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.

In December 1993, Defendant Betts pleaded guilty to second-degree criminal sexual conduct (CSC-II). The trial court sentenced him to 5 to 15 years’ imprisonment. Two years later, SORA took effect. After Betts successfully completed parole, he failed to comply with SORA regarding his requirements. Specifically, in 2012, he failed to report his change of residence, his e-mail address, and his purchase of a vehicle within 3 days. Betts was charged with violating SORA’s registration requirements. He challenged the statute as being unconstitutional as applied to him since his offense occurred prior to the existence of registration in Michigan.

Parallel Federal Litigation

Due to the fact that there were multiple challenges pending, some mistakenly thought that the matter had already been resolved by the Does v. Snyder case decided by the United States Court of Appeals in 2016. See Does #1-5 v. Snyder, 834 F3d 696, 705-706 (2016). The Snyder case was initiated in 2012 by five plaintiffs required to register as Tier III offenders due to the 2011 SORA amendments. They sued Michigan’s governor and the director of the Michigan State Police, arguing that the 2011 SORA was unconstitutional on several grounds. In a series of opinions, the federal district court partially ruled in the plaintiffs’ favor, holding that the 2011 SORA’s student-safety zone provisions were unconstitutionally vague, that certain in-person reporting provisions were unconstitutionally vague, that certain in-person reporting provisions violated the First Amendment, and that registrants [litigants] could not be held strictly liable for violating the 2011 SORA’s requirements. However, the district court rejected the remainder of the claims, including their argument that the retroactive application of the 2011 SORA violated ex post facto protections. On appeal, the Sixth Circuit held that the various amendments imposed in 2006 and 2011 had tipped the legal analysis and that Michigan’s SORA was unconstitutional as applied to the plaintiffs.

Michigan’s First Registration Law

“Although Michigan’s SORA as initially enacted was similar to the Alaska sex-offender registry at issue in the Smith, subsequent amendments have imposed additional requirements and prohibitions on registrants, warranting a fresh look at how the 2011 SORA fares under the constitutional ex post facto protections.” Opinion at 15. The Michigan Supreme Court cited Doe v. State, 189 P3d 999, 1017 (2008) wherein the Alaska Supreme Court held that because of intervening amendments of its sex-offender registry that increased requirements and restrictions on registrants, the retroactive application of its sex-offender registry laws violated ex post facto protections. Id at 15. This first version of Michigan’s SORA created a confidential database accessible only to law enforcement. It required persons convicted of certain sex offenses to register and notify law enforcement of address changes. Since then, the legislature has amended the act several times, altering both the nature of the registry and the requirements imposed by it.

Evolution Year by Year

Michigan’s registry became accessible to the public in 1997 when the legislature required law enforcement to make the registry available for in-person public inspection during business hours. Shortly thereafter, in 1999, the legislature required computerization of the registry and granted law enforcement the authority to make the computerized database available to the public online. And in 2006, the legislature allowed for the registry to send e-mail alerts to any subscribing member of the public when an offender registers within or when a registrant moves into a specified zip code. As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded as well. In 2002, registrants were required to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education. Two years later, in 2004, the legislature directed registrants to provide an updated photograph for addition to the online database. In 2011, more personal information, including employment status, electronic mail addresses and instant message addresses, vehicle information, and travel schedules were added. Registrants were required to update law enforcement of these changes within three business days, a substantial shortening of the time frame from the initial 10- day reporting window. The updates were also required to be made in person rather than by mail, telephone, or e-mail.

Unable to Stop While Ahead

As with most state legislatures, Michigan’s was not able to help itself, and they kept piling on more and more requirements and prohibitions. Specifically, amendments effective in 2006 created exclusion zones that prohibited most registrants from living, working, or loitering within 1,000 feet of a school. The legislature also added an annual registration fee of $50. In 2011, the legislature also enacted significant structural amendments of SORA. These amendments (designed to achieve AWA compliance) categorized registrants into three tiers on the basis of their offenses and based the length of registration on that tier designation. With this reclassification came lengthened registration periods, including a lifetime registration requirement for Tier III offenders. Registrants’ tier classifications were also made available on the public database.

