Doe v. District Attorney

ALEXANDER, and SILVER, JJ.,

concurring.

[¶ 38] Today we join a unanimous Court in holding that review of the 1999 and subsequent amendments to the Sex Offender Registration and Notification Act (SORNA), 34-A M.R.S. §§ 11201-11256 (2006); P.L.2007, ch. 393, § 1 (codified at 17-A M.R.S. § 261), needs further development of the facts.

[¶ 39] We write separately to emphasize that Maine’s SORNA must be reviewed according to its unique history; our precedent; the requirements of the Maine Constitution, which distinguish the analysis here from the analysis of the application of sex offender notification laws in other states, see, e.g., Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); and the analysis we applied in State v. Haskell, 2001 ME 154, 784 A.2d 4. The key distinguishing features are:

[¶40] First, for nearly a decade, until 2004, the registration and notification requirements were explicitly criminal punishments, defined by statute as “part of a sentence” and a condition of probation im*564posed pursuant to the criminal sentencing provisions of the Criminal Code.

[¶41] Second, amendments to SORNA have made the registration and notification requirements and restrictions progressively more punitive and intrusive, thereby retroactively enhancing the sentences of all those individuals obligated to register under the law. These amendments changed the characterization of the sanction from a criminal to a civil penalty in an attempt to avoid the constitutional protections prerequisite to the imposition of criminal sanctions. However, Maine jurisprudence prohibits such “re-labeling” of criminal penalty statutes as a device to avoid the constitutional protections prerequisite to enforcement of the criminal laws.12

[¶ 42] Third, article I, section 1, of the Maine Constitution recognizes the “inherent and unalienable rights” of all people, including the rights of “enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.” Article I, section 1 has no counterpart in the United States Constitution.

A. SORNA as Part of a Criminal Sentence

[¶ 43] The SORNA effective in the late 1990s, when Haskell’s crime was committed, required an offender to list his intended address and notify the Department of Public Safety of any subsequent changes or moves. 34-A M.R.S.A. § 11121(2), (3) (Supp.1998). The notification provisions required the Department or the local law enforcement agency to distribute the offender’s information only to those members of the public deemed appropriate “to ensure public safety.” 34-A M.R.S.A. § 11143(1) (Supp.1998). The registration law governing sentencing also authorized waiver of the registration requirements in certain situations, including waiver by the Superior Court upon a petition by an offender who had been registered for at least five years, and waiver by the sentencing court “for good cause shown.” 34-A M.R.S.A. § 11121(6)(C), (D) (Supp.1998). These registration requirements were imposed and enforced pursuant to the Criminal Code “[a]s part of a sentence,” 17-A M.R.S.A. § 1152(2-0 (Supp.1998).13

B. The 1999 and Subsequent Changes in the SORNA

[¶ 44] Significant changes occurred when the Legislature enacted the Sex Offender Registration and Notification Act of 1999. P.L.1999, ch. 437, § 2 (effective Sept. 18, 1999). Among the many changes from the 1996 Act, the SORNA of 1999:(1) expanded the class of crimes requiring registration upon conviction, 34-A M.R.S.A. § 11203(6), (7) (Supp.1999);14 (2) created two classes *565of offenders, “sex offenders” and “sexually violent predators,” requiring the former to register for ten years, and the latter to register for life, 34-A M.R.S.A. §§ 11203, 11225 (Supp.1999); and (3) required the offender to disclose more personal information than previously required, 34-A M.R.S.A. § 11221 (Supp.1999);15 see also L.D. 1721, Summary (119th Legis.1999). Most notably, the SORNA of 1999 removed the possibility of the trial court waiving the registration and notification requirements on a petition by the offender after five years of registration or “for good cause shown.” Respecting the Constitutional prohibition on ex post facto legislation, the Legislature did not apply the 1999 amendments retroactively. 34-A M.R.S.A. § 11202 (Supp.1999).16

[¶45] Since 1999, SORNA has been amended several times. The law first became retroactive in 2001, applying to offenders sentenced on or after June 30, 1992. See P.L.2001, ch. 439, § 000-7 (effective Sept. 21, 2001) (codified at 34-A M.R.S.A. § 11202 (2001)). It now applies to offenders sentenced on or after January 1, 1982. See P.L.2005, ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202 (2006)). This latter amendment extended the law’s retroactive sentence enhancements to Doe. The statute now categorizes offenders as ten-year registrants and lifetime registrants. 34-A M.R.S. § 11203(4-0), (5). Furthermore, since 2004, registration requirements are no longer imposed as a criminal penalty “as part of a sentence.” See P.L.2003, ch. 711, § B-13 (effective July 30, 2004) (codified at 17-A M.R.S. § 1152(2-0) (2006)).

