Cosner v State

Folks need to remember, just because his appeal was denied, doesn't mean the court ruled a FTR Charge can be considered a sex crime, the court did not rule on the merits of the issues. The court ruled he failed to follow his administrative remedies, so the issues are still open for later review (if necessary) after he completes an administrative appeal with the DOC (He needs to review that DOC Policy).

3-12-2013 Mississippi:

Cosner v State
No. 2012-CP-00101-COA.

Chris Cosner appeals the circuit court's dismissal of his second motion for post-conviction collateral relief (PCR). Cosner argues the Mississippi Department of Corrections (MDOC) erred when it deemed his failure to register as a sex offender as a "sex crime" and his conviction of possession with intent as a crime of violence. Cosner argues that this treatment makes his sentence mandatory day-for-day and makes him ineligible for parole, meritorious earned time, and trusty status. His second PCR motion is based on the same grounds as his first PCR motion, but with different named defendants. We find no error and affirm.

FACTS
¶2. On February 6, 2009, Cosner pled guilty to three charges: (1) possession of greater than 500 grams of marijuana (schedule I) with intent to sell, transfer, or distribute; (2) possession of greater than 100 dosage units of Alprazolam (schedule IV) with intent to sell, transfer, or distribute; and (3) failure to register as a sex offender.

¶3. Cosner filed his first PCR motion on December 7, 2009. In this motion, Cosner argued that he would not have pled guilty if he had been told that he would have to serve day-for-day and that his charges were considered violent. He also argued he was under mental duress at the time of his plea and that his counsel was ineffective. An evidentiary hearing was scheduled for August 13, 2010. On the morning of the hearing, Cosner decided to withdraw his motion before the hearing began.

¶4. Cosner then filed his federal habeas petition on November 15, 2010. He admitted that he had "not pursued an appeal or completed post-conviction remedies available to him in state court."

... ... ...

¶14. Cosner claimed a denial of "due process of law rights and double jeopardy for punitive punishment for a crime already consummated." Cosner's sentence expiration argument is a challenge to MDOC's policies. Practically speaking, Cosner requested a review of his inmate classification. "For many such questions regarding confusion about the operation of the state's system of incarceration, the proper procedure is for a prisoner to seek relief through the administrative processes of the Department of Corrections." Burns v. State, 933 So.2d 329, 331 (¶9) (Miss. Ct. App. 2006) (citing Miss. Code Ann. §§ 47-5-801 — 47-5-807 (Rev. 2004)).

¶15. Agency procedures first, rather than post-conviction collateral relief, govern certain issues like inmate classification. Id. (citing Lewis v. State, 761 So.2d 922, 923 (¶¶3-4) (Miss. Ct. App. 2000)). Classification of inmates is not an issue properly brought in a PCR motion; rather, it is within the administrative purview of the MDOC. Cosner should pursue administrative remedies available through the procedures of the MDOC. Therefore, we find no error and affirm.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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Article: Inmate loses appeal in classification dispute

State v Overstreet

3-19-2013 Louisiana:

State v Overstreet

This case comes to us on appeal from a district court's ruling that La. R.S. 15:541(7)1 and 15:542,2 laws requiring registration for sex offenders, are unconstitutional as applied to a person who pled and was found not guilty by reason of insanity to a sex offense. Having reviewing the record and the applicable law, we reverse the judgment of the district court because the respondent failed to sufficiently particularize any basis for finding the statutes unconstitutional.

... ... ...

CONCLUSION
The state in the present case contends that respondent has not sufficiently particularized the grounds of his claim that the statutory provision requiring sex offender registration is unconstitutional. The state's contention has merit. This Court has expressed the challenger's burden as a three-step process. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Further, a district court may not sua sponte rule that a statute is unconstitutional, nor can it declare a statute unconstitutional on grounds other than those asserted by a movant.

At best, respondent merely claimed the law was "arbitrary, capricious and makes no sense" because he was not convicted of a crime, but instead pled not guilty by reason of insanity. He seemed to be claiming an equal protection violation, but never explained the basis of that claimed violation. As a result of this lack of particularization, the state was afforded insufficient opportunity to brief and argue in response.10 In addition, as in Hatton and Bertrand, the trial court's ruling here was based on constitutional grounds not properly raised, and indeed not raised at all, by respondent. Accordingly, we reverse the district court on this basis.

DECREE
For the reasons stated herein, the judgment of the district court, declaring La. R.S. 15:541(7) and La. R.S. 15:542 unconstitutional as applied to a defendant judged not guilty by reason of insanity, is reversed, and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

State v Divine

1-28-2011 Kansas:

State v Divine
No. 102,907.

