Awesome victory in Montana
By Larry . . . NARSOL is excited to report on a win in the case of Montana v. Richard Hinman. We just learned of the case although it was decided on June 14, 2023. The question and issue before the court was: Did retroactive application of the Sexual or Violent Offender Registration Act violate the prohibition against ex post facto punishment in Article II, Section 31, of the Montana Constitution?
The case arose from an appeal filed by Richard Hinman. Hinman appealed an order entered in a trial court in 2019. The district court denied Hinman’s motion to dismiss the charge against him for failure to register. Hinman was convicted of an offense in 1994 and discharged his sentence. At the time, Montana’s Sexual Offender Registration Act, now known as the Sexual or Violent Offender Registration Act (SVORA) required Hinman to maintain registration for ten years and only to submit an annual verification through mail. As is so common in most states, the Montana Legislature amended the SVORA requirements to include more onerous steps and applied them retroactively to previously convicted registrants. When Hinman was charged with failure to register in 2019, he argued that the charges should be dismissed because the amended SVORA requirements had evolved and now rendered the statute an unconstitutional ex post facto punishment. After the district court denied Hinman’s motion, he pled guilty to the charge while reserving his right to appeal.
States appear to be unable to help themselves, continually piling on more requirements that transform what was originally a relatively benign regulatory system into something clearly punitive. In 2003, the Montana Supreme Court issued a decision finding that the intent and effect of SVORA was not to punish people convicted of sexual offenses. Rather, the Act served as a regulatory scheme collecting and disseminating information meant to reduce recidivism and help the public mitigate potential harms State v. Mount, 2003, 317 Mont. 481, 78 P.3d 829. The court gave a passing nod to the inclusion of reducing recidivism as part of the purpose of SVORA, writing “[A] growing body of research into the effectiveness of sex offender registries has cast significant doubt on their capacity to prevent recidivism” and citing a 2013 study Opinion at 14.
It should be noted that Hinman had pled guilty to a registry violation and paid a fine prior to this case. In 2019, Hinman again faced a charge of failure to register. By that time, the SVORA scheme had grown yet further. There had been amendments in 2007, 2013, 2015, and 2017.
Those amendments included many new obligations for Level 2 offenders such as Hinman. This is a far different registry than what was originally enacted back in 1994, as shown here.
- Originally the person was automatically removed after 10 years from initial registration. Now 25 years must pass without a re-offense or failure to register before they can petition for removal from the registry, and Level 3 offenders cannot petition for removal at all.
- Registrants must now supply law enforcement with DNA samples, email addresses, social media names, vehicle descriptions, license plate numbers, social security numbers, and workplace and school addresses.
- Law enforcement is empowered to supply most of that information to the public.
- Registrants must now update their address, work, and school information within three days of a change.
- All updates as well as periodic verifications and new photographs must now be conducted in-person with law enforcement.
- Transient registrants must now check in with law enforcement monthly.
- Any time registrants leave their county of residence for more than 10 days, they now must re-register in whatever county they travel to and re-register upon returning home.
Hinman challenged his 2019 charge “. . . on the grounds that our earlier reasoning about the nonpunitive nature of SVORA no longer holds true today” Opinion at 5. The court noted Hinman cited a growing body of caselaw in other jurisdictions regarding the constitutionality of applying similar laws retroactively, and he pointed to the breadth of collateral consequences for SVORA registrants that are apparent today but did not exist or were not well understood in 1989 or 2003. The State argued that the court should hold fast to State v. Mount (2003) and maintain its reasoning and outcome as applied to the present SVORA provisions and Hinman’s case. The court stated, “The basis for our analysis of whether the present SVORA is punitive does not arise in a vacuum but rather exists within a larger jurisprudential context. Mount, for example, found its footing in the U.S. Supreme Court’s reasoning about an Alaskan sex offender registration law. [That case is Smith v. Doe.] In Smith, the U.S. Supreme Court held that Alaska’s law did not violate the ex post facto clause in the federal constitution because it was not punitive. Later the same year, Mount addressed Montana’s SVORA, which was then relatively similar to the Alaskan law. In that decision, we explicitly adopted the U.S. Supreme Court’s analytical framework and the ‘intents-effects’ test” Opinion at 7-8. In Mount, the Montana Supreme Court reasoned that a scheme which merely increases the accessibility of already-public criminal records information and requires those with such records to periodically mail in address verification is not as onerous as criminal punishment and can fall on the civil regulation side of the line. The court stated, “Our analysis in Mount of whether SVORA imposed an affirmative restraint or disability on registrants noted that verification by mail is a minor and indirect restraint and does not affect someone’s physical movement” Opinion at 9.
The court continued, “It is one thing to have your already public criminal record made more accessible and to periodically update your address with the record-keepers. It is another to be placed under a probationary surveillance system in perpetuity which is designed to facilitate social ostracism. It defies common sense and sound judgment not to view the latter situation, the SVORA scheme since 2007, as punishment for a person’s sexual crime. All the features of the Act that supported our decision in Mount have changed dramatically since the law’s amendments in 2007, 2013, 2015, and 2017” Opinion at 10-11. “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…” Opinion at 15.