[¶ 46] Another significant change has been the enhancement of the State action required to increase access to and availability of information about registrants. Amendments enacted in 2003, two years after our opinion in Haskell, require the State to

post on the Internet for public inspection the following information concerning a sex offender or sexually violent predator:
(1) The sex offender’s or sexually violent predator’s name, date of birth and photograph;
(2) The sex offender’s or sexually violent predator’s city or town of domicile;
(3) The sex offender’s or sexually violent predator’s place of employment and college or school being attended, if applicable, and the corresponding address and location; and
(4) The statutory citation and name of the offense for which the sex offender or sexually violent predator was convicted.

*566P.L.2003, ch. 371, § 7 (effective Sept. 13, 2003) (codified as subsequently amended at 34-A M.R.S. § 11221(9)(A)). The 2003 amendment required the State to provide even more information about a registered sex offender upon receiving a written request from any member of the public, including:

(1) The sex offender’s or sexually violent predator’s name, aliases, date of birth, sex, race, height, weight, eye color, mailing address and home address or domicile;
(2) The sex offender’s or sexually violent predator’s place of employment and college or school being attended, if applicable, and the corresponding address and location;
(3) A description of the offense for which the sex offender or sexually violent predator was convicted, the date of conviction and the sentence imposed; and
(4) The sex offender’s or sexually violent predator’s photograph.

P.L.2003, ch. 371, § 7 (effective Sept. 13, 2003) (codified as subsequently amended at 34-A M.R.S. § 11221(9)(B)).

[¶ 47] Registrants are also subject to amendments to the Criminal Code, enacted in 2007, which significantly restrict a SORNA registrant’s freedom of movement and personal liberty. This new act effectively prohibits a lifetime registrant from entering certain “sex offender restricted zones” in the community, such as state and local parks, schools, athletic facilities, and recreational facilities primarily used by children. See P.L.2007, ch. 393, § 1 (effective Sept. 20, 2007) (codified at 17-A M.R.S. § 261). Although a SORNA registrant may enter such facilities, he assumes grave risk by doing so, as even an indirect, nonphysical contact with a child under the age of fourteen can cause' arrest and prosecution. See ¶ 19, supra.

[¶ 48] The SORNA registration and supervision restraints have also been dramatically enhanced. A verification process is mandated every ninety days for lifetime registrants. 34-A M.R.S. § 11222(4). The process requires the registrant to complete a verification form and to “take the completed verification form and a photograph of the registrant to the law enforcement agency having jurisdiction within 5 days of receipt of the form.” 34-A M.R.S. § 11222(4)(C). Thus, once every ninety days, a personal appearance at a police station is required. At that time, the police agency, in addition to verifying the registrant’s identity, takes the registrant’s fingerprints. 34-A M.R.S. § 11222(4)(D). Whenever a registrant changes “residence, domicile, place of employment or college or school,” the registrant must notify the law enforcement agency in the new location. 34-A M.R.S. § 11222(5).

C. The SORNA Requirements as a Criminal Penalty

[¶ 49] The Ex Post Facto Clause “protects liberty by preventing governments from enacting statutes with ‘manifestly unjust and oppressive ’ retroactive effects.” Stogner v. California, 539 U.S. 607, 611, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (emphasis in the original) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648 (1798)); see also Me. Const. art. 1, § 11. Among these protections, the Clause prohibits the application of a criminal statute to a defendant that “ ‘makes more burdensome the punishment for a crime after its commission.’” State v. Chapman, 685 A.2d 423, 424 (Me.1996) (quoting State v. Joubert, 603 A.2d 861, 869 (Me.1992)). Much of the articulated purpose for the retroactive application of SORNA, discussed in the Court’s opinion, *567is to make more burdensome the punishment for earlier crimes.

