Awesome victory in Montana

This post was written by someone, or multiple people, within the organization of NARSOL.

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.