NH Supreme Court Finds Sex Offender Registry Violates Constitutional Rights


The New Hampshire Supreme Court has just found the State’s sex offender registry unconstitutional. The Court decided the list is an ex post facto violation. An ex post facto law is any law that increases the punishment for crimes committed before its enactment.

Click here to view the court decision.

Sex offender registries have often been challenged as ex post facto violations. Politicians are constantly increasing registration requirements, despite the fact that most registrants committed their offenses years, even decades ago. In 2003, the United States Supreme Court heard a similar challenge to Alaska’s sex offender registry. In deciding whether Alaska’s registry was ex post facto, the Court used an intent-effects test. The New Hampshire Supreme Court used the same test when looking at New Hampshire‘s registry.

The “intent” part of the test examines the law’s history to see if lawmakers intended to increase punishment. The “effects” part looks at how the law works in real life - does it result in more punishment, even if the legislature didn‘t intend it to. The New Hampshire high court found the intent of the registry was not punitive, despite statements by lawmakers that sex offenders should be punished for the rest of their lives. But the Court found the registry failed the effects test, being punitive in its application to John Doe and similarly situated registrants.

And who is John Doe, the petitioner? Although he remains anonymous, we know he pleaded guilty in 1987 to a 1983 sexual assault. He was sentenced to four years probation. He got counseling. In 1990, the judge released Doe from probation, satisfied that he was rehabilitated. He has lived as a law-abiding citizen ever since. But in 1994 lawmakers created New Hampshire’s sex offender registry. It requires Doe register as a sex offender for the rest of his life. Since then, registry requirements have become increasingly burdensome. Every few years lawmakers add a new twist. Now he must go in person to the local police station every ninety days. His mug shot and personal information have to appear on a public website.

A few years ago, he tried to move in with his son. But, when neighbors found him on the registry, they got up a petition to prevent the move. In 2006, he had an accident and became permanently disabled. His doctors recommended he find public housing. But, because he’s a lifetime registrant, he’s not allowed to. So he lives alone in a single room in a boarding house.

In considering the effects of lifetime registration, the New Hampshire Supreme Court said a new lifetime requirement to report to police every ninety days and provide all sorts of personal information is a serious restraint on liberty. The Court said the public shaming effect of putting offenders’ pictures and personal information online resembles the old-fashioned punishments of the stocks and the pillory. Since the registry sweeps in all ex-offenders regardless of their dangerousness, the Court found it looks more like retribution for past offenses than a true public safety measure. Most importantly, the Court said when a registrant is no longer a risk to the public, making him register as a sex offender for the rest of his life amounts to nothing more than increased punishment for his past crimes.

When the Court finds a law unconstitutional, it usually strikes it down, because civil rights violations assault the constitutional fabric of our Republic. But here, the Court hesitated. The registry is the result of many laws, it observed, incrementally creeping toward this ex post facto violation. John Doe’s civil rights died the death of a thousand cuts. The Court declined to “parse” each cut, each tightening of the law, to decide just when the registry became illegal. And then there are the 1650 other Tier III registrants in New Hampshire. Some of them are in the same position as Doe, but others are not. Invalidating the registry would cause “an untoward result that would substantially undermine the act’s public protection goals.”

The Court decided, absent the lifetime registration requirement, it could live with all the other punitive effects of the registry. So, Doe must be "promptly" given a hearing to show he is no longer a risk before being removed from the registry. But the devil is in the details.

Who will conduct these hearings? Until the Legislature can re-write the law, the Court assigned the duty to the already overburdened Superior Courts. How prompt is “promptly“ when a constitutional right is being violated? The Court didn’t say. And what standard will be used to decide if Doe, or any other registrant, is no longer a risk? The Court didn’t say. And who will pay for these hearings and evaluations and appeals and re-evaluations? Should registrants, who have been made unemployable and indigent and too often homeless by an unconstitutionally punitive law, have to pay for the restoration of their own civil rights? And what if they can't?

The court didn’t say. The New Hampshire Supreme Court is to be applauded for finally taking this honest look at years of increasingly punitive registration laws based more on hysteria than fact. But, until the Legislature is equally ready to deal in fact instead of fear, New Hampshire will continue to struggle with this contentious issue.

Questions or comments contact: info@ccjrnh.org