House Bill 69 seeks to modify the statute of limitations for civil actions related to sexual abuse. We remain concerned about this legislation. If passed, it would amend Section 37-1-30 NMSA to allow alleged victims until they have reached 58 years of age to resuscitate an already expired statute of limitations for civil actions due to childhood sex abuse. We do not expect this bill to advance since no hearing has been scheduled.

House Bill 74 would eliminate the 10-year statute of limitations on prior felonies. This bill was heard by the House Consumer and Public Affairs Committee on February 3rd, 2026. It did not receive the necessary votes to advance; it’s likely dead for this session.

House Bill 79 seeks to make it easier for the state to revoke a person’s probation. The language proposed in HB 79 would reduce the burden of proof to a preponderance of the evidence. This legal standard is inadequate and not appropriate in a criminal proceeding. The bill has been assigned to the House Consumer and Public Affairs Committee. No hearing has been scheduled. This legislation is likely dead for this session.

House Bill 199 seeks to bring New Mexico into substantial compliance with the federal Adam Walsh Act. In our previous updates, we deliberately omitted this proposal because it did not have an executive message from the governor. The governor provided a message last week, and the bill is now germane for this session. The proposal is not perfect, and we are working hard to improve the language of the legislation. The bill is scheduled to be heard today (Tuesday) in the House Consumer and Public Affairs Committee. We will keep you informed.

Senate Bill 32 proposes to:

• revise the time limitation for commencing prosecution of human trafficking;
• increase the age applicable to victims of sexual exploitation of children by prostitution to eighteen;
• amend the elements of human trafficking;
• provide a definition of harm;
• prohibit certain defenses in a prosecution for certain crimes;
• add victims of human trafficking and sexual exploitation of children to the victims of the crime act;
• prohibit earned meritorious deductions for a human trafficking sentence.

The bill was heard by the Senate Health and Public Affairs Committee. It received a unanimous “do pass” recommendation. The legislation is now in the Senate Judiciary Committee awaiting a hearing. We will keep you informed.

Senate Bill 41 proposes to eliminate the statute of limitations for certain sexual crimes. The bill has been assigned to the Senate Health and Public Affairs Committee. It was heard on a rare Sunday afternoon meeting on February 1st and received a unanimous “do pass.” Next, the legislation will be heard by the Senate Judiciary Committee. No hearing has been scheduled as of this writing. We will continue our strong opposition to this legislation.

Senate Bill 51 proposes to:

• enact the wrongful conviction compensation act;
• provide for a person who claims to have been wrongfully convicted of a misdemeanor or felony offense in state court to petition the court for exoneration;
• provide compensation, damages, and other relief for a person who is exonerated.

The bill has not advanced because it has been determined that it is not germane to this year’s session agenda. We intend to support this legislation in the future.

House Bill 69 seeks to modify the statute of limitations for civil actions related to sexual abuse. We remain concerned about this legislation. If passed, it would amend Section 37-1-30 NMSA to allow alleged victims to resuscitate the already expired statute of limitations for civil actions due to childhood sex abuse until they have reached 58 years of age. If a hearing is scheduled, we will provide reasons to vote no.

House Bill 74 would eliminate the 10-year statute of limitations on prior felonies. This bill is scheduled for House Consumer & Public Affairs Committee today, February 3, 2026, in the afternoon.

House Bill 79 seeks to make it easier for the state to revoke a person’s probation. The language proposed in HB 79 would reduce the burden of proof to a preponderance of the evidence. This legal standard is inadequate and not appropriate in a criminal proceeding. The bill has been assigned to the House Consumer & Public Affairs Committee. No hearing has been scheduled.

Senate Bill 32 proposes to:

• Revise the time limitation for commencing prosecution of human trafficking.
• Increase the age applicable to victims of sexual exploitation of children by prostitution to eighteen.
• Amend the elements of human trafficking.
• Provide a definition of harm.
• Prohibit certain defenses in a prosecution for certain crimes.
• Add victims of human trafficking and sexual exploitation of children to the victims of the crime act; prohibit earned meritorious deductions for a human trafficking sentence.

The bill has been assigned to the Senate Health and Public Affairs Committee. No hearing has been scheduled. We intend to oppose this legislation unless significant amendments are made.

