State House News: Sex offender registry a retroactive punishment

The Supreme Court invited a wave of litigation this month with its ruling in John Doe v New Hampshire that the sex offender public registry is a retroactive punishment for lifetime registrants who did their crimes in 2005 or earlier.  That group includes perhaps as many as half the people on the registry today.

According to the State Police, 61 percent of the people who register must do so for life. Maybe a few of them committed their crimes after 2005 and have earned parole in the meantime. The Doe decision would give them no relief.

John Doe can now receive a due process hearing to escape the registry, probably in Superior Court, where he will bear the clearly misplaced burden of showing he no longer poses a threat to public safety.  Still, we hope hundreds of similar registrants will seek that relief if they can pay a lawyer and if they can afford expert witnesses and risk assessments. 

The unfair legal onus 

If lifetime registration without review for those convicted 10 years ago is an unconstitutional ex post facto punishment, why should the burden of proof lie with Doe to prove he is no longer dangerous? Why not strike down this offensive law for all those convicted prior to its enactment?  It should be left to the Legislature to craft a non-punitive version.

Why subject Doe to the withering publicity of a hearing that will expose him, along with his street address and his clinical records, to a media only too eager to demonize him yet again for a crime he committed three decades ago? Why tell the vigilantes how to find him so late in his life?

Citizens for Criminal Justice Reform filed an amicus brief supporting Doe that summarized the New Hampshire war on sex offenders. It is fanned by an Internet site that posts their mug shots as if they were all like Jeffrey Dahmer, who raped and ate his many victims. The court bent over backwards to concede the alleged intent of the registry, that it safeguards the public. But the legislative record of every sex offender law in the last 13 years shows the incremental ratcheting up of registration requirements by lawmakers was based not in fact, but on fear, a desire to further punish sex offenders, and the intent to drive them somewhere else.

How you can help: Visit  to make a tax exempt donation using a credit or debit card through PayPal. Or join our organization as a member the same way.   As a nonprofit agency we are raising money to pay the expert witnesses for a proposed follow-up class action suit. A lawyer outside of CCJR wrote a related brief some time ago and has recruited a broad group of plaintiffs. We were all waiting for the Doe ruling. It is flawed, but good enough. In the near future we hope to review plans for that litigation in light of the recent opinion. We also plan to file a CCJR suit in federal court challenging the $50 sex offender registration fee as an ex post facto punishment. Lawmakers this month boosted our prospects by killing our bill to repeal the fee. 

Both suits will argue that a huge body of research shows the registry destabilizes registrants. It makes them jobless and homeless. It demoralizes them. It strips them of friends, of family. Registrants are getting attacked and murdered in Keene and many other places. Neighbors are torching their houses and apartment buildings. The roster sets their kids up for bullying on the playground and in school assemblies. 

The panic is based on misinformation 

The journals of criminology widely confirm that sex offenders have the lowest same-crime recidivism rate of any ex-offenders in the first three years after release from prison. Federal Department of Justice studies show the new sex crime rate in the first three years after prison is 5.3 percent. And the lifetime recidivism rate after prison is 9 percent. Similar state sponsored studies vary from 1 to 5 percent in the first three years in state after state. Worse, the new-crime and recidivism rates before and after the public registry went live are identical. It’s a feel-good policy that does nothing to safeguard soccer moms and their kids.

The public registry is actually a solution without a problem. John Stephen, assistant commissioner of Safety in 2002, urged lawmakers to post our registry on the Internet because only 16 of the 717 people who had ever registered in New Hampshire had done new sex crimes. Just 12 of them had actually victimized someone. Similar political opportunism has driven all the tweaks to the registry since then.

We’re running out of time to save Medicaid expansion 

Under a landmark new law, 34,000 low income people have enrolled for the first time in Medicaid, many of them parolees who can now pay for their medications and drug and alcohol addiction treatment. That coverage automatically sunsets in 2016 unless we fight to save it.

Several prison reformers met with the House speaker last week, who told us we face an uphill campaign. That means we had better mobilize our troops and make a compelling case for funding and extending this program. Today the feds pay 100 percent of that cost. After 2016 the state’s share will be 10 percent, with the feds paying 90 percent. 

