result of the procedures employed under the statute would occur in any event because the information about the individual's conviction is already in the public domain. Any adverse consequences flow not from the availability of the information by virtue of the Alaska sex offender statute, but from the fact of a criminal conviction that is already a matter of public record. Id. at 10001. Letalien asserted that the Alaska statute is distinguishable because it did not contain provisions similar to those in SORNA of 1999 requiring quarterly, in-person 3


verification procedures. The Letalien Court agreed because those 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." The state unsuccessfully relied on Smith to support its position that the issue was closed. Letalien argued that Smith was distinguishable from SORNA of 1999. The Court agreed that the state’s reliance on Smith was misguided because Alaska’s statute was in fact distinguishable. Letalien argued that Alaska’s statute did not contain provisions similar to those contained in SORNA of 1999, which require a person to appear in person quarterly, or within five days of a change, and impose substantial restrictions on movement and employment. Those provisions are very similar to those now required by many states. The majority in Smith concluded that the procedure at issue, which did not require updates to be made in person, did not amount to a form of “supervision.” See Smith, 538 U.S. at 101. The Maine Supreme Court observed; “Here, however, quarterly, in-person verification of identify and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph for the remainder on one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint this is neither minor nor indirect.” In response to the Court’s decision in Letalien, Maine’s legislature took steps to remedy the court’s concerns. As originally, enacted, Maine’s registration was only applied prospectively to those individuals convicted after its inception date of 1992. Subsequently, in 2005, the legislature extended the reach of SORNA an additional 10 years by including those convicted between 1982 and 1992. The post Letalien “legislative fix” was that those registered prior to the enactment of SORNA of 1999, and those convicted between 1982 and 1992 will no longer be required to verify their registration in person. Those individuals will receive notification by mail, and will be permitted to verify the accuracy of their registration by mail. Based on the limited research I did, I am uncertain if those pre-1999 registrants will have their photographs posted on the Internet. It remains to be determined of the “legislative fix” will prove sufficient to keep Maine’s SORNA within constitutional limits. Lesson Learned The important lesson for us to take from this is that there is no single court decision that will end sex offender registration. Having said that, I want to make it clear that Judicial Intervention is a vital part of this movement. Without, the court’s intervention, Maine’s legislature would not have taken the steps that they recently undertook to ameliorate the effects of registration. However, those with ongoing litigation must understand that court intervention can only protect us from those laws that are clearly unconstitutional. They cannot protect us from bad public 4


policy choices made by our elected officials. I would like to insert a quote by United States District Judge Richard Kopf when he ruled on the Nebraska’s Plaintiffs’ Motion for Preliminary Injunction. Judge Kopf Stated that, “I am not a fan of laws like this one. If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional. I am pretty sure that this enactment will divert attention and money from policing the monsters.” He also stated that, “I also worry that this law will incite a virulent form of vigilantism against the hapless, but my likes and dislikes don’t matter. In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them [to be] dumb or distasteful.” Most individuals I have met in this movement are stanch believers in the constitution’s separation of powers. The Courts do not exist to protect us from poor choices we make when we elect individuals to our General Assemblies or Congress. In fact, if courts were to undertake such decision-making on our behalf, I believe many would revolt and remove those particular judges from office. Therefore, it is imperative that leadership of this movement accept the reality that the change in attitudes regarding registration must be achieved through an effective legislative and education agenda. The courts alone cannot save us from bad lawmaking.

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Maine Superior Court Decision - By Larry Neely (RSOL New Mexico)