Senate Bill 41 proposes to eliminate the statute of limitations for certain sexual crimes. The bill has been assigned to the Senate Health and Public Affairs Committee. It was heard on a rare Sunday afternoon meetng on February 1st and receved a unanimous “do pass.” Next, the legislation will be heard by the Senate Judiciary Committee. We will continue our strong opposition to this legislation.

Senate Bill 51 proposes to:

• Enact the wrongful conviction compensation act.
• Provide for a person who claims to have been wrongfully convicted of a misdemeanor or felony offense in state court to petition the court for an exoneration.
• Provide for compensation, damages, and other relief for a person who is exonerated.

The bill has not moved because it has been determined that it is not germame to this year’s session agenda. We intend to support this legislation in the future.

  ]]> https://libjusco.net/2026/02/03/legislative-update-3-2026/feed/ 0 2345 https://libjusco.net/2026/01/27/legislative-update-2-2026/ https://libjusco.net/2026/01/27/legislative-update-2-2026/#respond Tue, 27 Jan 2026 09:18:47 +0000 https://libjusco.net/?p=2347 The 2026 legislative session has now entered the second week of the session. This is a short session scheduled to last only 30 days. There are currently 147 bills pending in the House of Representatives and 131 bills pending in the Senate. The information we have is somewhat limited since none of the bills we are tracking have been heard in their respective committees as of this writing.

House Bill 69 (HB 69) seeks to modify the statute of limitations for civil actions related to sexual abuse. This proposed legislation would amend Section 37-1-30 NMSA to allow alleged victims to resuscitate the already expired statute of limitations for civil actions due to childhood sex abuse until they have reached 58 years of age. If a hearing is scheduled, we will be provide reasons to vote no.

House Bill 74 (HB 74) would eliminate the 10-year statute of limitations on prior felonies. No hearing has been schedule. We will keep you informed.

House Bill 79 (HB 79) seeks to make it easier for the state to revoke a person’s probation. The language proposed in HB 79 would reduce the burden of proof to a preponderance of the evidence. This legal standard is inadequate and not appropriate in a criminal proceeding. No hearing has been scheduled.

Senate Bill 32 (SB 32) proposes to:

• Revise the time limitation for commencing prosecution of human trafficking.
• Increase the age applicable to victims of sexual exploitation of children by prostitution to eighteen.
• Amend the elements of human trafficking.
• Provide a definition of harm.
• Prohibit certain defenses in a prosecution for certain crimes.
• Add victims of human trafficking and sexual exploitation of children to the victims of the crime act; prohibit earned meritorious deductions for a human trafficking sentence.

No hearing has been scheduled. We intend to oppose this legislation unless significant amendments are made.

Senate Bill 41 (SB 41) proposes to eliminate the statute of limitations for certain sexual crimes. No hearing has been scheduled. We will oppose this legislation.

Senate Bill 51 (SB 51) proposes to:

• Enact the wrongful conviction compensation act.
• Provide for a person who claims to have been wrongfully convicted of a misdemeanor or felony offense in state court to petition the court for an exoneration.
• Provide for compensation, damages, and other relief for a person who is exonerated.

No hearing has been schedule. We intend to support this legislation.

We have information from reliable sources that there will be a constitutional amendment introduced to make it easier for a district judge to deny bail (conditions of release) for more defendants. Since the proposal has not been introduced yet, we do not know what our position will ultimately be. We can say that we are deeply concerned about holding those accused of committing crimes in detention without bail. The right to bail is enshrined in the United States Constitution as well as the New Mexico Constitution. We will keep you informed.

House Bill 69 (HB 69) seeks to modify the statute of limitations for civil actions related to sexual abuse. This proposed legislation would amend Section 37-1-30 NMSA to allow alleged victims to recestitate the already expired statute of limitations for civil actions due to childhood sex abuse until they have reached 58 years of age. We will oppose.

House Bill 74 (HB 74) would eliminate the 10-year statute of limitations on prior felonies. We have not fully analyzed the proposal as of this writing. We will keep you informed.

House Bill 79 (HB 79) seeks to make it easier for the state to revoke a person’s probation. The language proposed in HB 79 would reduce the burden of proof to a preponderance of the evidence. This legal standard is inadequate and is not appropriate in a criminal proceeding.

