MT Supreme Court: The Registry is Punitive
Montana has joined a small but growing list of state supreme courts that have ruled that their states’ registries are punitive and cannot be imposed retroactively. Selected excerpts:
“A growing body of research into the effectiveness of sex offender registries has cast significant doubt on their capacity to prevent recidivism.” And “the burdens and intrusiveness of SVORA have increased substantially through the subsequent amendments.”
“We conclude that the SVORA structure in place since 2007 is punitive and therefore cannot apply retroactively under the ex post facto clause. Unlike the pre-2007 SVORA, the law today places onerous, life-long affirmative restraints on registrants that significantly hinder their liberty and deprive them of privacy. These burdens and the scope of information collected are excessive in relation to the civil regulatory goal. Criminal conduct is undisputedly the trigger for the registry requirements, and the registry itself, by design, implicates a host of collateral consequences and encourages social stigma. These characteristics are emblematic of criminal punishment.”
“Under our constitution, citizens have the right to be free from retroactive punishment. If the people, through their legislature, wish to create harsh and long-lasting consequences for certain crimes, they may do so, but it is unconstitutional to reach back years or decades and alter the punishments from previous convictions or retroactively punish conduct that was once lawful. By amending SVORA to create a punitive scheme of harsh and lifelong consequences for sexual offenses, the State created a structure that it can only constitutionally apply to convictions in a prospective manner.”
“We hold that SVORA, as amended since 2007, is punitive in nature. The requirements brought on by those amendments cannot be retroactively applied to defendants whose convictions predate them.”
VERY SURPRISED THAT CONNECTICUT HASNT JUMP ON BOARD SO IT CANT FIX THE WRONGFUL CONVICTIONS AND FAKSE VICTIMHOOD. ESPECIALLY WOMAN AGAINST FARHERS FOR A DIVORCE IR CHILD CUSTODY CASES. MEN SUFFER THE MOST IN CONNECTICUT.
Good. Now Florida!
I know for a fact, if the SORNA is unconstitutional in one of two States, it should be in All parts of the US. I’m from Texas and know some people and their families are being apart from each other’s due to Sex Offenders restrictions. It should had been demolished years ago
Speaking of Texas, its constitution does not allow for civil or criminal expo-facto laws. But that has not stopped the TX Supreme Court, Governor and legislature from adopting expo-facto sex offender laws.
I found an easier to read article https://www.kpax.com/news/crime-and-courts/montana-supreme-court-rules-in-sexual-and-violent-offender-registration-act-case
Eugene V Debs
Yes much clearer. So Richard Hinman was able to take his case back to court because of a failure to register. So does this mean we must break the law in order to get it back in court to get justice from an unconstitutional requirement?
My case is very similar to his removed from the registry after 10 required years but then because of changes in laws since then now have to register for life plus all the other requirements they have added since then.
So we can move to Montana now?
This makes 3 or 4 states, now?
Am I correct?
1)Michigan
2)Pennsylvania
3)California
4)Montana
In my opinion, the entire registry scheme will, eventually, be declared unconstitutional by SCOTUS.
For it is, in fact, a perversion of the US Constitution by rabid and crazed witch-hunters using mob tactics!
–A true twisting of jurisprudence (with the sanction and blessing of the government)!
But I also believe that it will take decades before it goes back to the SCOTUS.
Meanwhile the elephant in the room will continue to jostle and stamp and grow and grow and (hopefully) get louder and louder and more and more indignant at being so caged!!!
My advice: ALWAYS obey the registry laws-don’t give the bastards an excuse or help them to justify their state-sponsored hatred!
But, whenever you can, be LOUD AND DEFIANT! Help that elephant-in-the-room become a truly unmanageable nuisance!!
Just my thoughts.
Not quite. Some of these states declared LIFETIME registration as unconstitutional. South Carolina and TN are missing. Not sure about CA
Well we knew that let’s hope more states agree.
The United States Supreme court needs to Review this horrible Registry. It has made people homeless, nonproductive and some have Major Depression. This Registry does not Protect the Public.
Go, MONTANA! Now, if they can only reform their day-to-day “injustice” system. Backwards Virginia needs to move in that same vein!
Good news for sure! I am a little confused by it though, because I don’t really understand why the retroactive part has anything to do with the punitive part. What I mean is, if the registry is punitive then it would be going forward or retroactive.
The ruling seems to read that the registry “pre-2007” fulfilled the definition of corrective, but laws that amended the Reg after 2007 were punitive and thus should not be apply to anyone on it before the 2007 Amendments. i.e. You’re still on the Registry since 2000 but anything passed after 2007 and amended to it did not apply to you.