Anthony Divine directly appeals from the district court's determination that he must continue to register as a sex offender despite an expungement of the conviction for which he was required to register. Finding that the expungement provisions of K.S.A. 2010 Supp. 21-4619 do not provide for the disclosure of the expunged offense through sex offender registration, we reverse.

FACTUAL OVERVIEW

In 2003, Divine pled guilty to lewd and lascivious behavior. The district court convicted Divine and placed him on probation. Thereafter, pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., Divine was required to register as a sex offender for 10 years. In addition, the registration requirement was made a condition of Divine's probation. Ultimately, Divine successfully completed his probation in 2005. He continued to register as a sex offender.

Some 3 years after completing probation, Divine filed a petition for expungement of the lewd and lascivious conviction. Apparently, the court did not conduct a formal hearing on the petition but rather it accepted and executed a journal entry which had been approved by the prosecutor and defense counsel. The expungement order was filed November 26, 2008.

Thereafter, Divine filed a motion to lift the registration requirement, arguing that the expungement had erased the conviction for which he was required to register. The State responded that the district court lacked jurisdiction to address the issue because Divine was statutorily required to register because of the conviction, rather than as a condition of probation. The district court found that K.S.A. 22-4908 prevented the court from granting Divine's motion. Divine was ordered to continue registering as a sex offender until July 8, 2013.

Divine filed a timely notice of appeal to the Court of Appeals. This court transferred the appeal on its own motion, pursuant to K.S.A. 20-3018(c).

... ... ...

In conclusion, we find that the expungement of Divine's lewd and lascivious conviction terminated his status as an offender required to register under KORA. The expungement statute does not provide an exception for the disclosure of the expunged conviction through KORA registration, and the expungement order in this case did not make such disclosure a special exception under K.S.A. 2010 Supp. 21-4619(f)(3). The district court should have found that Divine's registration requirement terminated as a matter of law, and such an order would not have run afoul of K.S.A. 22-4908.

The district court is reversed. The matter is remanded with directions to the district court to rescind its order that Divine must register until July 8, 2013, and to enter an order that Divine's registration requirement has terminated as a matter of law.
Reversed and remanded with directions.

John Does of Connecticut and Florida v Raemisch et al

This is by far the oddest case, start with its Title, then this case is Both UNFAVORABLE and FAVORABLE (Fees), really wild, must read to understand.

1-3-2013 Wisconsin:

John Does of Connecticut and Florida v Raemisch et al
Case No. 10-C-0911.

Plaintiffs, both individuals who had previously been convicted of sexual assault in Wisconsin, brought this action challenging the constitutionality of Wisconsin's sex offender registration and notification statute, Wis. Stat. §§ 301.45, 301.46 (2009-10), as applied to individuals whose convictions preceded the statute's effective date. Although constitutional challenges to the retroactivity of similar statutes had been previously been rejected by other courts, including the United States Supreme Court, plaintiffs brought a broad-based challenge against the entire statutory framework. Plaintiffs claimed that the statutes impose punishment in violation of the ex post facto clauses of the United States and Wisconsin constitutions, and that the laws violate plaintiffs' constitutional rights to equal protection and substantive due process. On August 28, 2012, the Court issued an order rejecting in full all but one of plaintiffs' claims. On the parties' cross motions for summary judgment, the Court granted the plaintiffs' motion in part, finding the § 301.45(10) requirement that plaintiffs pay a $100 annual assessment constituted an unconstitutional ex post facto fine. In all other respects, the Court denied plaintiffs' motion and granted defendants' motion. Pursuant to Federal Rule of Civil Procedure 59(e), both parties have now filed motions for reconsideration of the Court's decision as to the ex post facto and equal protection issues. For the reasons that follow, both motions will be denied.

Plaintiffs move the Court for reconsideration on several grounds, contending first that the Court erred in failing to find that Wisconsin imposes in-person reporting requirements that make Wisconsin's sex offender registration law materially different than the Alaska law considered in Smith v. Doe, 538 U.S. 84 (2003), and as a result Smith is not controlling. Rather, plaintiffs argue the in-person reporting requirements amount to physical restraints similar to criminal sanctions. Plaintiffs contend that the Court relied on an erroneous characterization of plaintiffs' Statement of Proposed Findings of Fact in concluding that plaintiffs failed to put forth proof of physical restraints on their liberty such that the law's execution is punitive. Second, plaintiffs argue the Court "misapprehended the arbitrariness" of Wisconsin's sex offender registration law with regard to its application to offenders based on the statute's effective date. (Pls.' Recons. Br. 7, ECF No. 61.) As such, plaintiffs contend the Court's conclusion that plaintiffs failed to demonstrate that they were similarly situated to the favored class and that plaintiffs failed to establish there was no rational basis for disparate treatment under the law was erroneous.