These are previous bills that we oppose and that continue to cause us concern. We will work to derail any of these bills again in 2026 if they should resurface.

• Human Trafficking Changes: This proposal died. The bill would have amended a number of statutes regarding human trafficking.
• Non-Consensual Touching Clarification: This proposal died.
• Increase Penalties For Certain Crimes: This proposal died. The bill sought to revise the criminal code to allow the death penalty for certain offenses regarding criminal sexual penetration and human trafficking.
• Chemical Castration Of Some Sex Offenders: We are elated that this legislation died. This legislation has been rejected more than once.
• Time Limit For Prosecuting Certain Crimes.

Those priorities include:

• Imposing a “rebuttable presumption,” which shifts the burden to the those accused of murder, gun crimes, rape or other sex crimes to prove that they do not pose a danger to the community before being released pending trial.
• Increasing penalties for second degree murder from 15 years to 18 years as well as removing the statute of limitations for that offense.
• Increasing penalties for gun crimes, including increasing the penalty for unlawful possession of a handgun from misdemeanor to fourth degree felony; creating a new crime of “criminal threat” as a fourth-degree felony; adding penalty of third-degree felony for fleeing law enforcement that results in injury and second-degree felony for fleeing that results in great bodily harm; enhancing penalties for brandishing a firearm in the commission of a drug transaction.

The governor stated, “Living in a safe and healthy community is the right of every New Mexican, and these are smart proposals that get and keep the worst of the worst off of New Mexico streets.” Liberty and Justice Coalition will be carefully analyzing the governor’s proposals as well as those put forward by other legislators, regardless of their political party. In addition to what we know, we anticipate a proposal pertaining to the Sex Offender Registration and Notification Act (SORNA). We will work to alter or defeat proposals that we believe are not in the long-term interest of our state.

At the end of the first week there are already 159 bills pending in the Senate and 135 in the House of Representatives. The period for introduction of legislation closes at the mid-point of the session which is February 2nd. One of the larger issues looming is reform of New Mexico’s pre-trial release system. The public is being led to believe that the police are doing their job apprehending the criminals only to have them released on the own recognizance by irresponsible judges. The solution being proposed is to make it harder for defendants to be released pending trial. Another issue that has surfaced again is the statute of limitations for civil actions pertaining to allegations of sex crimes. The victims’ advocates have been relentless in their pursuit of abolition of the statute of limitations. SB 117 has been filed already which would essentially accomplish that objective if passed.

At this point, there hasn’t been enough analysis of the proposals currently pending for us to provide more details. In addition, we anticipate there will be a significant number of bills coming days as the deadline for introduction closes.

There are likely some horrible provisions tucked into many of these proposals that need to be identified. For example, look at HB 27 which would reform the pre-trial detention to include a “presumption of dangerousness.” This is problematic because the defendant has the burden of rebutting a presumption that he/she is dangerous based merely on the charge(s). Take a look at the

offenses on the list of presumptive dangerous offenses. You will note that there are some sexual offenses on the list.

LJC’s Watch List

SB 117 – Eliminating the Civil Statute of Limitations for All Childhood Sexual Abuse Crimes

HB 5 & HB 27 – Pre-trial Detention Reform

Much has been made about how pre-trial release has been granted since the reform of bail in New Mexico, and both of these bills aim to introduce a “rebuttable presumption” to make it more difficult for certain defendants awaiting trial to be released into the community. A “rebuttable presumption” means that the defendant will have the burden of proof to argue that they should be granted conditions of release awaiting trial, rather than the state having the burden of proof to argue the defendant should be detained awaiting trial. LJC has serious concerns and we will be working to improve these proposals.

HB 25 – 2nd Degree Murder Limitations

The annual bill to lift the statute of limitations on 2nd degree murder has appeared again, but also includes a provision calling for an expansion of 1st degree drug trafficking’s statute of limitations to 6 years. As we have in years past, we will oppose this bill.

HB 26 – Drug Trafficking with a Firearm

This bill aims to create a new crime of “unlawful carrying of a firearm while drug trafficking”. Rather than an enhancement to the criminal code in place, this creates a separate crime with the goal of stiffening the current misdemeanor of “unlawful carrying of a firearm” that would have otherwise been charged.