If the registry laws are in effect when a crime is committed then the registry can be considered part of the punishment. That does not conflict with the constitution. The problem here is that people are required to register years or decades after a criminal act. For many people there was no registry win they committed the crime. The registry is adding punishment for an act that has already been punished. That is unconditional. They are getting away with it by pretending that the registry is not punishment.
Old Karen, if it’s punishment then it cannot be enforced retroactively without violating the constitution. If it’s not punishment, then it can. And even if it is punishment, it can be enforced prospectively without violating the constitution.
Ex post facto laws do not violate the constitution.
Punishment does not violate the constitution.
But ex post facto punishment does violate the constitution.
@Jacob
But the registry is not applied equally. Robbers, car jackers, Killers (not publicly listed), home invaders, DUI killers, and no other crime has these registries. Therefore, it should be called punishment, unconstitutional and revoked.
CherokeeJack
I could not agree more. The registry is a life long punishment. I feel that if you have done your time then you should be able to live your life as long as you are not arrested again.
I wonder how they picked 2007 as the defining date that it became punishment? Looking at our ex post facto law suit appendix, the registry increased its punishment almost every year in Florida. I wonder if they will pick a newish year for instance like 2018 when gps bracelets became mandatory for registration violations as in their mind when it became punishment or will they go back further to when the rules were less severe.
I know we have the win the case first but when we do how can you tell a Florida registrant that for instance the law in 2006 was not punishment but became punishment. I believe you could show that it’s been punishment since it’s inception, and that’s why it should be done away with.
It sounds like it would not remove you from registration, just remove the laws added after 2007? If there was no registry when you were arrested, it seems it was still applied retroactively, and should also be thrown out. I was arrested in 1991 but was added in 1997. Going back to 2007 wouldn’t do much, any retroactive law should be outlawed.
If that applied here, it would not affect me because if they threw everything out since 2007, I would still have to register 4 times a year. Until they claim any retroactive registry or even any registry is illegal, we will remain a suppressed and oppressed population.
Yes CheerokeeJack; sadly, we are a suppressed and oppressed population.
But, IMHO, we must be a LOUD and WILLFUL “suppressed and oppressed population” (within the law – for now).
–Otherwise, we are nothing but pathetic.
Cherokeejack’s observation, “any retroactive law should be outlawed,” reminds me of how the constitution’s ex post facto provision works.
Our constitution does not prohibit ex post facto laws per se. And in fact many of us can probably think of ex post facto laws that we support. But it’s ex post facto PUNISHMENT that’s unconstitutional.
And when we go to court to challenge the registry, it’s never enough to assert that the registry is harsh, or to assume that judges are familiar with it. Instead, it’s up to us to PROVE that the registry is nothing but punishment, by proving that it in fact has nothing to do with public safety. Fortunately, that’s what happened here.
I agree I just found this PowerPoint https://vcservices.vcgov.org/agenda/agendas/20230620/Item-18-10855.pdf (towards the bottom) and there talking of increasing the distance from parks you can live from 1,000 to 1,500 feet in voluisa uncorporate areas June 20th just because… how is that not punishment. Now even more of the county is off limits to reside in. How could this not constitute as punishment? But somehow, with the laws, we have to show injury and restraint SMH
“How is that not punishment,” asks Eugene and others. But it’s not enough to show injury, restraint, and hardship. Because the other side claims that it has something to do with public safety. It’s our job to disprove that notion in court.
I will give an example. When I was 19, the law said people 19 and up could drink alcohol. Soon after they changed the law to 21. Having said that, those of us under 21 who had already been drinking, got grandfathered in are were able to continue to drink.
They did not go back and retroactively say we could no longer drink, rather we were allowed to continue drinking at 19 and 20 years old. Just anyone turning 19 on the day of the ruling had to wait until they became 21.
What if a city decided no one could own a rottweiler once the a new law past? Imagine the outrage from those who already owned one and had to sell or give it away?
Now image that those who had once owned a Rottweiler were also punished even if they had not owned that Rottweiler for many years.
‘Imagine if’ will always be a losing argument in court for us. They do not consider sex offenders to be the same as Rottweiler owners.
Cherokeejack
Your illustration of the Rottweiler is not just an illustration. Recently in the nearby city of Independence Missouri they were pressured to change a similar law. About 20 years ago a pit bull mauled a 4year old boy. So the city in acted a law banning pit bulls from the city. The law caused a lot of trouble for the very reason you mentioned. Plus all the shelters were overrun with perfectly good pit bull dog that had no where to go. So now after all this time they decided to change the law and allow pit bulls again. Knee jerk laws not well thought out always cause more problems than they solve.