In addition, defendants seek reconsideration of the Court's decision granting summary judgment in favor of plaintiffs as to the unconstitutionality of the $100 annual assessment. Defendants contend that the "specific fee issue addressed by the court was not squarely raised prior to the summary judgment decision" and is therefore appropriate for reconsideration. (Defs.' Recons. Br. 2, ECF No. 59.) Defendants assert that the Court incorrectly applied the law in concluding the $100 annual assessment imposed under § 301.45(10) constitutes an unconstitutional ex post facto fine.

... ... ...

Defendants also contend that the Court misapplied the law in analyzing Taylor v. State of Rhode Island, 101 F.3d 780 (1st Cir. 1996). Defendants suggest that Taylor counsels in their favor, arguing that the Court should follow Taylor in holding that retroactively imposing a "modest" fee in order to recoup the costs of a supervisory program is reasonable and nonpunitive. However, as already discussed, Taylor assessed a fee imposed to offset costs of services provided to offenders serving parole and probation sentences. 101 F.3d at 783-84. Defendants insist that the principles applied in Taylor are relevant here. However, here, the fee applies even after registrants have completed their sentences, and the registrants receive no benefits from their payment. Rather, the payment of the annual assessment is intended solely to benefit the public by funding a public safety regulatory regime. As such, I remain convinced that the $100 annual fee can only be seen as punitive.

CONCLUSION
In sum, I remain convinced that the $100 annual assessment imposed by Wis. Stat. § 301.45(10) constitutes an unconstitutional ex post facto fine, but that the other constitutional defects plaintiffs allege are without merit. The parties' motions for reconsideration fail to show a need to correct manifest errors of law or fact. While the parties generally re-argue their original positions on the constitutional issues and raise several points of disagreement with the Court's analysis, they have not established errors requiring reconsideration.

Accordingly, both plaintiffs' motion for reconsideration (ECF No. 60) and defendants' motion for reconsideration (ECF No. 58) are DENIED.

US v Cote

3-8-2013 Military Court:

US v Cote
Crim. App. No. 37745


Judge ERDMANN delivered the opinion of the court. Contrary to his pleas, Airman Adam Cote was convicted by a general court-martial with members of one specification of possessing child pornography, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). He was sentenced to a bad-conduct discharge, confinement for twelve months, forfeiture of all pay and allowances, and reduction to E-1. The convening authority approved the adjudged sentence except for the forfeitures. The United States Air Force Court of Criminal Appeals (CCA) affirmed the findings and the sentence. United States v. Cote, No. ACM 37745, 2012 CCA LEXIS 106, at *17, 2012 WL 1058985, at *6. (A.F. Ct. Crim. App. Mar. 28, 2012).

While “technical” or “de minimis” violations of a search warrant’s terms do not warrant suppression of evidence, United States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005), generally “the search and seizure conducted under a warrant must conform to the warrant or some well—recognized exception.” United States v. Upham, 168 F.3d 532, 536 (1st Cir. 1999) (citing Marron v. United States, 275 U.S. 192, 196-97 (1927)).

We granted review to determine whether a search conducted in violation of a search warrant’s post-seizure time limitation renders the search unreasonable.1 We conclude that under the circumstances of this case, the Government’s violation of the warrant’s time limits for conducting an off-site search of the seized electronic device constituted more than a “de minimis” violation of the warrant and resulted in an unreasonable search.

We therefore reverse the decision of the CCA.

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Other Armed Forces opinions

City of South Milwaukee v Todd J. Kester

3-13-2013 Wisconsin:

City of South Milwaukee v Todd J. Kester

Todd J. Kester was convicted of sexually assaulting a child in 2000. In April 2010, Kester moved into a residence in the City of South Milwaukee that was within 1000 feet of an elementary school. The City has an ordinance that prohibits child sex offenders such as Kester from living within 1000 feet of elementary schools. Kester was told by the City that he had to move. Kester refused. The City filed an action in circuit court, asking the court to declare Kester’s residency a public nuisance and to enjoin him from living in the home. The circuit court granted the injunction and ordered Kester to move.

