According to Trooper 1st Class Rebecca Eder-Linell, the unit commander for the New Hampshire Registration of Criminal Offenders, nearly 850 sex offenders that were convicted of crimes against children are currently eligible to be removed from the list after a ruling (PDF warning) by the state’s Supreme Court. That is nearly one-third of the nearly 2,800 people currently registered. Lawmakers in the state are not taking this lightly, and Senate Majority leader Jeb Bradley is pushing for immediate action.
Back in February, lawyers from the New Hampshire Civil Liberties Union, among others, successfully argued that ordering a man from Manchester to be registered as a sex offender for the rest of his life was unconstitutional.
The registry was created in 1994, seven years after the man had pled guilty to two counts of aggravated felonious sexual assault. This is important because one of the arguments put forward by his attorneys was that the State Constitution banned retrospective laws that are punitive. What this means is that no law can be made that punishes an act that occurred prior to the law being enacted.
This punitive point touches on the second argument put forward by the man’s attorneys – that it is so unduly burdensome that it is punitive by nature. Essentially, as the state continued to amend the requirements for the registry, following the law became an increased punishment.
The State Attorney General of New Hampshire argued that while it did require additional actions by the convicted, it did not increase the punishment. There were no new fines and no more additional time added to incarceration or probation. They also argued that the intentions of the legislature when they passed the laws related to the registry were for public protection, an interest that is worth more than the rights of the convicted.
The Supreme Court agreed with the NHCLU, saying that there was not only a "punitive effect", but it was also "excessive" to require lifetime registration. However, the justices did not go so far as to strike down the law entirely. Rather, they said that the man should be allowed to request a hearing, whether with a court or an administrative board with judicial review powers, in order to prove that he is no longer a danger to society. They also said that even if the man fails to prove that fact, he should be given a "reasonable opportunity" to have additional hearings while he is still required to be registered.
In accordance with the separation of powers, the Court asked either the Legislature or Department of Safety to use either a new law or a new regulation to set up the system required to hold such hearings. But that doesn’t mean people have to wait for one of the two to act. Until something is done on the legislative or executive side, the New Hampshire superior courts will hold these hearings for every single individual – man or woman – that benefits from this John Doe case.
Taking the reins on behalf of the legislative branch, Sen. Bradley was joined by Lou D'Allesandro, David Watters, and Janet Wall in submitting Legislative Service Request 2016-2861, requesting that a bill be drafted and put into law establishing the procedure the Supreme Court requested. According to Bradley, the group is working with the attorney general’s office as well as New Hampshire Coalition Against Domestic and Sexual Violence to draft something that ensures the voices of victims are heard.
Bradley stated "sometimes the court sends a message, if you will, with their decision for the Legislature to step in, and I think that’s the circumstance here." By ensuring the NHCADSV and the state’s prosecutors are part of the process, Bradley believes the legislature will "protect the victims" when creating the system that will allow some offenders to be removed from the list.
Trooper Eder-Linell has explained that there is a distinction between the publically available list and the list of everyone required to be registered. John Doe was a Tier-III offender, which was considered the most dangerous. Currently, lower-tier offenders are able to petition to be removed from the public list so long as they can prove it will help them rehabilitate and reintegrate into society. The ruling from the Supreme Court, however, made is such that anyone convicted before 1994, regardless of what tier they are, will be allowed to petition to be relieved of any registration requirements altogether.
The hope from the state as well as activists is that anyone who benefits from the Supreme Court ruling will be able to prove they are reformed. The fear that the NHCADSV has is that the wrong type of people will be the ones who are no longer required to register. Amanda Grady Sexton of the NHCADSV summarizes their position by stating that the Supreme Court ruling is "very harmful and counter to what we know of the rights victims have in the criminal justice system."
Sexton has yet to comment on the two offenders already removed from the list.
According to Cheshire County Attorney D. Chris McLaughlin, the first was a man who was convicted in 1989 of felonious sexual assault for having sex with his "too-young girlfriend." He was 19 and she was 16. In this case, the state did not object and the man’s name was removed from the registry.
In the second case, Sullivan County Attorney Marc Hathaway’s office filed an objection filed by a man under a pseudonym (like John Doe). This case "went back many years" and no one was able to locate the victim or notify the victim of the hearing. After being heard, the man’s requested was granted.
Attorney McLaughlin stated that the best way for this ruling to be implemented was for "standardized procedures" to be established. Courts would consider the relevant factors and decisions could be made objectively.
Attorney Hathaway stated that the reason his office objected to their petition was for a similar reason. Without procedures in place, he did not want "to assume that the defendant is not a risk." He continued, saying "it is the defendant’s burden to prove that he’s not a risk."
Regardless of whether someone is removed or not, Dr. Scott Hampton, the director of Ending the Violence in Dover, hopes that people remember "80 to 90 percent of sex offenses are committed by someone the victim knows."