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Governor Signs Emergency Sex Offender Bill Into Law

Governor Baldacci signed into law LD 1822 which makes changes to sex offender registration in emergency legislation. A summary of the new legislation follows. For information on Zerillo Law, LLC's practice or sex crimes, visit www.getzerillo.com.

SUMMARY

On December 22, 2009, the Maine Law Court issued its decision in State v. Letalien, 2009 ME 130. The Law Court held that "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 ... an unconstitutional ex post facto law...." The Law Court stayed the mandate of the decision until March 31, 2010 in order to provide the Legislature the opportunity to deal with the issue. This bill of the Joint Standing Committee on Criminal Justice and Public Safety responds to the constitutional concern raised in Letalien in 2 ways.

First, it amends the in-person verification provisions to conform with those of Alaska that were found constitutional by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003). Maine's ex post facto clause is interpreted consistently with the United States Constitution, so this bill provides for verification for persons retroactively required to register as lifetime registrants that is consistent with the Alaska law found constitutional in Smith v. Doe. In particular, the bill amends the verification of registry information for persons sentenced on or after January 1, 1982 and prior to September 18, 1999. For 10-year registrants sentenced during that time period, the Department of Public Safety, State Bureau of Identification shall verify the registration information in writing as provided by the bureau on each anniversary of the registrant's initial registration date and once every 5 years in person. For lifetime registrants sentenced in that time period, the bureau shall verify the registration information in writing as provided by the bureau every 90 days after that lifetime registrant's initial registration date and once every 5 years in person. The bill also provides that if there is a reason to believe the offender's appearance has changed significantly, the law enforcement agency or the bureau may instruct the offender in writing to appear in person at the registration agency with a current photograph or to allow a photograph to be taken or, if authorized in writing by the law enforcement agency or the bureau, to submit a new photograph without appearing in person.

Second, the bill expands the provisions to allow certain registrants to be relieved of their duty to register on application and proof of legislatively established factors. An additional waiver scheme that authorized registrants to petition the court for relief from the duty to register was not included in the bill at this juncture due to a substantial fiscal note from the judicial branch, but may be considered again in the next legislative session.

Specifically, the bill expands the existing exception that was enacted pursuant to Public Law 2009, chapter 365 to allow the opportunity for additional registrants to provide documentation to the State Bureau of Identification to determine if they qualify for relief from the duty to register. First, it allows persons sentenced in Maine on or after June 30, 1992 and prior to September 18, 1999 who were finally discharged from the correctional system at least 10 years prior to applying for relief and who meet the other existing factors of the Maine Revised Statutes, Title 34A, section 11202A to apply. Second, it allows persons sentenced in Maine on or after September 18, 1999 and prior to July 30, 2004 for a violation of former Title 17A, section 252 who were finally discharged at least 10 years prior to applying for relief and who meet the other existing factors of Title 34A, section 11202A to apply. The former crime of rape was added to the list of registerable offenses pursuant to Public Law 2003, chapter 711, so people convicted of rape prior to that law, which became effective on July 30, 2004, were also retroactively made lifetime registrants. Finally, it allows persons sentenced in another jurisdiction who were finally discharged from the correctional system at least 10 years prior to applying for relief, who have been in full compliance with the registration duties as a resident required under Title 34A, section 11202A, subsection 2 since September 12, 2009 and who meet the other existing criteria of Title 34A, section 11202A to apply. The intent of the amendments to Title 34A, section 11202A is to make the relief process available to Maine residents with out-of-state convictions, but not to encourage convicted offenders to move to Maine solely to evade registration requirements in their home states or in Maine. Accordingly, the legislation sets a date of September 12, 2009, the original effective date of this statutory exception, as the deadline by which persons with out-of-state convictions that require registration must be residents in compliance with Maine's Sex Offender Registration and Notification Act of 1999 in order to qualify. This reduces the likelihood that persons will move to Maine primarily to take advantage of the exception. It also reduces the likelihood of factual disputes over residency status, as the determination depends on registration and verification paperwork that the registrant must already have filed with the State Bureau of Identification as part of the registration and verification process, and in which the registrant would have identified his or her own status. It decreases the burden on both the State Bureau of Identification and the applicant regarding obtaining documentation to establish residency for the purposes of the exception. Finally, it significantly reduces the likelihood of applicants fabricating evidence of residency for the purposes of the exception.

The bill also changes the calculation of the 10-year registrant start times in Title 34A, section 11225A to make consistent the calculation of the 10-year registration period imposed retroactively for 10-year registrants sentenced January 1, 1982 to June 30, 1992 with that for 10-year registrants sentenced June 30, 1992 to September 17, 1999.

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