Kester appeals, arguing that his residency should not have been declared a nuisance without an individual determination of his dangerousness, that his right to procedural due process was denied as he was not permitted to show he did not pose a risk of harm to children, that the City’s ordinance is preempted by state law, and that the City’s ordinance as applied to him violates the Double Jeopardy and Ex Post Facto Clauses of the United States and Wisconsin Constitutions. We disagree and affirm the circuit court.

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Article: Court upholds sex offender residency rule

Doe I et al v Williams

This case, or should I say, cases, took place over 6-7 years in court. During that time, to complicate matters, the legislature made other changes in laws. Please read carefully esp. the highlighted parts below.

3-5-2013 Maine:

Doe I et al v Williams
2013 ME 24

John Does [litigants] I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and XLIII, joined by John Does XIX1 and XXIII, appeal from a summary judgment entered in the Superior Court (Kennebec County, Murphy, J.) in favor of numerous State officials on the parties' cross-motions for summary judgment.

The Does challenge the constitutionality of Maine's Sex Offender Registration and Notification Act of 1999 (SORNA of 1999), 34-A M.R.S. §§ 11201-11256 (2012). We affirm the trial court's judgment, concluding that SORNA of 1999 as amended following our decision in State v. Letalien, 2009 ME 130, 985 A.2d 4, does not violate the constitutional rights of the litigants before us.

Given the time it took to resolve this case (6-7 years) the only litigants left at the time of the decision were: John Does III, X, XIX, XXIII, and XLIII. None of these were eligible for the relief provided by the 2009 Letalien decision. There is no doubt this is a confusing case.

I. BACKGROUND2
[¶ 2] John Doe I was previously before us in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552. John Doe I pleaded guilty to and was convicted of unlawful sexual contact with a family member, id. ¶ 2, and in 1985 was sentenced to five years' imprisonment with all but sixty days suspended and two years' probation. He has not been convicted of any sex offenses since.

[¶ 3] In 2005, the Legislature amended SORNA of 1999 to apply retroactively to all sex offenders sentenced on or after January 1, 1982. P.L. 2005, ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202(1) (2012)); see Doe, 2007 ME 139, ¶ 14, 932 A.2d 552.

John Doe I sued several State officials in their official capacities, arguing that the retroactive application of SORNA of 1999 violated his rights to procedural and substantive due process, equal protection, and a civil jury trial, pursuant to the Maine and United States Constitutions. Doe, 2007 ME 139, ¶ 5, 932 A.2d 552. Upon the State officials' motion to dismiss, the Superior Court (Kennebec County, Studstrup, J.) dismissed John Doe I's complaint for failure to state a claim upon which relief could be granted. Id. ¶ 1.

John Doe I appealed, and we concluded that (1) further factual development was required to determine whether SORNA of 1999 was an unconstitutional ex post facto law3 as applied to him,4 and (2) he should not have been foreclosed from pursuing his other theories of relief. Id. ¶¶ 1, 36-37.

We then remanded the case to the trial court for further proceedings on those issues. Id. ¶ 37. On remand, John Doe I's case was consolidated with cases brought by other convicted sex offenders who were also challenging the retroactive application of SORNA of 1999.

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[¶ 4] In 2009, the Legislature created an exception from the duty to register for sex offenders meeting certain criteria who were sentenced on or after January 1, 1982, and before June 30, 1992. P.L. 2009, ch. 365, § B-3 (effective Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)).5 Sex offenders fall within the exception if, among other criteria, their underlying convictions did not include more than one Class A sex offense or sexually violent offense, they had no prior sex offense convictions, and they had no subsequent convictions for crimes punishable by imprisonment of one year or more. 34-A M.R.S. § 11202-A(1)(A)-(F). Because of the newly enacted exception, many of the John Does became eligible for relief from the duty to register and withdrew from the litigation. Some Does who were eligible for relief, however, chose to continue with the litigation along with the Does who were ineligible for relief.

