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State v. Haskell, part 2


b.  Effects.

	[¶13] The next phase of the examination requires us to determine
whether the party challenging the statute demonstrates by the "clearest
proof" that the notification scheme is so punitive in purpose or effect as to
overcome the Legislature's civil intent.{8}  People v. Malchow, 739 N.E.2d
433, 439 (Ill. 2000).  Applying the Ursery and Mendoza-Martinez factors to
the present legislation demonstrates that SORNA's effect is not so punitive
that it defeats the Legislature's civil intent.  
	[¶14] For the purposes of the Ursery factor, SORNA serves
important nonpunitive goals because it is aimed at protecting the public
from sex offenders. Gregoire, 124 F.3d at 1091.  It is well-established that
"[a] law serving nonpunitive goals 'is not punishment, even though it may
bear harshly on one affected.'" Moore, 253 F.3d at 873, (quoting Flemming
v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).  
	[¶15] Applying the Mendoza-Martinez factors further supports a
finding that SORNA requirements do not have a punitive effect.{9}  First,
SORNA does not place an affirmative disability or restraint on sex offenders. 
Their movements and activities are not restricted in any way.  See Malchow,
739 N.E.2d at 439; see also Hendricks, 521 U.S. at 363, 117 S. Ct. 2072
(stating, "[a]lthough the civil commitment scheme at issue here does involve
an affirmative restraint, 'the mere fact that a person is detained does not
inexorably lead to the conclusion that the government has imposed
punishment.'").  
	[¶16] Second, SORNA cannot be historically regarded as a
punishment.  Although the "[d]issemination of information about criminal
activity has always held the potential for substantial negative consequences
for those involved in that activity," it cannot be compared with the public
shaming, humiliation, and banishment of the colonial times, which all
involve more than the dissemination of information.  E.B. v. Verniero; 119
F.3d 1077, 1099 (3rd Cir. 1997) (rejecting appellant's analogy comparing
notification laws to historical acts of public ridicule), cert. denied, 522 U.S.
1109, 118 S. Ct. 1039, 140 L.Ed.2d 105 (1998).  The "sting" of laws like
SORNA "results not from [a person] being publicly displayed for ridicule and
shaming but rather from the dissemination of accurate public record
information about [that person's] past criminal activities and a risk
assessment by responsible public agencies based on that information." Id. 
The "[d]issemination of [accurate information about past criminal activity] in
and of itself . . . has never been regarded as punishment when done in
furtherance of a legitimate governmental purpose," such as that which
SORNA presents.{10} Id. at 1099-1100.   
	[¶17]  Third, the provisions at issue do not come into play based on
a finding of scienter.  "The only requirement for the [registration and]
notification provisions to become effective is that the offender is released
into the community.  Accordingly, this factor does not indicate a punitive
intent."  Malchow, 739 N.E.2d at 440.  
	[¶18] Fourth, the SORNA's operation does not promote the two
primary objectives of criminal punishment: retribution and deterrence.  See
Hendricks, 521 U.S. at 361-62, 117 S. Ct. 2072.  As noted above, the
intention of the Legislature in passing SORNA was to protect the public from
sex offenders.  "The limited release of information to those likely to
encounter sex offenders could hardly be characterized as 'retribution.'"
Malchow, 739 N.E.2d at 440.  See also Russell, 124 F.3d at 1089 (stating the
Washington sex offender registration requirements do not have a retributive
purpose but do have legitimate nonpunitive purposes).  Further, SORNA is
not retributive because it does not affix culpability for prior criminal
conduct.  Hendricks, 521 U.S. at 362, 117 S. Ct. 2072 (stating Kansas Sex
Offender Commitment Act not retributive for same reason).  "Instead, such
conduct is solely used for evidentiary purposes, either to demonstrate that a
'mental abnormality' exists or to support a finding of future dangerousness."
Id., 521 U.S. at 363, 117 S. Ct. 2072.
	[¶19] As to the deterrence factor, the Malchow court noted:
[I]t is possible that the Notification Law would have a
deterrent effect.  However, it is unlikely that those not
already deterred from committing sex offenses by the
possibility of a lengthy prison term will be deterred by the
additional possibility of community notification.  Moreover,
even an obvious deterrent purpose does not necessarily make
a law punitive.

