Registry fee as it exists is a serious violation of New Hampshire citizens’ property rights.
CCJR believes the registry fee as it exists is a serious violation of New Hampshire citizens’ property rights. Donate toward a Federal law suit challenging the registry fee.
The State of New Hampshire may only take the property of its citizens without their consent and without compensation under two highly restricted circumstances: taxes and fines. The registry charge is not a tax, and would be illegal as a tax, because it is disproportionate - targeting the property of a select group of disfavored citizens to fund a public benefit. Neither is the charge a proper fine, because it was not imposed at the time of sentencing, and did not even exist at the time of the offenses of most registrants who are required to pay it.
The State may request money from citizens in the form of fees for benefits selectively provided to them (like drivers license or hunting permit fees, or the fees paid by parolees). But, this charge is not a legitimate governmental fee because it is not voluntary and it does not pay for a private benefit to the payers.
This charge is a form of governmental extortion. It makes the liberty of a group of disfavored citizens dependent upon their paying the state $50 a year, whether they want to or not. “Shut up and pay up, or go to jail.” Because we do not like the guys who are forced to pay this charge, we ignore the danger it poses to all citizens’ property rights.
A federal district court recently found a similar fee n Wisconsin unconstitutional (see below), and New Hampshire is ripe for a similar, costly challenge in federal court. That suit is already prepared. If the fee is found unconstitutional by the Court, the state could be required to refund offenders all the money it has so far collected. Help us challenge this violation by making a donation to Registry Fee Challenge http://www.ccjrnh.org/donate
From Wisconsin District Court order against fee, Doe v Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2013), “after Plaintiffs’ convictions, Wisconsin amended its sex offender registration statute to authorize the DOC to require sex offenders to pay a $100 annual fee to help offset the costs of monitoring sex offenders’ activities. Wis. Stat. § 301.45(10). Defendants cite no case upholding the imposition of such a charge on individuals based solely on a prior conviction, and the Court has been unable to find any authority on its own. Though denominated a fee and intended to offset the costs of monitoring sex offenders, the annual assessment bears a striking resemblance to a fine. A fine, of course, is a traditional form of punishment for criminal conduct. United States v. Devenport, 131 F.3d 604, 610 (7th Cir. 1997). Though $100 is not as great an amount as most fines today, the statute authorizes an annual assessment of $100. Given Plaintiffs’ life expectancies, the cumulative amount assessed is likely to well exceed $2000. Moreover, as small an amount as $50 has been found sufficient to trigger the ex post facto prohibition. See United State v. Jones, 489 F.3d 243, 255 (6th Cir. 2007) (holding that application of increase in special assessment from $50 to $100 to criminal offense that preceded increase violated ex post facto clause).
Several courts have upheld the assessment of fees for services provided defendants while on probation or parole for crimes committed before the effective date of the statute authorizing the assessment. See, e.g., Taylor v. State of Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996) (holding that $15 monthly fee upon prisoners to defray the costs of their imprisonment was not punitive and thus not ex post facto). But it is one thing to impose a fee on a defendant for services provided to him or on his behalf while he is on supervision or in custody. It is altogether a different matter to impose an annual fee on offenders who have been discharged from their sentences so as to offset the cost of providing a service that is intended solely for the benefit of the general public. The fact that Plaintiffs rely on the federal equal protection standard described in Smith v. City of3 Chicago, 457 F.3d 643, 650–51 (2006) and the Wisconsin standard applied in Nankin v. Shorewood, 2001 WI 92, 245 Wis.3d 86, 630 N.W.2d 141, 2001 Wis. LEXIS 426 (2001). (See Pl. Br. In Supp., ECF No. 27 at 29.) 18 the assessments are used to offset the costs of monitoring the offenders does not eliminate the penal aspect of the assessment. All funds taken in by the Government in the form of fines are used to pay for or off-set something. To be sure, the State has a non-punitive purpose for wanting to collect money for such a purpose, but to single out only individuals who have prior convictions for sexual assaults as the sole source of such funds can only be seen as punitive. Since no such fee was authorized at the time of Plaintiffs’ convictions, imposing it on them at this point would appear to violate the ex post facto clause. Dobbert v. Florida, 432 U.S. 282, 292 (1977) (noting that a “statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”) (internal quotations omitted). Absent any argument from Defendants to the contrary, I conclude that the fee element of the Wisconsin law, as applied to Plaintiffs whose convictions preceded the enactment of the statute authorizing the fee, is unconstitutional.