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[¶ 5] We decided Letalien shortly after 34-A M.R.S. § 11202-A(1) became effective. Pursuant to the Sex Offender Registration Act of 1995, Letalien's sentence included a requirement that he register for fifteen years on the State's sex offender registry; the sentence provided that after five years Letalien could seek a waiver "upon a finding that [he] `ha[d] shown a reasonable likelihood that registration is no longer necessary and waiver of the registration requirement is appropriate.'" Letalien, 2009 ME 130, ¶ 5, 985 A.2d 4 (quoting 34-A M.R.S.A § 11121(6)(C) (Supp. 1996)). While Letalien was on probation, the Legislature enacted SORNA of 1999, which required him to register for life, prevented him from seeking a waiver, and established additional reporting requirements. Id. ¶¶ 6-8 (citing P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at 34-A M.R.S.A. §§ 11201-11252 (Pamph. 1999))). Letalien challenged SORNA of 1999 as unconstitutional under the Ex Post Facto Clauses of the United States and Maine Constitutions. Id. ¶ 1. We concluded that SORNA of 1999 "impose[d] an ex post facto punishment as to offenders sentenced in the years before the effective date of [the statute] for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements." Id.

[¶ 6] In response to the Letalien decision, the Legislature amended SORNA of 1999 by enacting P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)). The amendments extended the exception from registration provided by P.L. 2009, ch. 365, § B-3, making it available to qualifying offenders sentenced through September 18, 1999, the effective date of SORNA of 1999.6 See P.L. 2004, ch. 570, § 1. The amendments also changed the reporting requirements for offenders' registration information, such as residence and place of employment. P.L. 2004, ch. 570, § 4. Ten-year registrants are now subject to annual verification in writing and in-person verification once every five years. 34-A M.R.S. § 11222(4-A). Lifetime registrants are now subject to quarterly verification in writing and in-person verification once every five years. Id. § 11222(4-B). Additionally, if a law enforcement agency with jurisdiction over a registrant or the State Bureau of Identification has "reason to believe the [registrant's] appearance has changed significantly," the agency or Bureau may instruct the registrant to appear in person with a current photograph or to allow a new photograph to be taken, or may instruct the registrant to submit a new photograph without appearing in person. Id. § 11222(4-A)(C)(1)-(2), (4-B)(C)(1)-(2).

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[¶ 7] John Does I, IV, V,7 VI, VIII, and XVI were initially required to register, but successfully petitioned to be removed. John Doe XXIV was also required to register, but he obtained a temporary restraining order preventing his information from being publicly posted; he later successfully petitioned for removal from the registry. John Does VII, XIII, and XVIII obtained temporary restraining orders relieving them from registering, and they were also statutorily relieved of the registration requirement. John Does III, X, XIX, XXIII, and XLIII8 remain on the registry and have viable claims.

Here we see the various group of litigants (registrants).

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... ... ...

[¶ 21] The two remaining exceptions to mootness, for issues of great public concern and issues capable of repetition, are also unavailable to the Does who have been removed from the registry. Although it is true that the application of SORNA of 1999 is an issue of great public concern that is capable of repetition, the issue will not evade review because the cases of Does III, X, XIX, XXIII, and XLIII, who remain on the registry, are decided today. Therefore, the claims of the Does who had been removed from the registry are moot.

... ... ...

IV. CONCLUSION

[¶ 84] For the foregoing reasons, we affirm the trial court's decision that SORNA of 1999 is not an unconstitutional ex post facto law. The Does' other constitutional and statutory challenges are unpersuasive.

The court's decision only applies these Does, that is the key: John Does III, X, XIX, XXIII, and XLIII remain on the registry and have viable claims. AND, as to them the registry is NOT an ex post facto violation.

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See Article: Court upholds sex offender registration for those convicted before 1999

State copy of decision.

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Important notes made by court during decision:

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I. UNITED STATES CONSTITUTION
[¶ 87] There are several reasons why SORNA of 1999 is punishment and violates the United States Constitution. A look at some of the Mendoza-Martinez factors shows that many of them weigh in favor of finding the statute punitive.

A. Affirmative Disability or Restraint

[¶ 88] We determined in State v. Letalien that "SORNA of 1999 [prior to the ch. 570 amendment] impose[d] a disability or restraint that is neither minor nor indirect" because "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." 2009 ME 130, ¶ 37, 985 A.2d 4. Now, a lifetime registrant who was sentenced prior to September 18, 1999, is only required to report in writing every ninety days and report in person every five years, unless there has been a change in address or appearance. 34-A M.R.S. § 11222(4-B) (2012). Admittedly, this is a lower physical burden on the offender than predecessor acts' requirements that the offender report every ninety days in person. The level of state supervision, however, has not changed in a material way because the State still maintains and distributes the same amount of highly personal information about the offender.