Proving Unconstitutionality

For evaluation of whether registration is civil and non-punitive, the United States Supreme Court has provided seven non-exhaustive factors are relevant to the inquiry. SeeKennedy v. Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 644 (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.
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.
7. Whether it appears excessive in relation to the alternative purpose assigned

They went on to say, “Again, a challenging party must provide the clearest proof of the statutory scheme’s punitive character in order to [successfully] negate the State’s intention to deem it civil.” The Court continued, “In determining whether defendant has satisfied this burden, we do not examine individual provisions of SORA in isolation but instead assess SORA’s punitive effect in light of all the act’s provisions when viewed as a whole. We assess in turn each of the factors that the United States Supreme Court identified as relevant in Smith.”

The Court found that, of the five factors it deemed relevant, four weighed in Betts’ favor. Two of the factors were deemed not relevant for the analysis.

NARSOL found it highly significant where, on page 28,  the Court said, “Given the uncertainty of the 2011 SORA’s efficacy, the restraints it imposed were excessive. Over 40,000 registrants were subject to the 2011 SORA’s requirements without any individualized assessment of their risk of recidivism. The duration of an offender’s reporting requirement was based solely on the offender’s conviction and not the danger he individually posed to the community. Registrants remained subject to SORA—including the stigma of having been branded a potentially violent menace by the state—long after they had completed their sentence, probation, and any required treatment. All registrants were excluded from residing, working, and loitering within 1,000 feet of a school, even those whose offenses did not involve children and even though most sex offenses involving children are perpetrated by a person already known to the child. As described, this restriction placed significant burdens on registrants’ ability to find affordable housing, obtain employment, and participate as a member of the community…” Opinion at 28-29.

Disabilities & Restraints

In order for registration to be imposed retroactively, it cannot impose disabilities or restraints. See Smith v. Doe, 538 U.S at 100. The court noted that, “. . . the 2011 SORA’s student-safety zones excluded registrants from working, living, or loitering within 1,000 feet of school property. Unlike traditional banishment, these exclusion zones did not explicitly exile a registrant from the community. But they might have effectively banished a registrant from living within the community. For example, in urban areas that host several schools within their geographic borders, the 1,000-foot restriction emanating from each school might have eliminated access to affordable housing. Or, in rural areas with fewer schools but concentrated community areas, the 1,000-foot restriction might have eliminated a registrant’s access to employment and resources within the town or city center. And available homeless shelters might have also been encompassed by the 1,000-foot residency restriction.” Opinion at 18. Compare with Smith v. Doe, 538 US at 101 noting that the 2003 Alaska sex-offender registry, which the United States Supreme Court held did not violate ex post facto protections, left registrants free to move where they wish[ed] and to live and work as other citizens. The Court also found, “. . . THE 2011 SORA also resembles the punishment of shaming. The breadth of information available to the public—far beyond a registrant’s criminal history—as well as the option for subscription-based notification of the movement of registrants into a particular zip code, increased the likelihood of social ostracism based on registration. While the initial version of SORA might have been more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality…” Id at 18.

Conclusion of the Court

NARSOL is excited that the Court’s conclusion is unambiguous. “We hold that the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws. As applied to defendant Betts, because the crime subjecting him to registration occurred in 1993, we order that his instant conviction of failure to register as a sex offender be vacated.”

The appeals court stated, “While we fully acknowledge that, to date, the internet has become one of the most important places, if not the most important place, for people to exchange views and ideas, under the circumstances here, we disagree with both of Landis’s contentions.” The court briefly recited the facts underlying Landis’ conviction. “According to the affidavit of probable cause for arrest, Landis sexually assaulted his stepdaughter when she was ten years old. The evidence included his admission to police that he touched the victim’s vagina and breasts. In a negotiated pea, Landis pleaded guilty to one count of attempted sexual assault on a child.  The parties stipulated to a sentence to probation.

