Young v. State

BELL, Chief Judge, dissents, in which ELDRIDGE, J. joins. I disagree with the majority’s conclusion that Maryland’s sex offender registration statute does not constitute punishment. The statute is, first of all, much more than a registration statute; rather it also contains broad, virtually unlimited, community notification provisions. Specifically, and particularly in light of its community notification provisions, I am persuaded that the punitive effect of the statute outweighs, and negates, any remedial purpose it has.

I would hold, therefore, that registration pursuant to the sex offender registration statute constitutes punishment and, further, because ⁷²¹ the proof required for the court to order a defendant to register does not fall within the exception, established by Apprendi v. New Jersey, 530 U.S. 466, 487-88 , 120 S.Ct. 2348, 2361-62 , 147 L.Ed.2d 435, 453-55 (2000), for the proof of the fact of prior conviction, that the relevant factual predicate to registration must be presented to a jury, which must make the determination beyond a reasonable doubt. Accordingly, I dissent. I. Jessie Lee Young, the petitioner, was convicted, pursuant to Md.Code Article 27, § 432 (1957, 1996 Repl.Vol., 2000 Supp.), 1 of transporting, for prostitution purposes, the victim in this case, who was under eighteen years old. A separate statute, Md.Code art. 27, § 792 (1957, 1996 Repl.Vol., 1998 Supp.), 2 requires defendants convicted of certain enumerated offenses, including § 432, and ordered by the court to do so, see § 792(a)(6)(vii), to register as sex offenders. § 792(c).

For his conviction, the petitioner was sentenced to ten years imprisonment, the maximum, with all but eight years suspended and five years supervised probation on release, a condition of ⁷²² which, consistent with the state’s request, was that he “register as a sexual offender.” 3 In Apprendi , the United States Supreme Court held that, under the Fourteenth Amendment to the United States Constitution, “ ‘any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” 530 U.S. at 476 , 120 S.Ct. at 2355 , 147 L.Ed.2d at 446 (quoting Jones v. United States, 526 U.S. 227, 243, n. 6 , 119 S.Ct. 1215 , 1224 n. 6, 143 L.Ed.2d 311 , 326 n. 6 (1999)). There, Apprendi pled guilty to two counts of second degree possession of a firearm for an unlawful purpose. 530 U.S. at 469 , 120 S.Ct. at 2351 , 147 L.Ed.2d at 442 . Under New Jersey’s “hate crimes” law, a trial court could impose an extended period of imprisonment if it found by a preponderance of the evidence that the defendant acted with the purpose to intimidate an individual or group based on an impermissible bias. Id. at 469-70 , 120 S.Ct. at 2351-52 , 147 L.Ed.2d at 442-43 .

Finding that the defendant acted out of racial bias, the trial court imposed a twelve year sentence, which was two years greater than the maximum for a second degree firearms possession offense. The Supreme Court reversed, basing its holding on the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment: “taken together, these rights indisputably entitle a criminal defendant to a ‘jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a ⁷²³ reasonable doubt.’ Id. at 476-77 , 120 S.Ct. at 2355-56 , 147 L.Ed.2d at 447 . The Court added: “If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not— at the moment the State is put to the proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached.” Id. at 484 , 120 S.Ct. at 2360 , 147 L.Ed.2d at 451 . Although denominated a Registration of Offender Statute, § 792 is a great deal more; it is, as well, a community notification statute and a very broad one, at that.

See § 792(g) and (j). As we have seen, an “offender” must register with his or her “supervising authority,” 4 if he or she violates one of the enumerated statutes and is ordered by the court to do so. See § 792(a)(6). 5 For an offender sentenced in this State, that means on or before the date of release, or sentence, when the sentence results in immediate release. See § 792(e)(l)(i). 6 An ⁷²⁴ offender must register annually for ten years, see § 792(d), each year signing and returning the verification form sent to him or her by the Department of public Safety and correctional Services (hereinafter “the Department”).