[¶ 89] The effect of the registration and reporting requirements of SORNA of 1999 is substantially more burdensome than renewing a driver's license. Most notably, if the offender fails to comply with the reporting provisions in SORNA of 1999, he exposes himself to criminal liability, which reflects the punitive effect of the statute. See 34-A M.R.S. § 11227(1) (2012) (providing that the first offense is a Class D crime). In comparison, if an individual chooses not to renew his driver's license he is simply not permitted to drive. Although the changes to SORNA of 1999 have reduced the physical burdens on the offender, the State's supervision and control over the offender have not been reduced. This supervision and control, as we recognized in Letalien, signifies the punitive effect of SORNA of 1999.

B. Historically Regarded as Punishment

[¶ 90] Labeling a law's burden as civil instead of criminal does not reduce the level of punishment attached to the burden, nor should it reduce the constitutional protection connected to the burden.15 Likewise, a burden that was imposed as part of a sentence does not become less punitive if it is later imposed as part of a regulatory requirement that parallels sentencing.
[¶ 91] In Letalien, we provided a detailed description of the evolution of the sex offender registry in Maine. 2009 ME 130, ¶¶ 4-12, 985 A.2d 4. One aspect of the registry that has evolved is its relation to sentencing procedures. Beginning in 1996, the registration requirements of SORNA of 1995 were imposed as part of a sentence. P.L. 1995, ch. 680, § 4. Subsequently, the statute was amended to instruct the court to order convicted offenders to register at the time it imposed a sentence, but it was no longer "part of a sentence." P.L. 2003, ch. 711, § B-13. Although the statutory language removed the registry from the direct realm of sentencing, this change "did not, in itself, make the registration requirements less punitive or otherwise remove the constitutional infirmity." Letalien, 2009 ME 130, ¶ 74, 985 A.2d 4 (Silver, J., concurring).

[¶ 92] The stigma associated with publication on the Internet is demonstrative of SORNA of 1999's role as punishment and its punitive effects. See Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting) (noting that the public notification regimen of the registry "calls to mind shaming punishments once used to mark an offender as someone to be shunned"); Doe v. State, 189 P.3d 999, 1012 & n.98 (Alaska 2008) (noting that the act of registering is not analogous to shaming, but the dissemination provision is analogous). The public does not have access to the pictures, home addresses, and work places of those convicted of robbery, arson, embezzlement, or any other crime. We acknowledge that there is a stigma connected to any criminal behavior and there often is retribution by the public against those who have committed crimes. However, in no other area of the criminal law do we allow the public to have access to such personal information. Because these Does have not committed additional sex crimes since they completed their sentences, they were not required to be on a registry when the registry system was first created. Placing them on the registry now forces them to face additional public ridicule. See Human Rights Watch, No Easy Answers: Sex Offender Laws in the US 78-79 (2007), available at http://www.hrw.org/reports/2007/us0907/us0907web.pdf (discussing the serious impact the dissemination of registration information has on the registrants).

[¶ 93] In State v. Freeman we found that the civil proceeding by which some OUI laws were enforced had punitive consequences of the type that characterize criminal prosecution. 487 A.2d 1175, 1176-77 (Me. 1985) (finding the statute void because its purpose was frustrated). In our analysis of the civil OUI proceeding, we considered, in part, the effect that the pre-charging mechanism for OUI defendants had on one's reputation. Id. at 1178.16 In this consideration, we noted that the stigma from the pre-charging mechanism associated with the civil proceeding for the OUI offense paralleled the stigma associated with the criminal proceeding. Id. As a result, we found that the stigma was "highly suggestive of the true criminal nature of the procedure." Id.; see also State v. Anton, 463 A.2d 703, 708 (Me. 1983) (noting the lack of criminal stigma regarding the decriminalization of traffic offenses).

[¶ 94] Sex offenders who are required to register are subjected to stigma in part due to the underlying offense, but also in part due to the dissemination of information. The registry makes significant personal information readily available to the public.17 The impact of this dissemination is heightened by the use of the Internet, thus correlating the dissemination "to the shaming and branding punishments used in colonial times." Doe v. Dist. Attorney, 2007 ME 139, ¶ 55, 932 A.2d 552 (Alexander and Silver, JJ., concurring). As discussed below in relation to the traditional aims of punishment, the stigma associated with Internet publication has the potential to cause "retributive and vigilante violence against registrants." Id. The historic connection to criminal sentencing and shaming, along with the retribution and deterrence discussed below, demonstrate SORNA of 1999's punitive effect.