At the sentencing hearing, the prosecutor agreed with the recommendation in the presentence investigation report, that the court sentence Landis to sex offender intensive supervision probation (SOISP) and require him to comply with (1) the standard “Additional Conditions of Probation for Adult Sex Offenders” (the standard conditions) and (2) the recommendations in the sex offense specific evaluation (SOSE). The court sentenced Landis to seven years of SOISP. As for the two standard conditions restricting use of the internet and social media, the court required Landis to comply with those conditions but modified them to allow for such use required by his employment at the electronics installation company.

Landis argued that he should not be required to comply with the two standard conditions prohibiting use of the internet and social media without prior approval from his probation officer. He emphasized that he is required to use the internet in his ongoing employment at an electronics installation company. He also argued that the conditions violate his constitutional rights based on Packingham v. North Carolina (2017) which invalidated a statute creating a new felony offense for violation of post-custodial restrictions on sex offender access to social media.

The court emphasized that probation is an alternative to prison and is intended to be rehabilitative Opinion at 4. Colorado Revised Statutes, Section 18-1.3-204(2) lists the various conditions of probation that a district court may impose, which includes a catchall for “any other conditions reasonably related to the defendant’s rehabilitation and the purposes of probation.” The court relied on People v. Brockelman, 933 P.2d 1315, 1319 (Colo. 1997). The court stated, “We conclude from our evaluation of the five Brockelman factors that the probation conditions at issue restricting Landis’s use of the internet and social media are reasonably related to his rehabilitation and the purposes of probation. First, the conditions are reasonably related to Landis’s underlying offense. To be sure, Landis did not use the internet in attempting to sexually assault his stepdaughter. However, he engaged in sexual conduct with a child, and it was reasonable to place restrictions on Landis’s use of a medium that easily can be used to facilitate contact with children.” According to the SOSE, objective testing indicated that Landis’s highest sexual interest is toward juvenile females. It also concluded that he was in high denial regarding his offense. The SOSE recommended that he be “monitored carefully while in the community” and “not have contact with [the victim] or with anyone younger than 18.”

The Supreme Court specifically pointed out in Packingham that “of importance” to the Court was “ . . . the troubling fact that the [North Carolina] law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system.” The Supreme Court repeated the same point soon after, concluding that “It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.”

The Colorado Court of Appeals concluded that Packingham is distinguishable on that basis. Unlike the defendant in Packingham, Landis is quite obviously still serving his probationary sentence for a sex-related offense. They went on to say, “As the United States Supreme Court held in United States v. Knights, “Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled” ’ ” Opinion at 13. Finally, the Court said that there are ample alternatives. “The probation conditions at issue still leave ample channels of communication for Landis to engage in everyday life. For example, Landis may still communicate in person, communicate over the telephone, receive news from television and newspapers, and write to his government representatives” Opinion at 18.

On December 1, 2008, Powell was indicted for having knowingly through the Internet contacted and communicated with a person whom he reasonably believed to be a twelve-year-old girl, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity in violation of SC Code Ann. §16-15-342. On April 2, 2009, Powell pled guilty to the indictment and was sentenced to two years’ imprisonment suspended to one year of probation. At sentencing, the court notified Powell that he would be required to register as a sex offender under SORA, which mandates lifetime registration for sex offenses, including criminal solicitation of a minor.

On November 21, 2016, Powell filed a petition in the circuit court for a declaratory judgment, claiming SORA does not permit publication of the state’s sex offender registry on the internet, and the lifetime duration of his sex offender registration constitutes excessive punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 15 of the South Carolina Constitution, deprives him of due process and equal protection, and warrants equitable relief in the form of his removal from the registry. After cross-motions for summary judgment by the parties, the circuit court held a hearing and granted Powell’s motion on all claims. The circuit court held SORA’s lifetime registration requirement is punitive under the Eighth Amendment and violates Powell’s rights to due process and equal protection. The circuit court also determined SORA does not permit publication of the state’s sex offender registry on the internet.

Mark Keel, Chief of the State Law Enforcement Division (“SLED”), and the State of South Carolina, were not happy with the circuit court’s decision. The state filed a motion to alter or amend the judgment, which the circuit court considered under Rule 59(e), South Carolina Rules of Civil Procedure (SCRCP), and denied. Thereafter, the state appealed to the court of appeals, which transferred the case to the Supreme Court pursuant to Rules 204(a) and 203(d)(1)(A)(ii), SCACR. The South Carolina Supreme Court affirmed the circuit court and held SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending. Unfortunately, they reversed the circuit court and held that subsection 23-3-490(E) permits dissemination of the State’s sex offender registry information on the internet.