[IT 50] We addressed whether SORNA violated the Ex Post Facto Clause in Haskell, 2001 ME 154, 784 A.2d 4. In Haskell, the defendant argued that the application of the SORNA of 1999 to him was unconstitutional because, although he was sentenced after its enactment, he committed the crimes when the earlier version of the law was in effect. Id. ¶ 6, 784 A.2d at 8. In our analysis, we applied an “intent-effects” test for distinguishing between civil and criminal penalties and determined that the Legislature intended the SORNA of 1999 to be a civil remedy and the effects of the statute were non-penal. Id. ¶¶ 8-22, 784 A.2d at 8-16. Thus, we held that the statute did not constitute ex post facto legislation as applied to the defendant. See id. ¶ 22, 784 A.2d at 16.17

[¶ 51] Haskell must be distinguished from the case before us because the recent enhancements of the SORNA mandates were not in effect when Haskell was charged and convicted. In fact, the law making the 1999 and subsequent amendments retroactive to sentencing that occurred prior to the effective date of the 1999 amendments, did not take effect until September 21, 2001, after Haskell had been argued and submitted to us for decision. P.L.2001, ch. 439, § 000-7.

[¶ 52] Because Haskell addressed a different issue than is presented to us today, Haskell did not fully consider our prior jurisprudence addressing the validity of re-labeling as “civil,” certain proceedings that retain criminal characteristics and penalties.

[¶ 53] We addressed this issue in State v. Freeman, 487 A.2d 1175 (Me.1985), in the context of the former civil operating under the influence (OUI) statute, which allowed the State to charge an OUI as a civil offense. Id. at 1177. Freeman appealed her conviction asserting that a civil OUI charge deprived her of her right to a jury trial. Id. at 1176. In analyzing the effects of the civil OUI statute, we noted: (1) the defendant was still subject to arrest and detention prior to the State’s decision to charge her civilly; (2) the stigma associated with an OUI charge, whether criminal or civil, was “suggestive of the true criminal nature of the procedure”; and (3) a prior civil conviction would enhance a subsequent offense and count towards habitual offender status. Id. at 1177-79. In voiding the statute, we held that the civil OUI process was, in reality, a criminal proceeding, requiring constitutional protections, which could not be denied “for the sake of legislative or judicial efficiency.” Mat 1179-80.

[¶ 54] Thus, pursuant to Freeman, a law enhancing a criminal penalty, based on a criminal conviction, cannot avoid the protections of Maine’s Declaration of Rights by legislative re-labeling as a civil rather than a criminal proceeding.

[¶ 55] In the six years since Haskell and the subsequent retroactive application of SORNA and imposition of internet registries, we have learned much about the *568stigmatizing effect of registration and notification.18 We now recognize the extent to which the State’s use of the internet to display registration information correlates to the shaming and branding punishments used in colonial times, and we have seen the registries’ potential for causing retributive and vigilante violence against registrants. Instead of locking the-criminal in stocks in the town square or branding the offender with a letter to make the community aware of his crime, SORNA directs the State to place the registrant’s personal information on the World Wide Web, labeled as an offender convicted of a heinous crime.19 Although calling the internet a “modern day town square” may sound simplistic, much of our society’s day-to-day communication occurs via the web, instead of in the markets and on the street corners. The ease with which any individual in the world can access a registry website and the accumulated personal data on offenders makes the geographic reach of this information boundless.

[¶ 56] In our internet age, the “shaming and branding” of sex offenders inevitably leads to community stigmatization and ostracism.20 Being branded a sex offender in a community indisputably has ostracizing effects, including social isolation, difficulty finding employment, and being targeted for harassment, violence, and even murder.21 The drafters of the United States *569and Maine Constitutions deemed such actions criminal penalties and proscribed them, directly addressing such punishments in the Constitutions. See U.S. Const, amend. VIII; Mb. Const, art. I, § 9.

[¶ 57] As we held in Freeman, such punishments do not lose their constitutional protections by legislative re-labeling as civil obligations rather than criminal punishments. For most of the time SORNA has been in effect, the SORNA sanctions were imposed as part of the criminal sentence. “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment....” United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).22 It is the punishment enhancement, not the label, that the Constitution prohibits.

D. Retribution and Deterrence

[¶ 58] In Haskell, we noted “ ‘[t]he limited release of information to those likely to encounter sex offenders could hardly be characterized as “retribution.” ’ ” Haskell, 2001 ME 154, ¶ 18, 784 A.2d at 12 (quoting People v. Malchow, 193 Ill.2d 413, 250 Ill.Dec. 670, 739 N.E.2d 433, 440 (2000)). Although we recognized the “possibility of the SORNA having a deterrent effect, we stated that its purpose was to protect the public and it did not “significantly promote either retribution or deterrence.” Id. ¶ 19, 784 A.2d at 12.