C. Traditional Aims of Punishment

[¶ 95] SORNA of 1999 promotes retribution and deterrence, especially as it relates to Does III, X, XIX, XXIII, and XLIII. Such characteristics are present regardless of the intent of the Legislature. As the Indiana Supreme Court said in its discussion of that state's sex offender registration act:

It is true that to some extent the deterrent effect of the registration and notification provisions of the Act is merely incidental to its regulatory function. And we have no reason to believe the Legislature passed the Act for purposes of retribution—vengeance for its own sake. Nonetheless it strains credulity to suppose that the Act's deterrent effect is not substantial, or that the Act does not promote community condemnation of the offender, both of which are included in the traditional aims of punishment.

Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009) (quotation marks and citations omitted). Although we accept that SORNA of 1999 is not intended as retribution for sex offenders' crimes, it has that effect, due, in part, to its tendency to stigmatize the registrant. As a result, "[i]t promotes community condemnation in its most extreme form: vigilantism." Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J., concurring).

[¶ 96] As discussed in prior SORNA cases, and cited with concern by the Does in this case, acts of violence against those registered on the Maine Sex Offender Registry are not unknown. In 2006, "a Canadian man targeted and murdered two Maine sex offenders, who[m] he had located on Maine's registry website." Doe, 2007 ME 139, ¶ 56 n.21, 932 A.2d 552 (Alexander and Silver, JJ., concurring); see also Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J., concurring). More recent iterations of SORNA continue to invite the possibility of vigilantism by providing access to the registry via Maine's registry website. The use of the Internet registries allows anyone, anywhere in the world, to have unlimited access to the information.

[¶ 97] In addition to exposing the offenders to acts of vigilantism, there is evidence that registries do not achieve their primary objective of protecting the public. See 34-A M.R.S. § 11201 (2012) ("The purpose of this chapter is to protect the public from potentially dangerous registrants and offenders by enhancing access to information concerning those registrants and offenders."). See also Kristen M. Zgoba & Karen Bachar, National Institute of Justice, Sex Offender Registration and Notification: Limited Effect in New Jersey 2 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/225402.pdf (finding that the sex offender registry did not reduce the number of rearrests for sex offenses or the number of victims of sexual offenses). Instead, the registry may promote criminally deviant behavior by socially isolating offenders. See J.J. Prescott, Do Sex Offender Registries Make us Less Safe?, Regulation, Summer 2012, at 50 (discussing the "negative collateral consequences" for registrants, including loss of social ties, that may cause an increase in criminal behavior). As Justice Brennan noted in Trop v. Dulles, "I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights." 356 U.S. 86, 111 (1958) (Brennan, J., concurring). SORNA of 1999 clearly promotes retribution and deterrence by inadvertently creating an environment where the Does are stigmatized in a way that may invite violent attacks and stall rehabilitation.

Doe v District Attorney

9-25-2007 Maine:

Doe v District Attorney
932 A.2d 552 (2007)

John Doe appeals from a judgment entered in the Superior Court (Kennebec County, Studstrup, J.) granting Evert Fowle, Craig Poulin, and Everett Flannery's motions to dismiss, and dismissing Doe's complaint for failure to state a claim upon which relief can be granted.

Doe argues that the court erred in dismissing his claims that the Sex Offender Registration and Notification Act of 1999 (SORNA), 34-A M.R.S. §§ 11201-11256 (2006), violates his rights to procedural and substantive due process, equal protection, and a civil jury trial pursuant to the United States and Maine Constitutions.

We conclude that further factual development is necessary, and we remand for further proceedings.

... ... ...

F. Conclusion

[¶ 64] The public has a right to protect itself from those individuals whom the State has determined to be lawbreakers in the community. That protection is provided, upon conviction, by criminal sentencing to which constitutional protections apply. One of those constitutional protections is the Ex Post Facto Clause, which prohibits the public from deciding that sentences imposed and served in the past were too light and retroactively imposing more severe punishments on already sentenced offenders.

The recent amendments to SORNA have retroactively enhanced criminal punishments by:

• (1) changing a fifteen-year registration requirement to lifetime State supervision;
• (2) removing the opportunity for waiver of the registration requirement upon a showing of his rehabilitation or for other good cause;
• (3) exposing registrants to punishments similar to the shaming and ridicule penalties of colonial times by identifying and targeting them on the internet, subjecting them to the documented risk of retribution and vigilante violence;
• (4) requiring them to report in person to the police and be fingerprinted once every ninety days for life; and
• (5) restricting their personal liberty by effectively barring them from being in certain public places.

Maine jurisprudence suggests that the State's action enhancing punishments after sentencing is violative of article I, section 11 of the Maine Constitution.

