N.H. Supreme Court: Disabled sex offender eligible to get off sex offender registry

Today's Concord Monitor

The state Supreme Court ruled unanimously yesterday that an aging, disabled sex offender should be excused from the state’s registry if he can prove he no longer poses a threat. At the same time, the court said the registry law is not overly punitive toward those convicted before it was created.

The case involves “John Doe,” an unidentified Manchester man who was convicted in 1987 of sexually assaulting his teenage stepdaughter. He was placed on probation until 1990, during which he attended counseling. The registry was created two years later. Doe is now in his 60s, permanently disabled and living in a boarding house.

Ten years ago, Doe made an effort to move in with his son, but the neighborhood petitioned the landlord to refuse. He was injured a year later and today can only move around with a cane or mobility scooter. His doctors recommended he move into public housing, but the Manchester Housing Authority denied the application after learning of his registry status.

Doe’s attorney, Bill Chapman, argued that Doe no longer poses a threat and yet remains subject to harassment and squalid living conditions because of the registry requirement.

The court reviewed a similar argument in 1994 but found the registry as it existed then was not overly punitive to those convicted before it was created. In their order yesterday, the justices noted that the registry requirements have evolved over time and “are significantly different from the act that we considered 20 years ago.”

Today, registrants are classified into three tiers, with Tier III, under which Doe falls, representing the most serious offenses. Tier III offenders are placed on the registry for life and must report in person to their local police station four times per year.

The court found that the law today creates an undue hardship on Doe, given his physical condition and previously completed sentence. The new rules, they said, effectively impose an altogether new punishment.

“We are convinced that the punitive effects clearly outweigh the regulatory intent of the act,” Justice Robert Lynn wrote for the court.

But the justices were careful not to issue a blanket ruling on the registry law itself. They said Doe can be excused if he can prove to a lower court judge that he no longer poses a risk “sufficient to justify continued registration.”

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)

SOURCE:  http://www.concordmonitor.com/home/15656968-95/nh-supreme-court-disabled-sex-offender-eligible-to-get-off-sex-offender-registry

CCJR Comments:

You will find the decision of John Doe v. NH here: http://www.courts.state.nh.us/supreme/opinions/2015/2015012doe.pdf

We will post a more detailed interpretation of this decision shortly.

Concord Attorney, Michael J. Iacopino, reports that "The court essentially held that the NH registry, at least for Tier 3 offenders convicted prior to 2006 (roughly) is a retrospective /ex post facto punitive law. The case was argued on an “as applied” standard and not a facial validity standard but the language of the opinion would apply to most, if not all Tier 3 offenders convicted prior to 2006 ( I think.)  While the remedy is somewhat fuzzy, the court seems to require a due process hearing to be held  similar to the fair hearing process used to adjudicate child abuse complaints. The opinion suggests that the hearing be held, at least in the interim, in the Superior Courts. This will likely lead to a substantial amount of litigation as well as legislative action."

So it appears that:

The Doe case is a partial, and important, victory for NH.  The court found that the registry (at least for Tier III and, possibly Tier II) had a punitive effect and therefore violates the ex post facto clause. Until the legislature remedies this…and believe me they will want to…every Tier III and Tier II offender who believes he has reason can petition in court to be removed from the registry. This will be a nightmare for the Superior Courts, and everyone will want the Legislature to add a review provision to the law to stop these suits.

Meanwhile, NH lawyers should be preparing for a lot of new clients.
Check back later more further updates.