The registry is just an example of a knee jerk reaction law poorly thought out.
One never sees a law get enacted and the penalty applied retroactively. For example lets say the current fine for running a stop sign is $130. The law is changed and the fine is increased to $200. Does the city go after everyone who has ever been cited for running a stop sign and make them pay an additional $70? No.
How then is it not punitive for a registrant to currently be able to live and work lets say within 1500 feet of a school, but later the law is changed to make it 2000 feet and the registrant is forced to move out of his house?
It’s not a penalty if the state claims it’s related to public safety and we fail to prove otherwise in court.
How is that proving public safety? Wasn’t the before 1,000, or 1,500 doing just fine, and just that? Why now the need for 2,000? If 1,000 was perfectly fine to protect public safety, why add 50% or double it?
The state doesn’t have to prove public safety. WE have to DISPROVE it if we want the courts to find it to be punishment.
@Digusted
I saw a few cities where they made people move after retroactively applied registry restrictions [moderator’s note: citation(s) needed]. How does a judge not find that one of the most restrictive penalties imaginable, outside of sending you to jail? Making someone who owns a home, to have to move because the city says so? That is WAY more restrictive than the NO candy at Halloween sign. Trick or treat is one damn night, moving is permanent.
Even someone who is renting, forcing them to move, they will lose their deposits and probably get bad credit for breaking their lease. But again, the courts seem to sleep just fine at night knowing someone is homeless because of their ruling.
I lived in Martin County, was approved for my residency restriction distances, was on probation where both the Sherriff and my PO had been to my home numerous times for check ins, and suddenly they decided the HOA pool was a place “children can congregate” which changed my 1000 ft rule. I was like 950 feet away, around a corner and down the block but as the crow flies it was 950 feet through the woods and swampland.
Sheriff called me, and gave me 24 hours to vacate my home I owned. I immediately called my PO who was visibly pissed off for me and really had my side, but said there was nothing he can do, it was the Sheriff’s jurisdiction and he could not over rule them even though my “approved” residence was fine with probation. So I had to go to a crappy approved hotel, change my drivers license multiple times to “match” the room number I was assigned that changed week over week. I moved out of the county and had to sell the house. Super stressful situation. Mind you, my original offense is a 4th degree misdemeanor from out of state from a decade ago. Not like I was a real danger to the community.
@Tony
I am so sorry this has happened to you. But you can find comfort in the “Fact” that the county states it is NOT punishment. (Massive sarcasm implied)
I would say there are lots of resources available but even in large cities like where I live, they cannot even fix a pothole with an act of congress.
Psalms 86:17
17 Give me a sign of your goodness, that my enemies may see it and be put to shame, for you, LORD, have helped me and comforted me.
Here is a more direct link for the Supreme Court if Montana case.
https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=433575
It’s simple in Fl. The juvenile registry is not retroactive but the adult registry is. Case closed if an honest judge
I hope New York and Hawaii will be the next states to change their laws. SCOTUS DEFINITELY NEEDS TO OVERTURN BOTH MEGAN’S LAW, AND INTERNATIONAL MEGAN’S LAW!
Awesome! I can’t wait until the Court decision in Does v. Swearingen, if they ever get around to it.
@David
Seems to them to not be much of a priority. It was like when I didn’t want to do something when I was a kid I would run away from home. Avoiding responsibility at all costs.
TO GIVE THE EIGHT ANSWER TO THE COIRTS, OTHER THAN WE ALREADY KNOW THAT STATS AND HOW IT IS OBVIOUSLY NOT GOOD FOR SOCIETY AND DOES NOT GOOD FOR FAMILIES AND NO GOOD FOR BUSINESSES OR THE ECONOMY.
SIMPLY LOOK AT The State of Connecticut.
The only thing is to sign a piece of paper every 90 days and in between those times you can go where you want so what ever you want as long as you don’t harm anyone and don’t break the laws or harm anyone… Free to go. But this in place and a very small crime rate and does no good but harm society and stop families for providing for the families.
Point PR ven is the economy would be better off with no back ground checks and no registry.
Safety measures for the public are already in place and to reduce the amount of harm in society.
The registry and the requirements are in fact bombastic and these politicians know it and these judges know it. They are the problem to societies VIOLANCE not the people.
Also, Connecticut is a 10 yr registry state. Only certain (heinous sex offenses) get 15 yrs or life on the registry there.
I am the sister-in-law of a sex offender. The laws placed on SO affect their entire families. I am angry and heart broken at the cruelty that is spewed on these people and their families. They are human beings too!!!