NARSOL is elated with this outcome, and we look forward to more legal victories using similar arguments.
Larry is an authority in legal issues, legislative affairs, and policy.
The most important line:
“It defies common sense and sound judgment not to view the latter situation, the SVORA scheme since 2007, as punishment for a person’s sexual crime.” (from the Court opinion)
As we’ve been saying all along: OF COURSE IT’S PUNISHMENT!
retroactivity. smektoactivity.
its a bill of pains and penalties because a legislative condemnation that extinguishes 4th 6th and 13th amendment rights.
imo.
Analysis and conclusion expressed in this opinion from the Montana Supreme Court are indeed fantastic. We can all feel some vindication for what we have been saying for decades.
It would be interesting to maybe keep a running tally somewhere on the NARSOL site of all state supreme courts as well as federal courts where similar rulings have emerged, as I think there is a growing body of such decisions.
Are cracks of truth beginning to appear in the prison walls of the registry ?
I hope so .
One state down, numerous more to go.
As we all know, it is a start, but if you do not live in that district, it usually will not help those in other districts. Some judges will allow them, but most say they are non binding outside of those districts.
Hope this win helps many people and not just this one man. Also, glad he did not give up and kept stinging the courts like stirred up bees.
The SO Registry is unconstitutional , Purnishment and UnGodly. It is also, Double Jeopardy all over the World. As I stated, years ago, if one of the Lawmakers Loved Ones get caught up in this situation, they will Turn this Crap around. The registry is a Waste of Taxpayers monies.
they didnt resort to implementation of convicted criminals for the production of critical public safety data because of the convicted criminals trustworthyness. they did it because they didnt want to pay for its fair market value to government and apparently thought they could get away with forcing a disfavored subclass to perform the data service for free and hide their criminal misdeeds under overly ambiguous burdensome and confusing ex post facto laws. refusing subsequently to even reimburse the targeted individuals for out of pocket expenses from travel and loss of work hours resulting from in person registration evinces an intent to injure.
imo.
I have a hard time understanding how any of this matters, when we get told by police and lawyers both that we don’t have any constitutional rights. We don’t have the constitutional right to plead the fifth when cop show up at our door questioning us about registration information, after we have already registered and did our yearly duties. The same cops telling us that they don’t have to get off our property and they can stay on our property as long as they want. Because we don’t have rights. And the people that are supposedly fighting for our rights in the state of Texas, at least, just go along with all of this nonsense even though there are no laws stating that it has to be done. Why do any of the supposed wins matter, when they are allowed to do anything even when it’s not law? We are already allowing ourselves to be a second class citizen that has no rights.
Unbelievable! All Human Beings supposed to have Rights. What is becoming of these Lawmakers? Do they actually want some people to vote? If they Allow unconstitutional laws to exist, what idiot will vote on this corrupt system?
I found it very interesting that one of the prongs cited in the 2003 State supreme Court ruling (and quoted by this instant ruling) is that the registry (back then) did “not affect someone’s physical movement”.
Speaking in a broad legal sense, every time I must appear for one of these forced interrogations (under penalty of felony prosecution) at the county jail, here in Lee County, Florida, I feel that I am being kidnapped by the State of Florida in defiance of Habeas Corpus!
Good stuff…Thanks for showing us this, Larry (and for all you do.)
The fact that they stated: “Opinion at 10-11. “We conclude that the SVORA structure in place since 2007 is punitive.” is a good start at pointing out that this whole SORNA scheme is punitive and unconstitutional. I think everyone on the registry understands that it is difficult to roll back laws that are so universally adopted by the naive and uninformed public. Law makers do not dare try to repeal these laws as it is career suicide. The only way to remove these punitive and unconstitutional laws is by the US Supreme Court ruling them unconstitutional. That little sentence above is a movement in that direction. Great win! Keep going!
On the subject of the registry and its myriad of disabilities and restraints, I don’t think the public is naive and ignorant. I think it is a case of knowing, wanton vindictiveness and an insatiable appetite for revenge. Just read the comments on any article about a violent, murdering vigilante killing a P.F.R. and see how many people boisterously proclaim the murderer should be given a medal, not a prison sentence.
I’m just waiting for the movie “The Sound of Freedom” to spur some murdering monster into carrying out an act of vigilante murder against a P.F.R. with charges involving a child under 12. The emotions that this movie appeals to is scary to me. Movies like this just pour fuel on the fire and goad legislators into piling on even more draconian laws.
And, in agreement with WC_TN, it can further be stated (quite obviously) that this brand of hatred is actively underpinned by the several governments in the USA.
Indeed, it is State-Sponsored Hate
Congrats ! Lets Go! Hopefully Michigan is next. 🙏🏽
Sure has been a long drawn out battle.
Let these unconstitutional rules fall as they should have never been wrote, giving these power hungry Politicians and state officials this kind of power is a crime.
These cases have no bearing on the existence of the registry. As I have seen every case published on this site deals with retroactive concerns only. These retroactive laws apply to other legal cases outside of registry laws. Although I am grateful for these wins, they are not legal cases won for the removal of the registry.
So the Bigger question is, do they roll back the rules and just enforce the earlier rules or are those who are affected allowed to be removed from the registry?