HB 28 – Felon in Possession of a Firearm

Similar to HB 26, this bill aims to further stiffen criminal penalties surrounding illegal firearm usage. Our current law on the books calls for an 18-month prison sentence for a felon in possession of a firearm while this bill aims to make it a 5-year prison sentence.

HB 31 – Three Strikes Law Expansion

With all of the concern surrounding rising crime rates in the state, this bill aims to address it by adding more crimes to New Mexico’s targeted “Three Strikes” law and removing the ability for a person sentenced to life under this statute to receive parole. It also adds more crimes to its qualifying violent felonies.

There will certainly be more legislation to be introduced as the session continues, and we will diligently continue to identify impact legislation as it is introduced to the roundhouse. Your financial support makes our mission possible and gives us the means to represent your interests to our lawmakers

Trial Court History

United States District Court Richard Young, who serves in the Southern District of Indiana, handed down a fantastic decision back in 2019. We said at the time that the decision had the potential to help many similarly situated offenders who were: (1) convicted in other states and moved to Indiana; or (2) convicted in Indiana, moved away and returned again.

The case was brought on behalf of six named plaintiffs who asserted that the imposition of Indiana’s SORA is unconstitutional as applied to them. Plaintiffs Hope and Snider filed their joint complaint on October 21; Standish joined the case later in 2016. Plaintiffs Rice, Bash, and Rush filed a complaint on December 6, 2017. The court ultimately consolidated the cases. Plaintiffs sought a preliminary injunction which was granted. All but one of the six committed their offense prior to the enactment of Indiana’s registration, and five of the six committed their offense in other states and subsequently moved to Indiana.

Plaintiffs argued that Indiana’s SORA violates their fundamental right to travel, their right to equal protection of the laws, and their right to be free from retroactive punishment. The court examined two important cases. First, the court looked at Smith v. Doe, 538 U.S. 84 (2003) which is the landmark case from the U.S. Supreme Court. The court found the case distinguishable because none of the disabilities imposed by Indiana’s scheme were required by Alaska. Second and more relevant was the case of Wallace v. State, 905 N.E.2d 371 (2009). In Wallace, the offense was committed in1988; he pled guilty in 1989 and completed probation in 1992. After he failed to register in 2003, a jury found him guilty. He appealed and prevailed.

The court rejected all of Indiana’s arguments, and they did put forth some interesting theories. NARSOL said at the time, “The judge’s legal analysis is one of the best I’ve ever seen written, which will make it extremely difficult for the Seventh Circuit to reverse.”

Initial Seventh Circuit Decision

Appellate courts typically decide appeals by having the case reviewed by a three-judge panel. The three-judge panel did affirm Judge Young.

None of the challengers would have been required to register if they: (1) had not moved out of Indiana and returned after 2006; or (2) had not moved into Indiana after 2006. It was in 2006 that the Indiana law was amended to include the requirement that forced a person to register if they relocated to Indiana and had a registration obligation in that state, regardless of whether it is equivalent to an Indiana offense.

All six of the plaintiffs were required to register in Indiana based on a determination by the Indiana Department of Corrections (DOC) and local sheriff’s departments that they had committed a registrable offense or the out-of- state equivalent to such an offense and that they had been required to register in another jurisdiction. Indiana would not have required them to register on these grounds had they been living in the State at the time they committed their offenses and remained there continuously thereafter.

The Seventh Circuit’s initial decision relying on a Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009) recognized that registration requires more than simply appearing at the sheriff’s office. The person registering must be photographed and provide information including their name, date of birth, race, height, weight, hair color, eye color, identifying features such as scars and tattoos, social security number, driver’s license or state identification card number, vehicle description and license plate number of any vehicle the registrant might operate regularly, principal address, name and address of any employer or educational institution, any electronic mail addresses, any instant messaging user names, any social networking website user name and “[a]ny other information required by the [Department of Corrections (DOC)].” Ind. Code § 11-8-8-8(a). Most of this information is published on the public registry. If any of this information changes, the registrant must go in person to the sheriff’s office, within seventy-two hours, to report it. Ind. Code. § 11-8-8-8(c). Convicted sex offenders are required to maintain a valid driver’s license or state identification card, are prohibited from seeking a name change, and must allow a local law enforcement officer to visit their home at least once per year, and at least once every ninety days if the offender is a “sexually violent predator.” Ind. Code § 11-8-8-13(a).