[¶ 59] As discussed above, time and our state of knowledge of the effects of SOR-NA have changed. With the use of internet registries, there is an unlimited release of information, allowing a person in a different country to access the identity and whereabouts of an offender.

[¶ 60] Finally, there is evidence that registries do not protect the public, but have the opposite effect by isolating the offender from society in a way that may promote a return to criminally deviant behavior.23 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, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (Brennan, J., concurring).

[¶ 61] In light of this knowledge, despite its alleged remedial goal, the SORNA can only be described as serving retributive and deterrent purposes, and therefore, is punishment. See Halper, 490 U.S. at 448, 109 S.Ct. 1892; Haskell, 2001 ME 154, ¶¶ 18-19, 784 A.2d at 12.

*570E. Liberty Interests Protected by the Maine Constitution

[¶ 62] Another indicium of the SORNA’s penal character is its effect on the liberty interests of the offender. Pursuant to the Davis “stigma-plus” test, an individual hás a liberty interest in protecting his or her reputation when the injury to the reputation is accompanied by some other harm. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1165, 47 L.Ed.2d 405 (1976). Courts that have applied this test tend to find that the damage to the sex offender’s reputation, plus any one of the collateral consequences that follow community notification, such as difficulty finding employment or housing, implicates a liberty interest of the offender. See Wayne A. Logan, Criminal Law: Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. Grim. L. & Criminology 1167, 1192-97 (1999). Barring a person from being in a particular place or places, or requiring a person to regularly report to the police and be fingerprinted is a restriction on personal liberty and freedom of movement that may be imposed through probation conditions as part of a criminal sentence. See State v. Nolan, 2000 ME 165, ¶ 9, 759 A.2d 721, 723-24. Such restrictions, imposed as a result of a criminal conviction, must be imposed subject to the constitutional protections of the criminal process.

[¶ 63] More importantly, the Maine Constitution’s Declaration of Rights not only ensures the right of “enjoying and defending life and liberty, acquiring, possessing and protecting property,” it also protects the right of “pursuing and obtaining safety and happiness.” Me. Const., art. I, § 1. This clause, which does not appear in the Federal Constitution, demonstrates our State’s commitment to providing citizens, even those who have committed heinous acts, the possibility of a secure and content existence. For lifetime registrants, the SORNA takes away that possibility and the prospect of redemption.

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 fight 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 fife; 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.

.All of the analysis in this opinion assumes that, subject to the proportionality requirement and the prohibition of cruel and unusual punishments found in Me. Const, art. 1, § 9, the Legislature could, as it formerly did, authorize courts to impose sex offender notification and registration requirements as part of a criminal sentence. The only issue here is whether, by re-labeling those penalties "civil” rather than "criminal,” the provisions of the Ex Post Facto Clause governing imposition of criminal penalties may be avoided.

. In the late 1990s, sex offender registration requirements were imposed as part of the sentence pursuant to 17-A M.R.S.A. § 1152(2-C) (Supp.1998), which specified that: "As part of a sentence, the court shall order every natural person who is a convicted sex offender ... to satisfy all requirements set forth in the Sex Offender Registration and Notification Act.”

. Although the previous act required only those convicted or found not criminally responsible for gross sexual assault on victims under the age of sixteen to register, the Sex *565Offender Registration and Notification Act of 1999 greatly expanded the types of convictions that required registration. Compare 34-A M.R.S.A. § 11103(5) (Supp.1998), with 34-A M.R.S.A. § 11203(6), (7) (Supp.1999). The current SORNA of 1999 requires offender registration for crimes such as statutory rape, possession of child pornography, and nonpa-rental kidnapping or criminal restraint, regardless of whether a sexual assault was involved. 34-A M.R.S. § 11203(6)(B) (2006).

. The SORNA of 1999 required the registries to contain not only the offender’s name and address, but also his or her date of birth, physical description, place of employment or school, offense history, whether he or she was receiving any treatment for a mental disorder, a photograph and a set of fingerprints, a description of the offense, and “[a]ny other information the bureau determinefd] important.” 34-A M.R.S.A. § 11221(1) (Supp. 1999).