Committee votes 13-0 against bill repeal sex offender registration fee
Our bill to repeal the $50 annual sex offender registration fee goes to the House floor this Wednesday with a unanimous committee vote against it. That vote took place before the John Doe ruling was available. Half a dozen registrants or their family members spoke with great emotion for the bill at its recent public hearing. They said it’s almost impossible for needy registrants to get to Concord without a car for a hearing to waive the fee. Or a loved one has to lose a day’s pay to drive them The paperwork is also cumbersome, and homeless registrants can never receive correspondence from state officials. The Department of Safety opposed the bill, saying indigent offenders can always ask not to pay it. Rep. Dick Marston’s House calendar blurb for HB 587 noted this appeal process. He also warned that “..repealing the fee would have resulted in virtually eliminating the registry, which would be a disservice to the citizens of NH.” We submitted testimony that the fee raises less than $100,000 per year toward the much greater cost of maintaining the list. Two Manchester officers work full time on enforcing it. State Police officials testified that they have seven staff assigned to the same job. In addition, many officers in towns and cities devote substantial effort to the registry. CCJR has been planning a federal challenge to the fee, and the recent John Doe decision may have bolstered its chances. Below is my written testimony on the bill.
CITIZENS FOR CRIMINAL JUSTICE REFORM
Testimony for HB 587 to repeal the sex offender registration fee
By Chris Dornin, founder, CCJR, 620-7946, cldornin@aol.com
The $50 annual sex offender registration violates fundamental property rights, according to successful lawsuits elsewhere in federal court. Those judicial rulings are pretty easy to understand. A person’s money is part of their property. And states have failed to prove the registry does anything to protect the public. The fee, which is surely a disproportionate tax and not a benefit to the payer, raises less than $100,000 a year from the group least able to afford it. The cost to administer the registry is prohibitive next to this paltry revenue. Incidentally, there are no public safety gains from the registry. Voters think it makes them safer. In fact, it endangers them. The cost of running the registry dwarfs the $55,000 in federal funds New Hampshire would lose if it scrapped the shaming roster entirely.
Manchester police have told me they assign two officers just to enforce the registry. You have heard testimony from the State Police that seven people work on it full time at their headquarters. The other towns have staff as well who meet four times a year with 61 percent of the registrants and twice a year with the rest. Police departments often send flyers to neighbors and schools when a registrant moves to town, an added and counterproductive cost. The resulting harassment often drives registrants away, where the same thing happens again as part of an inter-town competition to get to the bottom soonest. The authorities make surprise visits to the homes of registrants to verify their addresses. State and local police update their records every time registrants change their email addresses, chat room and eBay identifiers, web game avatars, apartments, homes, second homes, schools, jobs, cars, boats, motorcycles, mopeds, skimobiles, vacation trailers, airplanes and private helicopters. On average, half the addresses, license plates, and other data on the public registries in Florida, New York and Texas are wrong.
Not surprisingly, many ex-offenders give up on registering, even at risk of prosecution. Some think they can’t register without the $50 fee. The homeless registrants just disappear. Why bother to check in every day at a new 12-hour home? The good news is that New Hampshire has a pretty good accuracy rate. CCJR sent a fundraising letter to 500 registrants last year. Only 80 came back undeliverable. Thus the New Hampshire error rate is 16 percent. Unless, of course, you count all the homeless folks who have nothing left to to register.
New Hampshire is wide open to a federal suit. Passing this bill would prevent one. That federal brief is written, it uses the winning arguments in similar cases, and several John Doe plaintiffs have lined up to make the litigation a class action. If lawmakers defeat HB 587, a federal court might well order New Hampshire to refund all the money it has every collected from registrants, pay the legal fees for both parties, pony up the clerical costs to tabulate all those rebates, and buy the postage to mail checks to many rightful owners, wherever they live tonight, as opposed to tomorrow night.