In Wallace v. State, the Indiana Supreme Court concluded, “. . . the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies. … [and the] duties imposed on offenders are significant and intrusive.” SeeWallace v. State, 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana Supreme Court concluded that the Act had the “. . . effect of adding punishment beyond that which could have been imposed when his crime was committed,” and therefore the State could not impose the requirements of SORA on anyone whose offense predated the enactment of that statute. Id. at 384. To do so, it held, would violate the ex post facto clause of the Indiana Constitution. Id. As a result, Indiana does not require any person to register if the offense occurred prior to SORA— provided that person remains a resident of Indiana. This Seventh Circuit decision held that this different treatment “sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit.” Original Opinion at 26.

Recent Seventh Circuit Decision

The Seventh Circuit was very creative in how it managed to undo the previous victory. Judge St. Eve writing for the court noted that Wallace did not foreclose all retroactive applications of SORA because the same day that the state supreme court decided Wallace, it issued its opinion in Jensen v. State, 905 N.E.2d at 388. Unlike Wallace, Jensen pleaded guilty in 2000 which was after SORA’s enactment. At the time of Jensen’s conviction, SORA required that he register as a sex offender for ten years. Before the expiration of Jensen’s ten-year registration requirement, the Indiana General Assembly amended SORA to mandate that offenders like him register for life. He argued that this extension as applied to him violated Indiana’s Ex Post Facto Clause. Unfortunately, the Indiana Supreme Court disagreed. This is in contrast to Wallace, who had no obligations before the legislature amended SORA to cover him. The court said that the broad and sweeping disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. They found that merely increasing the length of an existing registration obligation did not rise to the level of punishment such that it violated the Indiana Constitution.

This case was decided in favor of Indiana based on the fact that these challengers were either required to register by another state or that the person was already required to register due to a previously existing registration requirement. They found that any increase of an existing registration requirement is not unconstitutional. On page 32 of the decision the court stated, “The plaintiffs have not carried their heavy burden of proving that SORA is so punitive in effect as to override the Indiana legislature’s intent to enact a civil law.”

It appears that the Seventh Circuit disregarded Judge Young’s analysis and simply deferred to the Legislature’s stated intent, which they say is not punitive. The court did concede, “While SORA goes farther than the Alaska law in some respects, it is not so far afield as to warrant a different outcome than in Smith.” See Opinion at 32. NARSOL is deeply disappointed that the decision of the full court was to not affirm the three-judge panel. We are not sure if the challengers will seek review by the United States Supreme Court.

This was discussed in more detail on Episode 190 of the Registry Matters Podcast.

HB 56:  Our number one priority was to defeat HB 56, and we are happy to report that it did not pass. HB 56 is the SORNA and human trafficking proposal. The bill contained a provision that would have required registrants who simply own property located in New Mexico to register. The proposal passed the house and move to the senate. Due to the work of LJC and our advocacy allies, the senate took no action before the session ended. Even though the proposal did not pass, they will continue to bring this legislation back year after year.

HB 74:  HB 74 would have restored voting rights to felons upon release from incarceration, and it also would have allowed felons who were sentenced to probation to vote. In addition, it would have provided an alternative process of restoring a felon’s right to hold office upon receiving a “certificate of restoration” from the governor. Unfortunately, HB 74 was hijacked with an unfriendly amendment on the house floor. The amendment would require felons required to register pursuant to SORNA to prove that they are SORNA-compliant before they can register to vote. Representative Gail Chasey, the bill’s sponsor, was very disappointed with the unfriendly amendment. She attempted to bypass the Republican sponsored amendment by amending SB 114 to include the original language of HB 74. Unfortunately, we had not been working on SB 114,and it ultimately died on the senate concurrence calendar. More details on SB 114 will follow.

HB 201:  This proposal would have provided for the early termination of individuals on probation who: (1) are deemed a minimum/medium risk; (2) have met all of the obligations of their probation; and (3) have completed one half of their supervision. The bill passed the house with near unanimous support (64-1). The proposal passed all committees in both the house and the senate. Unfortunately, it died on the senate calendar in the final hours of the session. We are disappointed that this measure will not be sent to Governor Michelle Lujan Grisham for her signature.

