WAYS TO GET OFF THE SEX OFFENDER REGISTRY

There have been two recent developments which potentially relieve an individual from a duty to register under Maine’s Sex Offender Registration Law, 34-A M.R.S.A § 11201 et seq. “SORNA”). On September 11, 2009, new legislation went into effect which allows certain individuals to apply to be deregistered. On December 22, 2009 Maine’s Law Court issued an opinion in the case of State v. Letalien, 2009 ME 130 which expanded the category of those not required to register. I. LEGISLATIVE CHANGES On September 11, 2009 the following legislation went into effect in response to legislative concerns about the ex post facto nature of the SORNA scheme: 1. Exception. Notwithstanding section 11202, a person sentenced on or after January 1, 1982 and prior to June 30, 1992 is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following: A. The person was finally discharged from the correctional system prior to September 1, 1998; B. The person's convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date; C. At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense; D. At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense; E. Subsequent to the commission of the offense, the person has not been convicted of a crime under Title 17 or Title 17-A in this State that is punishable by imprisonment for a term of one year or more; and F. Subsequent to the commission of the offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less. 2. Duty continues. A person's duty to register continues until the bureau determines that the documentation meets the requirements of this section and any rules adopted by the bureau. 3. Costs. A person who submits documentation under this section is responsible for the costs of any criminal history record checks required. 4. Restoration of registration status. The registration obligation of a person sentenced on or after January 1, 1982 and prior to June 30, 1992 that is discharged pursuant to this section is restored by any subsequent conviction for a crime described in subsection 1, paragraph E or F. 34-A M.R.S.A. § 11202-A One key difference between the relief from the duty to register in 34-A M.R.S.A. § 11202-A and the Law Court’s decision in Letalien, described below, is that the registrant must take affirmative actions to deregister. II. State v. Letalien On December 22, 2009 the Law Court issued an opinion in the matter of State v. Letalien, 2009 ME 130 which had significant impact in determining who is subject to registration. The Court specifically acknowledged the extensive legislative and judicial history of sex offense registration in Maine. The Court spent considerable time analyzing the ex post facto arguments against various forms of SORNA statutes which had been previously upheld in various U.S. Supreme Court and Maine Law Court decisions. The Law Court ultimately concluded in Letalien that Maine’s SORNA statute was unconstitutional as applied to certain defendants. The Court ultimately concluded that the SORNA statute was at least in part unconstitutional as an ex post facto law as applied to certain offenders: To summarize, we conclude: (1) For ex post facto purposes, SORNA of 1999 is properly evaluated on its face, and not in relation to how it has been applied against any individuals. Our suggestion to the contrary in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, is overruled. (2) The prohibition on ex post facto laws in the Maine Constitution, Me. Const. art. I, § 11, is coextensive with the corresponding prohibition in the United States Constitution, U.S. Const. art. I, § 10, cl. 1. (3) The retroactive application of the lifetime registration requirement and quarterly in-person verification procedures of SORNA of 1999 to offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of the duty as was permitted under those laws, is, by the clearest proof, punitive, and violates the Maine and United States Constitutions’ prohibitions against ex post facto laws. [¶64] Because the Legislature, in its upcoming session, may wish to consider revisions to SORNA of 1999 to address the registration of offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, we postpone the effective date of our mandate to March 31, 2010. See M.R. App. P. 14(c). State v. Letalien, 2009 ME 130 (emphasis added).