See § 792(h)(3). 7 The offender, like all registrants, is required to send the Department written notice of his or her change of residence, within 7 days of the change occurring. See § 792(c)(3). The registration statement shall be signed and dated and include the offender’s name, address, a description of the crime for which he or she was convicted, the date of the conviction, the jurisdiction in which the conviction occurred, a list of any aliases used, and the offender’s social security number. ' See § 792(e). 8 Besides the registration requirements, the statute also contains provisions for giving notice to certain agencies, persons and the public. The supervising authority must send a copy of the registration statement, the registrant’s fingerprints, and a photograph of the registrant to the local law enforcement ⁷²⁵ agency in the county or counties where the registrant will reside, work, or attend school.

See § 792(f)(3). When the supervising authority is not a unit of the Department, it also must, within that five day period, send the registration statement to the Department, which is required to maintain a central registry. See § 792(h)(l)(i). The local law enforcement agency is then required, when the offender resides in a municipality that has a police department, to send the notice to the police department of the municipality. 9 Section 792(j) addresses, inter alia, to whom copies of a registrant statement may be sent. 10 The supervising authority must send a copy of the registration statement to the last known address of certain persons who have requested, in writing, notice about a specific registrant: the victim, or, if a minor, the victim’s parents or guardian; a witness who testified against the registrant in court proceedings; as well as “any individual specified in writing by the State’s Attorney.” ⁷²⁶ See § 792(3).

In addition, upon a request from an individual containing the name and address of the individual submitting the request and the reason for requesting the information, a local law enforcement agency shall send one copy of the registration statement of each child sexual offender and each sexually violent predator and may send a registration statement on file with the agency of registrants who are neither child sexual offenders or sexually violent predators. Moreover, “In addition to the notice required under subsection (g)(1)(h) of this section, the Department and a local law enforcement agency shall provide notice of a registration statement to any person that the Department or local law enforcement agency determines may serve to protect the public concerning a specific registrant if the Department or the agency determines that such notice is necessary to protect the public.” See § 792(7)(i). 11 Section 792(6) provides: “(6) The Department shall release registration statements or information concerning registration statements to the public and may post on the Internet a current listing of each registrant’s name, offense, and other identifying information, in accordance with regulations established by the Department.” As indicated, the petitioner was convicted of a violation of § 432, which carries a maximum sentence of ten years. He was ordered to register as a sexual offender as a condition of probation. There is, in addition, a separate statute prescribing registration by certain convicted persons under certain circumstances.

The question that has been asked and, thus, must be answered is whether that additional requirement of registration, whether as a condition of probation or pursuant to the statute, is punishment. If it is, it seems clear to me that the petitioner’s sentence has been enhanced and that, therefore, he was entitled to have the evidence on the basis of ⁷²⁷ which the registration decision was made evaluated by a jury under the Apprendi standard. 12 At the outset, the majority acknowledges that the court ordered registration as a condition of probation, but argues only that it was pursuant to § 792; it does not argue, as the trial court apparently believed, see n. 3, that the registration was consistent with its authority to fashion conditions of probation. That is not surprising, since conditions of probation clearly are punishment. See Spielman v. State, 298 Md. 602, 610 , 471 A.2d 730, 735 (1984) (“It hardly can be contended that one who has been ordered to pay restitution, as a condition of probation, and is subject to revocation of that probation for failure to make payment, has not received punishment.”).

The trial court also ordered that the petitioner obtain psychological treatment. Under the majority’s view, that also is not punishment, presumably because it is intended to be remedial. Turning to the statute, I do not take issue with the test the majority ultimately adopts, and applies, in this case, although the cases on the basis of which it was formulated arose in much different contexts. Indeed, I have found only one case directly on point, see People v. Marchand, 98 Cal.App.4th 1056 , 120 Cal.Rptr.2d 687 (2002) and it, following the Supreme Court of California’s lead, see People v. Castellanos, 21 Cal.4th 785 , 88 Cal.Rptr.2d 346 , 982 P.2d 211, 217 (1999), 13 as it had to, ⁷²⁸ applied a -version of the “intent-effects” test for evaluating whether an act is punitive or remedial, concluding that sex offender registration does not constitute punishment or penalty within the meaning of the United States Supreme Court’s decision in Apprendi under the due process clause of the Fourteenth Amendment.