Gautier v Jones

Personally I feel the better way to attack is to show how the state's scheme places the registrant, in a false light before the public eye (certain info -for certain registrants- on registries is protected by federal privacy laws), an actionable tort, and seek millions of dollars damages. Can you imagine if over 700,000 registrants clogged courts with such claims?

2-2-2010 Oklahoma:

Gautier v Jones
No. 09-6123.

Justin Jones, the Director of the Oklahoma Department of Corrections, appeals from the district court's summary-judgment ruling that Oklahoma's Sex Offenders Registration Act (OSORA) violates Leland J. Gautier's procedural-due-process rights and may not be enforced unless there is a hearing regarding his current dangerousness. We have jurisdiction under 28 U.S.C. §1291, and we reverse.

... ... ...

In other words, a convicted sex offender who challenges a registration requirement on the ground that he was not given a hearing to determine whether he is currently dangerous, must at least show that current dangerousness is relevant to the registration requirement. See id. (holding that Connecticut's Megan's Law did not violate procedural due process because "the law's [registration] requirements turn on an offender's conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest").

Here, the OSORA directed the development and use of a three-level screening tool that assigned a "minimum numeric risk level" based on the offense of conviction. 2 Okla. Sess. Laws 2007, ch. 261, § 26 (codified at 57 Okla. Stat. Ann. § 582.5(C) (Supp. 2009)) (emphasis added) (amended 2009).

The tool that was ultimately developed and used in Gautier's case identified his crime as an offense warranting the highest risk level, three. Thus, Gautier's conviction alone was sufficient to place him in the highest level, without regard to any extraneous circumstances bearing on his proclivity to re-offend.

Consequently, even if Gautier could prove he is not currently dangerous, it would not change his risk level, which, at a minimum, is level three. "[D]ue process does not require the opportunity to prove a fact that is not material to the State's statutory scheme." Conn. Dep't of Public Safety, 538 U.S. at 4.3

Note: Here I feel the court has erred, "dangerousness" is material to the state's scheme, as that is exactly what the state wants the public to know, how dangerous is this registrant. But as folks can see the court dances around that issue.

CONCLUSION
The judgment of the district court, to the extent of its procedural-due-process ruling, is REVERSED.4

Doe v DPSCS

Maryland's Ct of Appeals is it's highest ct. and equates to blog's State Sup ct. Hence above labeling.

6-30-2014
Doe II v DPSCS

In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) ("Doe I"), we addressed the Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2013 Cum.Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as "Crim. Proc. §") and held that the retroactive application of the provisions we deemed punitive violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. This Court's plurality opinion in Doe I specifically excluded any analysis of the federal Sex Offender Registration and Notification Act ("SORNA"), Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250). We stated, "[a]s [Doe's] federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register." Doe I, 430 Md. at 544, 62 A.3d at 128.

In the instant appeal,1 however, the State2 asks us to consider sex offenders' "federal obligations" and whether a circuit court has the authority to direct the State to remove sex offender registration information in light of the provisions of SORNA specifically directing sex offenders to register in the state in which they reside, work, or attend school. We shall hold that, notwithstanding the registration obligations placed directly on individuals by SORNA, circuit courts have the authority to direct the State to remove sex offender registration information from Maryland's sex offender registry when the inclusion of such information is unconstitutional as articulated in Doe I.

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3-4-2013 Maryland:
Doe I v DPSCS
No. 125, September Term, 2011.

The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2012 Cum. Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter a ll section references to the Criminal Proced ure Article of the Maryland Code are identified as “C.P. §”), requires persons convicted of certain sex offenses to register1 with “the person’s supervising authority.”2

We are asked to determine whether, under this statute, the State can legally require Petitioner to register.

Petitioner argues that requiring him to register as a sex offender:

• (1) violates Petitioner’s right to be free from ex post facto laws purs uant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to theMaryland Declaration of Rights;
• (2) violates Petitioner’s due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and
• (3) violates the plea agreement entered into when he pled gu ilty to the underlying crime.

... ... ...

When Petitioner committed his sex crime during the 1983-84 school year he did not face registration under the statute as a consequence for his crime. Registration was imposed, over twenty years later in 2009, under the sex offender registration statute as a direct consequence of Petitioner’s commission and conviction for his sex crime.

The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime.

Therefore, we conclude that the imposition of the registration requirement up on Petitioner, as the result of amendments passed 25 years a fter Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.

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Doe v DPSCS copy from state.

Lower court case being appealed: MD Special Court of Appeals

Russell v Texas

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