SB 114:  This bill had escaped our scrutiny, which meant we were not working on it. We only noticed it when Representative Chasey added her amendment reinstating the original language of HB 74, which we discussed many times in previous updates. The proposal dealt with the releasing on parole those considered to be geriatric, permanently incapacitated, or terminally ill. Although there is already a process to release those who are in poor health, few if any have been granted release by the parole board. This proposal would help facilitate that process, we hope. We do support the legislation and we will be working to get it enacted in a future session. Some key points are listed below.

The term as “geriatric” as defined by the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. is fifty-five years of age or older.
3. suffers from a debilitating and chronic infirmity, illness, or disease related to aging; and
4. does not constitute a danger to the person’s own self or to society at the time of review.

The term “permanently incapacitated inmate” as defined in the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. by reason of an existing medical condition is permanently and irreversibly physically incapacitated; and
3. does not constitute a danger to the person’s own self or to society at the time of review.

The term “terminally ill inmate” as defined in the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. has an incurable condition caused by illness or disease that will, within reasonable medical judgment, produce death within six months; and
3. does not constitute a danger to the person’s own self or to society at the time of review.

House Bill 56 – Oppose

As we reported before, this is the biggest bill contrary to our mission of restricting any additions to SORNA or the stiffening of criminal penalties. It is largely in response to the Jeffrey Epstein attention over the last couple of years and has passed the House of Representatives. Like House Bill 74, we will make our stand in the Senate to ensure this bill goes no further.

House Bill 73 – Oppose

This human trafficking bill’s ambition was clearly to its detriment as it has not moved since its introduction from the House Consumer and Public Affairs Committee. It sought to create a grant fund by charging certain businesses’ customers an extra fee to be deposited directly into a grant fund administered by the Attorney General’s Office. We still expect the bill to be dead, but we will still continue to track it.

House Bill 74 – Oppose

We reported last week that the Felon Voting Rights Bill was amended to create a separate voting rights restoration process for those subject to SORNA upon release from prison. The Republican-sponsored amendment would require an offender subject to SORNA to register with their local authority as a sex offender before their voting rights are restored. The bill has not moved since its assignment to the Senate Rules Committee, and we are working to remove the amendment and get this bill passed.

House Bill 40 – Neutral – Substitute House Bill 352 Introduced

Amid the discussion regarding private prisons and Coronavirus outbreaks, a bill was introduced seeking to institute a moratorium on private prisons by a certain date, requiring all private prisons to cease operations. That bill was largely met with criticism by NMCD for its interpreted impracticality. HB 40 has not moved since it passed the House Judiciary Committee with substantial amendments. Another bill has been introduced as a substitute – HB 352; the difference being that the newer bill only seeks to stop the addition of more private prisons to New Mexico. We are neutral toward the passage of either of these bills, but will continue to monitor any changes as it directly affects many of those we serve out of Otero County’s Correctional Facility.

To read the full text of these bills, go to http://www.nmlegis.gov/Legislation/BillFinder/Number.

To view our expansive bill tracker this session, go to https://libjusco.net/2021/02/11/legislative-session-2021-bill-tracker/.

Plaintiff Background

In 1991, Ronald Reid broke into a woman’s home in Shelby County, Tennessee, and raped her. He was sixteen at the time, and she was an adult. He was prosecuted as an adult, and, on February 4, 1992, he pleaded guilty to especially aggravated burglary and rape. He was sentenced to ten years in prison and was released from prison in 1998 based on good time credits. By the time of his release, Tennessee’s first version of registration was operational. Prior to 1994, individuals in Tennessee convicted of sexual offenses faced formal consequences that were mostly similar to those borne by individuals convicted of similarly serious non-sexual offenses. There may have been unique collateral consequences for sexual offenses in some areas, such as in family law proceedings, and defendants convicted of sexual crimes may have suffered especially severe extralegal reputational harms in their communities.

Registration History in Tennessee

In 1994, the Tennessee General Assembly enacted a sexual offender registration and verification information statute. The initial registration system was relatively undemanding and mostly concerned with ensuring the accuracy of registry information. A person convicted of a covered offense was required to register with the Tennessee Bureau of Investigation (TBI) by paper form within ten days of being placed on probation or release from incarceration. At that time, the information in the registry was generally considered confidential, but the TBI or a local law enforcement agency could release relevant information deemed necessary to protect the public concerning a specific sexual offender. After ten years, a registrant could petition a court to order his or her removal from the registry.