Marchand, 98 Cal.App. 4th at 1065 , 120 Cal.Rptr.2d at 694 . The Supreme Court of California held in Castellanos that, for ex post facto purposes, sexual offender registration was not punishment. 88 Cal.Rptr.2d 346 , 982 P.2d at 218 . It is significant that neither court expressed an opinion as to the community notification provisions of the statute. Castellanos, 88 Cal.Rptr.2d 346 , 982 P.2d at 218, n. 6 (“It does not appear that defendant is subject to the public notification provisions of section 290, subdivisions (m) and (n), and section 290.4, and we express no opinion regarding the effect, if any, that application of those provisions would have upon our analysis.”); Marchand, 98 Cal.App.4th at 1062 , 120 Cal.Rptr.2d at 692 (“it does not appear defendant here is subject to the public notification provisions of the sex offender registration statutes....

Thus, we need not address defendant’s argument that sex offender registration constitutes punishment because it ‘obviously carries substantial societal stigma.’ ”) II. The majority asserts that “[n]umerous courts have discussed the issue of whether the registration and notification provisions of sex offender registration statutes ... constitute punishment,” 370 Md. 686, 697 , 806 A.2d 233, 239 (2002), concluding that “[t]he overwhelming body of this judicial precedent concludes that sex offender registration under these types of statutes is not punishment.” Id. at 697 , 806 A.2d at ⁷²⁹ 239 . This suggestion that there is a strong consensus on this issue is misleading. Although the numerous state statutes do share certain general characteristics, several aspects of their administration, their registration requirements, and, particularly, their community notiilcation provisions, vary considerably.

See generally Stephen R. McAllister, Megan’s Laws: Wise Public Policy or Ill-Considered Public Folly?, 7 Kan. J.L. & Pub. Pol’y 1, 17 (1998). For example, while some states limit disclosure to law enforcement, see, e.g., State v. Noble, 171 Ariz. 171 , 829 P.2d 1217, 1219 (1992)(At the time of registering, the person shall sign a statement in writing giving such information as required by the director of the department of public safety.

The sheriff shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to the criminal identification section within the department of public safety and the chief of police, if any, of the place where the person resides); State v. Costello, 138 N.H. 587 , 643 A.2d 531, 533 (1994) (The sexual offender reports his or her current address annually to local law enforcement agency, which forwards it to the State Police for entry in the law enforcement name search system and is held confidential within the law enforcement community, with local law enforcement agencies being notified when the offender or permit public disclosure only on the basis of an individualized assessment of the risk of recidivism.), see Artway v. Attorney of the State of New Jersey, 81 F.3d 1235, 1243-44 (3rd Cir.1996); see also Doe v. Pataki, 120 F.3d 1263, 1269-70 (2nd Cir.1997), or as necessary to protect the public concerning a specific registrant, e.g., Cutshall v. Sundquist, 193 F.3d 466, 469 (6th Cir.1999), others have posted all sex offenders’ information on the Internet. See, e. g., Doe v. Otte, 259 F.3d 979 (9th Cir.2001), cert. granted, - U.S.-, 122 S.Ct. 1062 , 151 L.Ed.2d 966 (2002). Because Maryland’s sex offender registration statute permits broad public disclosure but does not provide for an individualized risk assessment, the majority’s reliance on cases upholding more narrowly tailored statutes is misplaced. ⁷³⁰ Moreover, although many courts have determined that registration requirements and notification of law enforcement do not constitute punishment, far fewer have examined the closer issue of whether community notification does. See, e.g., Castellanos, supra, 88 Cal.Rptr.2d 346 , 982 P.2d at 218 ; Marchand, supra, 98 Cal.App.4th at 1062 , 120 Cal.Rptr.2d at 692 ; Artway, supra, 81 F.3d at 1248 ; Burr v. Snider, 234 F.3d 1052 (8th Cir.2000) (declining to rule, on habeas corpus, on the constitutionality of the community notification provision of the registration statute, the issue not having been raised or decided by the State court).