The South Carolina Supreme Court has previously recognized the state’s legitimate interest in requiring sex offender registration. The court noted, “We find the initial mandatory imposition of sex offender registration satisfies the rational relationship test in light of the General Assembly’s stated purpose. In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), the U.S. Supreme Court found that due process does not require a pre-deprivation hearing where the registry requirement is based on the fact of previous conviction. The South Carolina Supreme Court overruled itself and stated, “. . . notwithstanding this finding, we hold SORA’s lifetime registration requirement without any opportunity for judicial review to assess the risk of re-offending is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending.”

The court noted that the development of a judicial review process is a matter best left to the General Assembly and stated, “We are confident in the General Assembly’s ability to fulfill our request to fashion the particulars of the hearing process. Nevertheless, we require the hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration be conducted with reasonable promptness and meet standards of fundamental fairness.” NARSOL is hopeful that the General Assembly will find it within its power to create a process that is fair and offers all registrants a way to be removed from the registry list and resume a more normal life. Our advocates in South Carolina are optimistic that legislators will do the right thing as ordered by the state’s highest tribunal.

The critical point is that the New Mexico Administrative Code (NMAC) now clarifies that it is the Department of Public Safety (DPS) who must make the determination, not the local sheriff. The fact that the determination is made by the DPS provides some insulation from a sheriff that believes a person should have to register here if the person was required to register in another jurisdiction.

10.2.3.10 (A) NMAC provides “Within forty-five calendar days after the department receives the initial registration information the out-of-state registrant is required under Section 29-1 lA-4 NMSA 1978 and Section 10.2.3.9 above to provide to the sheriff, the department shall complete a translation and advise the out-of-state registrant and the sheriff whether the out-of-state registrant was convicted in another jurisdiction of a sex offense equivalent to one or more of those sex offenses identified in Subsection I of Section 29-1 lA-3 NMSA 1978 and is required to register as a sex offender in New Mexico.

10.2.3.10 (B) NMAC reads as follows. “The standard to be used by the department in determining whether the out-of-state conviction is equivalent to a sex offense listed in Section 29-1 lA-4 NMSA 1978 is one of clear and convincing evidence.”

10.2.3.10 (D) NMAC provides protection for the registration. “While the translation is pending, no information regarding the out-of-state registrant shall be entered in the public facing portion of the local or state central registry.”

LJC is gratified about the outcome and we are looking forward to reporting how this process is working once it’s fully operational. LJC would not have been able to undertake this project or the other work we do without the financial support we receive from you.

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.

The case is May v. Shinn; this is NARSOL’s brief.  It focuses on Petitioner May’s third question presented: “Whether trial counsel’s failure to challenge the constitutionality of the Arizona child molestation statute was ineffective assistance of counsel warranting relief under the Sixth Amendment based on application of Strickland v. Washington, 466 U.S. 668 (1984).” This case is crucial and impacts so many for the simple reason that the state of Arizona has chosen to shift the burden, requiring the accused to disprove intent for the touching rather than requiring the prosecution to prove criminal intent.

In 2007, Stephen was convicted by a jury of child molestation for briefly touching children over their clothing in public and in full view of numerous adults and other children. Unfortunately, Stephen suffers from a neurological condition called ataxia which makes him appear odd and causes him to be clumsy. The most troubling aspect is that Arizona stands alone amongst the states in requiring a defendant accused of certain sexual crimes to prove their innocent intent for the touching rather than requiring the state to carry that burden of proving guilt.

Stephen, who has maintained his innocence from the beginning, has been fighting to reverse his conviction since 2007. In what can only be described as a tragedy, Stephen had woefully inadequate representation which only exacerbated the numerous errors in his case. As eloquently stated in our brief by Professor Sullivan, “NARSOL represents members of a particularly unpopular or hated group in American society who deserve effective representation by counsel in order to protect their right to due process of law, a right long recognized by this Court.”