 Malchow, 739 N.E.2d at 440 (citation omitted); accord Russell, 124 F.3d at
1089 (stating, "[a]lthough registration arguably has a deterrent effect,
[United States v.] Ursery[, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549
(1996)]  declared that deterrence can serve both civil and criminal goals.    
. . . Ursery also noted that the fact that a sanction may be tied to criminal
activity alone is insufficient to render the sanction punitive.").  We agree
with the Malchow court and conclude that SORNA's purpose is to protect
the public.  It does not significantly promote either retribution or
deterrence.
	[¶20] Fifth, the behavior to which SORNA applies is, in fact, already a
crime; the registration and notification requirements only relate to those
people who have committed criminal actions.  Nevertheless, the fact that
SORNA's requirements are triggered by a criminal conviction is common to
all regulatory disabilities that result from a prior conviction, i.e., the loss of
the right to vote in some jurisdictions.  Doe v. Pataki, 120 F.3d 1263, 1281
(2nd Cir. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L.Ed.2d
126 (1998).  The Second Circuit noted that
The disabilities mandated by the laws challenged and upheld
in several Supreme Court decisions have also been triggered
solely by the existence of a prior conviction.  See e.g.,
Hawker [v. New York], 170 U.S. [189,] 196-97, 18 S. Ct.
[573,] 576-77[, 42 L.Ed. 1002 (1898)] (prior felony
conviction conclusive evidence of lack of fitness to practice
medicine).  As with the laws upheld in Hawker . . . , the
offender's prior conviction is used by the SORA "solely for
evidentiary purposes," i.e., as a presumption that the
offender is likely to re-offend in the future.

Pataki, 120 F.3d at 1281 (additional citations omitted).  The Supreme Court
stated in Hendricks 
We have previously concluded that an Illinois statute was
nonpunitive even though it was triggered by the commission
of a sexual assault, explaining that evidence of the prior
criminal conduct was 'received not to punish past misdeeds,
but primarily to show the accused's mental condition and to
predict future behavior.

Hendricks, 521 U.S. at 362, 117 S. Ct. 2072.  In addition, registration and
notification helps locate sex offenders who commit new crimes; the law,
therefore, is no more onerous than necessary to protect the public from
harm, which is a permissible regulatory goal.  See People v. Ansell, 24 P.3d
1174, 1186 (Cal. 2001); cf. Malchow, 739 N.E.2d at 440 (stating that,
because the notification requirements only relate to those people who have
committed criminal actions, the fifth factor of the Mendoza-Martinez test
weighs in favor of the defendant; however, the notification requirements
were deemed constitutional when considering the Mendoza-Martinez
factors in whole).  
	[¶21]  Sixth, SORNA has a purpose, other than punishment, that can
rationally be associated with the law.  As set forth above, SORNA's purpose is
to protect the public; the law was not intended as punishment.  Seventh, the
law does not appear excessive in relation to the goal of protecting the public
from sex offenders by enhancing access to information concerning sex
offenders.  34-A M.R.S.A. § 11101 (Supp. 2000).  The information is not
widely disseminated.  It is only disseminated to certain State agencies and
to members of the public "who the department determines appropriate to
ensure public safety." 34-A M.R.S.A. §§ 11142 & 11143 (Supp. 2000);{11} see
also Pataki, 120 F.3d at 1281-82 (rejecting plaintiffs' contentions that, inter
alia, the punitive character of New York's sex-offender laws is indicated by
its broad coverage of offenses, the wide extent of notification it authorizes,
and the permission it grants to entities with vulnerable populations to
disseminate information to the public with unfettered discretion (i.e.,
daycare centers)). 
	[¶22]  Finally, sex offender registration and notification laws have
been the subject of much litigation and have been overwhelmingly sustained
as constitutional by the majority of courts,{12} including the United States
District Court for the District of Maine, see Corbin v. Chitwood, 145
F.Supp.2d 92, 99 (D. Me. 2001). In Corbin, the court held that the Portland
community notification law did not violate the Ex Post Facto Clause because
it did not constitute punishment.{13}  Id. (citations omitted). The court also
found that the defendant had not "shown that the notification program is
punitive (the record indicates that it was used in the interests of public
safety), or that the punitive purpose or effect of the notification was so great
as to negate the remedial intent of the policy." Id. (citations omitted). 
Similarly, Haskell has not met his burden of showing, nor has our analysis of
the above factors revealed, that SORNA is punitive or that its punitive
purpose or effect is so great as to negate the remedial intent of the
registration and notification policies.  The trial court, therefore, did not err
in applying SORNA to Haskell.

