by Douglas Ankney

The Supreme Court of Montana held that retroactive application of Montana’s Sexual or Violent Offender Registration Act (“SVORA”), as amended beginning in 2007, violates the ex post facto clause in Article II, Section 31, of the Montana Constitution.

Richard D. Hinman was convicted in 1994 of sexual assault. He served and discharged his criminal sentence of 10 years in July 2000. At the time of his conviction, the SVORA required Hinman to verify his address with county law enforcement for 10 years, with annual verification by mail and timely notification of any change of address. 1989 Mont. Laws ch. 293. In 2019, Hinman was charged with failing to register under the version of the SVORA currently in effect. He argued the charges should be dismissed because the amended SVORA requirements made the statute an unconstitutional ex post facto punishment for his earlier crime. The district court denied Hinman’s motion, and he pleaded guilty while reserving his right to appeal.

Beginning in 1995, the SVORA was repeatedly amended with additional requirements imposed upon registrants: photographs and fingerprints are to be supplied at initial registration; the 10-year expiration now applies only if the registrant does not re-offend during that period; and the names of the registrants are made public.

The 1997 amendments to the SVORA added a tiered system of Level 1, Level 2, and Level 3 offenders. This level determines the amount of information about registrants that will be released to the public. The amendments also removed the 10-year expiration of the duty to register, required registrants to petition the district court for removal after 10 years, and made the SVORA retroactive to anyone convicted of a sexual offense after 1989. Mont. Laws ch. 375. Registrants’ addresses became public information accessible on the internet. 2001 Mont. Laws ch. 222, section 2.

In 2003, the Montana Supreme Court held that since the intent and effect of the SVORA was not punitive, but was a “regulatory scheme collecting and disseminating information meant to reduce recidivism and help the public mitigate potential harms,” retroactive application did not violate the ex post facto clause. State v. Mount, 78 P.3d 829 (Mont. 2003).

The Mount decision closely paralleled and tracked Smith v. Doe, 538 U.S. 84 (2003), in which the U.S. Supreme Court held that Alaska’s sex offender registration law could be applied retroactively without violating the U.S. Constitution’s ex post facto clause because the law was not considered punitive. To determine whether the effect of the SVORA was punitive, the Mount Court applied the seven-factor test from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963): “(1) whether the law imposes an affirmative restraint or disability; (2) the historical treatment of the law; (3) a finding of scienter; (4) whether the law was traditionally aimed at punishment; (5) whether the law applies to criminal behavior; (6) whether the law has a nonpunitive purpose; and (7) the excessiveness of the law in application.”

The Mount Court found that the SVORA did not impose an “affirmative restraint or disability” on registrants; rather, it merely increased the accessibility of criminal record information that was already made public and imposed a non-onerous requirement to periodically verify address information.

In the present case, the Court contrasted Mount’s analysis of the SVORA as it existed in 2003 with the SVORA of today, as amended numerous times beginning in 2007. The Mount Court determined there was no affirmative restraint because, after initial registration, the registrants merely mailed a form to law enforcement annually. In contrast, the current SVORA requires registrants to appear in person at local law enforcement for periodic verification and new photography (every 90 days for Level 3 offenders; six months for Level 2; and annually for Level 1). Additionally, the current SVORA requires registrants to appear in person within three days of a change of address, employment, or school. Failure to comply results in criminal charges. There are now restrictions on where registrants may live. “If a registrant leaves the county for more than ten days, he or she must register in person in whatever county they are in on the eleventh day in addition to registering in any other county they may enter and then re-register in person in their county of residence when they return.” The Court found these requirements akin to being placed on permanent probation.

With regards to “disability,” the Mount Court determined that any social stigma or collateral consequences resulted from the conviction itself, and the criminal court records publicly available and associated consequences were not a result of the registry. But the current SVORA make information available to the public that is not available from the criminal records, e.g., updated photographs, vehicle descriptions, and license plate numbers. And laws have since been passed that create consequences for simply being on a sex offender registry (e.g., 22 U.S.C. § 212b “requires the U.S. State Department to affix conspicuous identifiers to passports of people belonging to sex offender registries”; 24 C.F.R. 982.553(a)(2) “prohibit[s] public housing agencies from admitting into their programs anyone subject to a lifetime sex offender registration requirement”).

The “nonpunitive” determination in Mount considered the burdens of the SVORA registry to not be excessive in relation to its stated purpose of “reducing recidivism and help the public mitigate potential harms.” But today’s SVORA requires registrants to “supply law enforcement with DNA samples, driver’s license numbers, vehicle information, email addresses, and social media screen names.…”

Finally, the Court observed that “a growing body of research into the effectiveness of sex offender registries has cast significant doubt on their capacity to prevent recidivism.” It further noted that “a number of studies indicate that registration requirements have no statistically significant effect on reducing recidivism rates among offenders.” People ex rel. T.B., 489 P.3d 752 (Colo. 2021). “Sex offenders are less likely than other offenders to be rearrested for any crime.” Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005 - 2014), Mariel Alper & Matthew R. Durose, U.S. Dep’t of Justice (May 2019).

The Court reasoned: “On balance, faced with the unclear efficacy of the registry at achieving its aims and the greatly broadened scope of its burdens, we can no longer conclude that SVORA’s expanded collection and dissemination of information is narrowly tailored to the scheme’s public protective purpose. The present SVORA structure clearly points toward recognizing the Act as punitive in effect.” Thus, the Court ruled “that the SVORA structure in place since 2007 is punitive and therefore cannot apply retroactively under the ex post facto clause.”

Accordingly, the Court reversed the district court’s order denying Hinman’s motion to dismiss and dismissed the charge against Hinman “because SVORA’s retroactive application to Hinman violated the ex post facto clause in Article II, Section 31, of the Montana Constitution.” See: State v. Hinman, 2023 MT 116 (Mont. 2023).  

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