After exhausting appellate review in the Arizona courts Stephen filed a habeas petition in the United States District Court for the District of Arizona, the Honorable Neil V. Wake presiding; Stephen May was granted relief based on trial counsel’s ineffective assistance.  May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017). On appeal, the Ninth Circuit Court of Appeals initially sustained the grant of relief on an alternative ground asserted in May’s petition, but rejected by the District Court, 766 Fed. Appx. 505, 509 (9^th Cir. 2019). On rehearing, the panel reversed its decision and denied relief on all claims. May v. Shinn, 954 F.3d 1194, 1208 (9^th Cir. 2020). The Ninth Circuit relied on that single decision of an intermediate state court to rationalize that trial counsel’s failure to challenge the burden shifting statutory scheme was acceptable in terms of reasonable practice by defense counsel. It then deferred to the state post-conviction courts’ finding that counsel’s failure did not demonstrate deficient performance under Strickland to avoid consideration of the merits.

When all of the legal terms and court references are stripped away, this case is simple and extremely critical. For decades, as long as our nation and our Constitution have stood, when a person is accused of a crime, the state must prove he is guilty before a conviction can be had. The state of Arizona has shifted that burden, ignoring the Constitution, and in an unprecedented reversal is requiring the accused to prove he is innocent.

It is for all of these important reasons and more that NARSOL committed the resources necessary to help fight this important case. This is the second time NARSOL has filed an amicus brief in this decades old case. We are hopeful that the Supreme Court will recognize the significance of this case and grant 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/.

The two John Doe plaintiffs each brought a separate action against the governor of the state of Tennessee and the director of the Tennessee Bureau of Investigation, each in their official capacity only. In their respective complaints, plaintiffs alleged  that the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution, (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.

The Sixth Circuit had previously upheld Tennessee’s sex offender registry laws against challenges similar to those plaintiffs brought in these two cases. SeeCutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999). The problem is that legislatures just can’t help themselves, and they keep piling on more and more restrictions. Prior to SORVTA (Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004), Tennessee’s registration requirement was known as the Sexual Offender Registration and Monitoring Act of 1994 (SORMA). SORMA was frequently amended, expanding SORMA’s scope and requirements and contracting registrants’ level of confidentiality. Notably, SORMA was amended in 2000 to require lifetime registration for those convicted of actual or attempted aggravated rape, rape, aggravated sexual battery, or rape of a child. On June 8, 2004, SORMA was repealed and SORVTA was enacted. SORVTA replaced the framework for sex offender registration and restrictions in Tennessee. While much of the former system continued, SORVTA created a new classification of registrants and a new series of requirements, depending on a registrant’s classification. In 2014, the General Assembly of Tennessee again amended SORVTA to create a new offender classification: “offender against children.” Registrants whose victims were twelve years or younger at the time of the offense became subject to lifetime registration, regardless of whether the underlying offense was categorized as “violent.” It was the violent classification that appears to have helped John Doe #1. He had no history of violence.

Quoting from the opinion, the court stated, “Indeed, the Sixth Circuit’s decision in Snyder I has reshaped how district courts in this Circuit analyze challenges to sex offender registration laws under the Ex Post Facto Clause. In their Partial Summary Judgment Motion, Plaintiffs rely heavily on the ruling in Snyder I, arguing essentially that SORA is substantially identical to the Michigan law at issue in Snyder I and is in violation of the Ex Post Facto Clause.” See Opinion at 19. In Snyder I, the Sixth Circuit held that Michigan’s Sex Offenders Registration Act imposed punishment and that therefore the retroactive application of MSORA’s 2006 and 2011 amendments was unconstitutional as violative of the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016). The court in Snyder I took issue with three parts of the statute, which cumulatively made the statute unconstitutional under the Ex Post Facto Clause: (1) the prescription of restricted zones where plaintiffs could not loiter, live, or work, (2) the public classifications to which plaintiffs were subject, and (3) the reporting obligations under MSORA.