. The SORNA of 1999 only applied "to a person sentenced as a sex offender or a sexually violent predator on or after the effective date,” and did not apply retroactively. 34-A M.R.S.A. § 11202 (Supp.1999).

. The "intent-effects” test requires us to look at " ‘whether the [L]egislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ " State v. Haskell, 2001 ME 154, ¶ 8, 784 A.2d 4, 8 (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). If it looks like the Legislature intended the statute to be remedial, the second step of the "intent-effects” test requires the party challenging the statute to demonstrate, by the “ 'clearest proof,' ” that “ ‘the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.’ ” Id. ¶ 8, 784 A.2d at 8 (quoting Hudson, 522 U.S. at 99-100, 118 S.Ct. 488).

. Although we now have a fuller picture of the problems caused by registries, especially since the growth of internet registries, the problems and concerns raised by the notification provisions have existed since the creation of the first Act in 1992. See, e.g., L.D. 2315, Maine Civil Liberties Union Testimony before the Committee on Judiciary (115th Leg-is.1992) (urging treatment of sex offenders over registration requirements); L.D. 1510, Maine Pretrial Service, Inc. Testimony before the Committee on Criminal Justice (117th Legis.1995) (stating community fear of sex offenders “tends to drive our sense of outrage and loss of control, and legislation growing from such a public place needs most careful scrutiny lest it become mere reaction, not good law”); L.D. 1721, Bill Analysis from Marion Hylan Barr, Legislative Analyst to Joint Standing Committee on Criminal Justice (119th Legis.1999) (noting opponents’ testimony that "[n]otification and registration make reintegration into society impossible”).

. See Alex B. Eyssen, Comment, Does Community Notification for Sex Offenders Violate the Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment? A Focus on Vigilantism Resulting from "Megan’s Law,” 33 St. Mary’s L.J. 101, 124-26 (2001) (noting analogy between shaming punishments and sex offender registry and notification provisions). The author uses the comparison of God placing a mark upon Cain as punishment for killing his brother to the modern-day tactic of requiring convicted drunk drivers to place bumper stickers on their cars notifying others of their convictions. Id. at 124-25; see also Smith v. Doe, 538 U.S., 84, 115-16, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Ginsburg, J., dissenting); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 441 (1995) (Stein, J., dissenting).

. See Leading Cases, 117 Harv. L. Rev. 226, 335 (2003); see also Peter Finn, U.S. Dep't of Justice Office of. Justice Programs, Nat’l Inst, of Justice, Sex Offender Community Notification 13-14 (1997) (noting harms caused by notification, including incitement of excessive community fear or anger, creating a false sense of security, harassment and abuse of those on registries, and difficulty for the offenders to find employment and reintegrate into society).

. The truth of vigilantism towards sex offenders, whose identities and whereabouts are etched in cyberspace, cannot be ignored, and certainly cannot be a disputed fact. It has been nationally documented that last year in Maine, a Canadian man targeted and murdered two Maine sex offenders, who he had located on Maine's registry website. See Associated Press, 2 Sex Offenders Shot to Death in Their Homes, N.Y. Times, April 17, 2006, at A14; Raja Mishra, Suspect May Have Wanted to Kill Others, Boston Globe, April 25, 2006, at B2; David Hench, Killer Drove to Maine with a Long List of Sex Offenders, Portland Press Herald, April 26, 2006, at Al. Reports of other murders, assaults, and harassment *569abound. See Brief of the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae Supporting Respondents at 6-18, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (No. 01-729). Yet, some courts ignore and downplay this evidence, and claim that States absolve themselves of responsibility for vigilantism by warning the public that it will not be tolerated. See, e.g., E.B. v. Verniero, 119 F.3d 1077, 1104 (3d Cir.1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998).

. Retribution is defined as “[p]unishment imposed as repayment or revenge for the offense committed.” Black's Law Dictionary 1318 (7th ed.1999). Deterrence means "[t]he act or process of discouraging certain behavior, particularly by fear.” Id. at 460.

. See Leading Cases, 117 Harv. L. Rev. at 336 & nn. 87-89 (‘‘[T]here is a growing consensus in the psychotherapy community that community notification measures exacerbate the feelings of isolation and depression which may have led sex offenders to offend initially[.]” (quotation marks omitted)); Brief of the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae Supporting Respondents at 21-26, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).