Folks, that’s a pretty good deal for New Hampshire. Most parolees struggle with addiction and mental health issues that Medicaid coverage would help address. Saving Medicaid expansion is a matter of public safety. CCJR has been working since the summer with a group of community organizers who hope to stop mass incarceration. We’re still brainstorming about goals and strategy, but we know that saving Medicaid expansion is critical. If you watched 5,000 people rally for the little guy on the State House lawn in 2011, as I did, then you know what needs to happen this spring.  Get in touch with us if you can help.

Department of Corrections presents its budget next week

Bill Wrenn, the commission of Corrections, has to build an staff a new women’s prison that will, tragically in our opinion,  reach full capacity when it opens in a couple of years. His line officers are working double shifts now two and three times a week. The cellblocks are crowded. These are very dangerous problems. 

We fear that lawmakers will try to cut his budget and personnel the way they have done for a decade while the prison population soars under a wasteful 19th century punishment philosophy. Please come to Wrenn’s budget talk before the House Finance Committee on Monday, March 2, at 10 a.m. in Room 210 of the Legislative Office Building. We’ll keep you posted when the House holds its public hearing on the overall proposed budget. That will be your best chance to send a message to lawmakers until the Senate takes up the budget bill. Wrenn will make a sales pitch for his capital budget on at 10:30 a.m. March 6 in Room 210 of the LOB.

Senate set to strip best part of crime council bill 

The Senate Judiciary voted 5-0 last week to kill a great idea CCJR worked on this fall: to add a former prisoner to the blue ribbon Interbranch Council on Juvenile and Criminal Justice. A heavily amended SB 53 will appoint the women’s warden to that board, but not an ex-offender. We know of half a dozen bright, articulate men and women who have rebuilt their lives after prison. Any of them would hold their own eloquently on a criminal justice policymaking panel.  Some of them will testify at the House public hearing on SB 53. Prison reformers need to pack that meeting.

Parole bill needs some further work

We spoke last week against HB 472 to codify the way the Parole Board has long handled the politically charged decision of releasing someone from parole supervision before the end of their maximum sentence. Today most people serving a five-to-10 year bid do their last five years on parole. But the Parole Board frees some of them from any oversight before the 10 years expire. Not often, to be sure. The bill would let the board release a low risk, model parolee after serving two thirds of his or her scheduled time on parole. The board’s criteria would include the severity of their crime, their record in prison and on parole, the wishes of the victim, and the amount of restitution paid. 

The proposed standards are not yet in statute. We humbly suggest that a highly competent, non-political and objective court imposed scrupulously equitable minimum and maximum sentence based on the seriousness of the crime and all of its aggravating  and mitigating issues. Those were fully weighed once and for all in maybe the fairest adversarial process possible on this earth in a democracy.

By the same reasoning, the Parole Board should never consider the severity of the crime in deciding the fate of a parolee. Parole Boards across the country, and especially in New Hampshire, have been highly vulnerable to pressure from the media and public opinion. 

The same is true of the feelings of the victims so late in the process. The court fully weighed their loss and suffering in choosing a lenient or draconian bid for that prisoner.  The Parole Board years later should not consider the concerns of the victim in deciding the length of sentence. A judge did that in the wisest, humanly possible way. The wishes of the victim matter, of course, in setting the conditions of parole. That’s a question of safety and peace of mind. Parolees often receive appropriate limitations on contacting or living near the victim.

The Board’s overriding consideration should be the assessed risk the offender still poses, if any. The law should carry a presumption in favor of releasing any low-risk offender who has worked hard to rehabilitate himself or herself. That means releasing even murderers and sex offenders, perhaps the least popular group of parolees. According to all the journals of criminology, they both have extremely low same-crime recidivism rates. We have asked the House committee to retain the bill for further study. 

We would welcome that chance to debate the bill in subcommittee in hopes of finding a good compromise. The Parole Board chairwoman, Donna Sytek, is a prison reformer working to clean up the benighted parole process she inherited. Her intentions are good, and the result of this legislation, if tweaked a little, might be more frequent releases from supervision than we see now.