There were some claims that survived the state’s motion to dismiss that were not decided by the judge. The plaintiffs asserted that the law violates the right to free speech guaranteed by the First Amendment and imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment. Those claims were not decided because the court was able to grant the relief, they sought on the Ex Post Facto Clause. This is standard for courts. They do not decide issues when it’s unnecessary; however, the court did make it clear that these issues are not frivolous, but they will have to wait for another day.

It is not known at this point if the state will appeal. Generally speaking, the odds are good that they will because they are hard wired to appeal every finding that a statute is unconstitutional. There is a slim chance that they may not in this particular case because the controlling precedent in the Sixth Circuit will be difficult for them to overcome, and they will have to be really creative to distinguish Tennessee’s registry from Michigan’s. There was a recent decision from the Sixth Circuit that held there is an independent duty under federal law to register.

House Bill 56 – Oppose

As we discussed last week, this bill deals primarily with amendments to New Mexico’s SORNA scheme by requiring persons with a non-equivalent out-of-state sex offense conviction to register in New Mexico solely based on their requirement to register in another state. The amendments by the House Judiciary Committee have reworded the bill to exempt those with conditional discharges from having to register once they have completed their conditional discharge’s supervision; this would mean that only upon successful conditional discharge would the duty to register be relieved. The other change to the bill is defining the requirements for exempting non-equivalent out-of-state sex offense convictions; the wording specifies that a court must find “good cause that the individual’s registration will not advance public safety in New Mexico.” Both amendments are a marginal improvement on the original bill’s text, but we still do not support the bill as it stands. We will continue to work on derailing this bill’s progress.

House Bill 62 – Oppose

This bill extends the statute of limitation on 2^nd degree murder by removing it altogether. The House Consumer and Public Affairs Committee has formally tabled this bill as of 2/15/21. Similar bills by Representative Rehm have also been tabled by their committees. We will continue to monitor any developments or substitute bills, but this makes the bill essentially dead for the legislative session.

House Bill 73 – Oppose

This bill seeks to create a new human trafficking grant fund by requiring extra fees from live adult entertainment businesses and internet-device retailers. It has been a month since this bill was formally referred to the HCPAC. This lack of activity leads us to believe it may be dead for this session, but the content of this bill may resist a formal tabling like HB 62. Once again, we will continue to monitor the bill daily and update our bill tracking table accordingly.

House Bill 201 – Mixed

This bill proposes minimum or medium risk probationers have their probation terminated early upon completing half of their probation term and fulfilling all their probation’s obligations. As it currently stands, the bill has passed the HCPAC and is formally referred to the House Judiciary Committee. No changes have been made to the wording, so our previous concerns regarding this bill still stand. We believe that it is moving in the right direction, but without specificity regarding which types of probation obligations need to be met or the validated scoring instrument to be used, we cannot take a position on this bill.

Senate Bill 141 – Support

This bill is similar to probation and parole reform bills we have supported in the past. As discussed, it creates distinctions between SVO/SO supervision and standard supervision by instituting a mandatory technical violation program (STEPS) and a mandatory arrest program for SVO/SO supervision only. No changes have been made to the bill since it emerged from the Senate Health and Public Affairs Committee last week. We support this bill in its current form as it requires a judge’s ruling before any offender is put on notice regarding mandatory arrest violations; we also support engraining the STEPS program into a statutory scheme that requires NMCD to follow it in all cases.

Senate Bill 310 – Oppose

This bill is an effort by lawmakers to extend the statute of limitations for certain child sex crimes to age 35. Since its introduction at the beginning of the month (2/1/21), the bill has had no activity. Like HB 73, the content of the bill resists a formal tabling. We will continue to monitor any activity regarding this bill and work to derail it should it begin to move forward.

House Bill 74 – Oppose

This is one of the House bills that is already awaiting Senate intro. At first glance, the bill champions reform by eliminating voter restrictions on convicted felons that are out-of-custody on parole or probation. A closer read of the bill requires sex offenders to register under SORNA before their voting rights are restored upon conviction; it also goes on to limit the effects of a governor’s pardon only to restore the right to hold public office. For both reasons, we cannot support the bill.

We have an exhaustive list of relevant bills this legislative session we have been tracking daily. For more information, visit https://libjusco.net/2021/02/11/legislative-session-2021-bill-tracker/.