The Lawletter Vol 39 No 12
Typically, the courts find that the retroactive application of sex offender registration statutes does not violate the Ex Post Facto Clause, because such statutes are found to be nonpunitive. See, e.g., Smith v. Doe, 538 U.S. 84 (2003). Recently, however, the Supreme Judicial Court of Maine held that particular amended provisions of the Maine Sex Offender Registration and Notification Act ("SORNA"), as applied to Doe, the registrant in the case before it, Doe v. Anderson, 2015 ME 3, 2015 WL 149030 (not yet released for publication), were punitive and that their retroactive application to Doe violated the bill of attainder clause in the state constitution. The amended statutory provisions at issue in Doe were a retroactively added list of offenses to which SORNA applied, including the offense for which the registrant had been convicted, and an amendment that changed the triggering event for a duty to register: That duty no longer required a court determination but only a simple notification from the court or one of the named agencies.
Applying the seven factors articulated by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), as "guideposts," the same analysis Maine uses under the Ex Post Facto Clause, the court in Doe determined that the retroactive application of SORNA's registration requirement to Doe was punitive. The court found that the amendments caused Doe's original sentence to be modified and enhanced and that retroactive imposition of SORNA registration requirements on Doe was a sanction historically regarded as punishment. Having considered all of the Mendoza-Martinez factors, the court concluded that retroactive application of SORNA's registration requirement to Doe was punitive in effect.
In addition, the court found that the duty to comply with SORNA had been imposed on Doe without a judicial trial (another requirement for a bill of attainder) because at the time Doe was sentenced, his crime was not deemed to be a sex offense and, thus, there was no judicial determination that Doe was a sex offender and no judicial order incorporating the registration obligation into his criminal sentence. Finally, as to the other requirement for a bill of attainder, the court found that the SORNA amendment in question may have targeted a specific group based on its members' prior conduct. This requirement, however, was not addressed by the trial court, because it had concluded that SORNA was not punitive. The appellate court therefore remanded the matter for further consideration on this issue.