C.  Sentencing Court's failure to specify Haskell's status as either a sex
offender or a "sexually violent predator" is a harmless error.

	[¶23]  Section 11222 of SORNA provides that "[t]he court shall
determine at the time of the conviction if a defendant is a sex offender or a
sexually violent predator.  A person who the court determines is a sex
offender or a sexually violent predator shall register according to this
subchapter." 34-A M.R.S.A. § 11222 (Supp. 2000).  
	[¶24] The trial judge did not appear to make an express
determination as to whether Haskell was a "sex offender" or a "sexually
violent predator." See 34-A M.R.S.A. § 11203 (Supp. 2000).{14} At the
sentencing hearing, the judge merely placed an "X" in the box on a form,
entitled "Judgment and Commitment," in the following manner:
|X|IT IS ORDERED THAT THE DEFENDANT, HAVING BEEN
CONVICTED AS A SEX OFFENDER, SATISFY ALL
REQUIREMENTS IN THE SEX OFFENDER REGISTRATION
AND NOTIFICATION ACT. (34-A MRSA Ch. 15) YOU MUST
SUBMIT TO THE TAKING OF YOUR FINGERPRINTS AND A
PHOTOGRAPH AS SPECIFIED IN THE NOTICE OF DUTY TO
REGISTER.

This represents the only form, signed by the trial judge, that references
Haskell's responsibilities and status for the purposes of SORNA.  On the
same date, however, two additional forms-signed by Haskell-were
completed by an unidentified individual-probably the Clerk of the Superior
Court-clearly and unambiguously classifying Haskell as a "sexually violent
predator."  These latter forms were not signed by the trial judge, but the
record indicates Haskell received and signed copies of all three forms.   
	[¶25]  Haskell contends that, by checking the box on Judgment and
Commitment form, the trial judge made a specific determination, for the
purposes of 34-A M.R.S.A. § 11222, that Haskell is a "sex offender." 
Because the "sexually violent predator," rather than the "sex offender,"
label covers the offense with which he was charged, Haskell argues, without
supporting authority, that the court's noncompliance with the SORNA
labelling requirements constitutes an "incorrectible" error, which makes
void the application of SORNA to him.   Neither he, nor the State, discusses
the implications of the other forms to this analysis.
	[¶26]  Looking at the three forms, however, we cannot say that the
trial judge, by merely checking a box in the Judgment and Commitment
form, was making a determination as to Haskell's classification for the
purposes of section 11222.  That form references 34-A M.R.S.A. ch.
15-SORNA-only generally; it does not identify specific provisions. 
Consequently, by checking the box in question, the judge could only be said
to be giving Haskell notice of his registration obligations under SORNA. 
There is no basis for Haskell's contentions that the court had affirmatively
categorized him as a "sex offender," particularly since the accompanying
forms-completed on the same date-perform the specific task proscribed
by section 11122.
	[¶27] The court's failure itself to specifically make that
determination in this case is a harmless error.  As noted above, the forms
accompanying and completed on the same day as the Judgment and
Commitment makes the appropriate section 11122 classification; thus, it
cannot be said that notice to Haskell is an issue.  Further, as Haskell himself
recognizes, a person who is convicted of the crime of unlawful sexual
contact pursuant to 17-A M.R.S.A. § 255(1)(C) can only be classified as a
"sexually violent predator." 34-A M.R.S.A. § 11203(7)(A) & (8)(A) (Supp.
2000).  There is no alternate category requiring a ruling that involves
judicial discretion.  Accordingly, we find the court's failure to specifically
classify Haskell as a sexually violent predator constitutes a harmless error.{15}         
	The entry is:
Judgment affirmed.
              
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