REMAKING THE REGISTRY

Fundamental questions raised by the Maine Supreme Judicial Court about the state’s sex offender registry should force lawmakers to reconsider the purpose for and requirements of the registration system. At a minimum, they should eliminate the online dissemination of personal information about all registered sex offenders and ease the requirement that offenders be fingerprinted every 90 days.

Earlier this week, the state’s highest court unanimously ruled that a case brought by a man who pleaded guilty to a sex crime before the registration requirement was in place should not be dismissed. The man, called John Doe in the court proceedings, argued that Maine’s Sex Offender Registration and Notification Act violated his rights by imposing punishment that did not exist when he pleaded guilty in the 1980s to a crime against a family member. His lawsuit was dismissed by the Kennebec County Superior Court last year.

The supreme court ruled that more information was necessary before making such a decision and sent the case back to the lower court.

The court raised serious concerns about the registry, especially changes made in recent years to require Internet posting of personal information about offenders, to eliminate a waiver provision, to restrict where offenders can live and to require fingerprinting every 90 days for offenders convicted since 1982.

These changes have made the law progressively more punitive and intrusive. This likely changed the nature of the sanctions from civil penalties to a retroactive increase in criminal penalties, which could run afoul of constitutional protections, the justices wrote.

The most stinging rebuke came from Justices Donald Alexander and Warren Silver, who wrote a concurring opinion in stronger language. “We now recognize the extent to which the State’s use of the internet to display registration information correlates to the shaming and branding punishments used in colonial times, and we have seen the registries’ potential for causing retributive and vigilante justice against registrants,” they wrote. Last year, two men on the registry were killed by a man from Canada who reviewed their information on the state’s sex offender Web site, the most popular in state government. The justices rightly wonder how making the identity and whereabouts of the state’s registered offenders accessible to anyone anywhere in the world is not unduly punitive.

Worse, this “shaming and branding” often leads to social isolation and depression, which could impede rehabilitation and cause some to re-offend. The registry requirements may thus be harming, rather than protecting, public safety, taking away a major justification for the law, Justices Alexander and Silver wrote.

These justices provide five ways that the current version of the registration act has retroactively enhanced criminal penalties, suggesting these violate the Maine Constitution. The five reasons are: 1) changing a 15-year registration requirement to lifetime supervision; 2) elimination of the chance to waive registration requirements upon showing rehabilitation; 3) exposing registrants to shaming, retribution and vigilantism; 4) requiring them to report in person to local police to be fingerprinted every 90 days for life; and 5) restricting personal liberty by barring those on the registry from certain public places.

Changes considered by the Legislature’s Criminal Justice Committee, such as limiting online posting to information only about the worst offenders, would help ease some of these concerns.

Better would be to return the registration law to its original form – without the Internet posting and with an opportunity for offenders to prove they should be removed from the registry. Information from the registry would still be available to local law enforcement, which could use it to notify nearby residents and schools when an offender moved to the immediate area. This would serve the public safety purpose and satisfy federal requirements without the unnecessary negative consequences.

Lawmakers should also ease a requirement that offenders report to the local police station every 90 days to be photographed and fingerprinted as a way to verify that the person has not moved or changed places of employment. A federal court of appeals ruled that an annual reporting requirement in Alaska imposed “an affirmative disability.” The U.S. Supreme Court disagreed because in-person reporting was not required. Although more onerous than Alaska’s, the Maine court said it did not have enough information to determine if this state’s reporting requirements amount to a disability. With more information, it likely will.

The court, especially the Alexander-Silver opinion, delineates what changes must be made to the registry to ensure it passes constitutional muster. Such changes, while likely to be strenuously opposed, will return the registry to its original purpose of tracking and notification without the unnecessary public shaming.