In the ensuing decades, however, the Tennessee General Assembly repeatedly returned to the sexual offender registration statutes to change whom they covered, what they required, and the protection allowed to registered offenders’ privacy. Tennessee’s sexual offender registration system progressed from a relatively simple system, dedicated to information gathering and tracking, into a far-reaching structure for regulating the conduct and lifestyles of registered sexual offenders after their punishments were complete and, in many cases, for the rest of their lives.

The Tennessee General Assembly could not help itself, so it continued its pattern of expanding the requirements of the registration regime by amendment, particularly with regard to restrictions related to children, regardless of the age of the offender’s victim. For example, restrictions about entering schools, playgrounds and other facilities were added in 2008. See 2008 Tenn. Pub. Acts, ch. 1164, § 11. Restrictions related to libraries were added in 2011. See 2011 Tenn. Pub. Acts, ch. 287. The Act’s residence restrictions regarding schools and other facilities were extended to offenders whose victims were adults in 2014. See 2014 Tenn. Pub. Acts, ch. 992, § 1. The prohibition on being alone with children other than one’s own in a “private area” were added in 2015. See 2015 Tenn. Pub. Acts, ch. 516.

Plaintiff’s Complaint

Reid complains that he is especially distressed by the ways in which his registration status has interfered with his parenting. For example, he is unable to take his young children to playgrounds, an activity he had done with his older child before the Act was amended to make it unlawful. His children’s principals have been unwilling to grant Reid permission to come onto school premises, so, while he can drop his children off and pick them up, he cannot go inside or attend school events. For that reason, he missed his daughter’s kindergarten graduation and his stepson’s high school graduation last year. His daughter recently wanted to go to a fair, but he was not able to take her because he believed it to be unlawful under the Act. On top of these restrictions, a police detective has informed Reid that he cannot decorate his house for Halloween, cannot take his children trick-or-treating, and cannot hand out candy himself.

The Court concluded that its analysis in this case would be based on the decision in the case Does v. Snyder decided by the United States Court of Appeals for the Sixth Circuit. See Does v. Snyder, 834 F.3d 696 (6th Cir. 2016). The court determined it should conduct its analysis using the Mendoza-Martinez factors. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Those factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter(intent), [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

In Does v. Snyder, the court accordingly found that the Michigan law was punitive in effect and could not be imposed retroactively. The Snyder court forcefully explained:

A regulatory regime that severely restricts where people can live, work, and “loiter, ” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by -at best- scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

In this case, the court cautioned, “Reid may want and ultimately need to present a good deal more evidence. For now, however, the court can take judicial notice of some basic facts. For example, while the court has no evidence of the full number of parks, schools, child care facilities, and recreation areas in Nashville, the court can take judicial notice of what anyone else in the city can see: that those locations are numerous and spread throughout at least much of the city.” The court noted, “Reid offered at least three examples of instances in which the Act was used against him, none of which gives any indication of having benefited public safety at all. First, Reid, who appears to have been harming no one, was prosecuted for a simple failure to update his information. Then, later, he was arrested and charged again simply for trying to do a job that required him to be on school premises. Third, he was targeted in Halloween-related restrictions which included demanding that he comply with conditions that the state defendants concede appear nowhere in the Act.” The court noted that the mistaken imposition of Halloween restrictions demonstrates that placement on the registry makes one a potential target for law enforcement scrutiny over and above what the law actually requires. The court also stated, “The undisputed evidence in the record, therefore, supports the conclusion that the punitive effects of the Act outweigh any civil benefit.”

NARSOL is excited about this case because it is another step in building the body of case law, which will help us in our long-term goal of elimination of the nightmare of public registration. It is worthwhile to note that the court in Doe v. Rausch mentioned that the Tennessee Supreme Court had fired a warning shot several years ago which the legislature chose to ignore. The court in Rausch stated, “. . . the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive.” As we stated in our previous article, the lesson for lawmakers would be to stop while you are ahead. Unfortunately, we do not expect that to happen because the political pressure is significant due to widespread public support of registries.

Gonzales Manny_Final Letter_8-16-19