In fact, many of the decisions discussed by the majority predate the enactment of broad community notification provisions, which did not become widespread until the federal government expressly encouraged their adoption, or do not include analysis of the issue because the challenges brought were not yet ripe for consideration. In Artway , for example, cited by the majority, the United States Court of Appeals for the Third Circuit declined to consider whether the community notification provisions of New Jersey’s sex offender statute constituted punishment. See 81 F.3d at 1248 . Whether the registrant’s personal information would be publicly available depended on how he was classified under New Jersey’s “Registrant Risk Assessment Scale,” as well as on a future decision of the Prosecutor’s Office.

Id. The court reasoned that notification under the statute involved a contingency that rendered too speculative the prospect of hardship from the denial of review. Nonetheless, in discussing and, ultimately, upholding the statute’s registration requirements, the Artway court frequently drew a distinction between the registration requirements and the notification provisions, making clear that whether the registration information would be made publicly available was a significant factor in determining whether the statute was punitive. 14 ⁷³¹ Courts have been more likely to find the community notification provisions of a sexual offender registration statute punitive when those notification provisions permit, or mandate, broad public disclosure of registrant information. See, e.g., Kansas v. Myers, 260 Kan. 669 , 923 P.2d 1024 (1996), cert. denied, 521 U.S. 1118 , 117 S.Ct. 2508 , 138 L.Ed.2d 1012 (1997), is one of the earlier examples.

Under the Kansas Sex Offender Registration Act, the community notification provisions authorized public inspection of sex offender records at police departments and contained no affirmative restrictions on dissemination. Thus, it permitted newspapers or others to disseminate the information as broadly as they pleased. The Kansas Supreme Court held the community notification provisions of the Kansas statute had a punitive effect and, therefore, was an unconstitutional ex post facto law. In reaching that result, it applied the factors formulated in Kennedy v. ⁷³² Mendoza-Martinez, 372 U.S. 144 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963), whether: (1) the sanction involves an affirmative disability or restraint; (2) it historically has been regained as a punishment; (3) it requires a finding of scienter; (4) its operation will promote the traditional aims of punishment-retribution and deterrence; (5) the behavior to which it applies is already a crime; (6) it lacks an alternative purpose to which it rationally may be connected; and (7), the statute appears excessive in relation to an existing alternative.

Id., at 168-69 , 83 S.Ct. at 567-68 , 9 L.Ed.2d at 661 . As to the first factor, holding that the registration provisions did not constitute punishment, Myers, 260 Kan. at 695 , 923 P.2d 1024 , the court addressed the community notification provisions, concluding: “However, we must also consider the provision in K.S.A. 22-4909 that the registered information is open to public inspection in the sheriffs office. Although 22-4909 does not impose any affirmative dissemination requirements on the authorities, it imposes no restrictions on anyone who inspects the information. The information could be routinely published in the newspaper or otherwise voluntarily disseminated by anyone.

The practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment. We find that the KSORA public disclosure provision does impose an affirmative disability or restraint. Unrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism.” Id. at 695-96 , 923 P.2d 1024 . The court also determined that the statute promoted both retribution and deterrence, explaining: “Registration has an obvious deterrent effect.

A registered offender is more likely to think twice before committing another sex offense when the person knows that the local sheriff already has the offender’s name on a list. We acknowledge the statement in [United States v.] Ursery, [ 518 U.S. 267, 292 , 116 S.Ct. 2135, 2149 , 135 L.Ed.2d 549, ⁷³³ 570 (1996) ], that “the purpose of deterrence ... may serve civil as well as criminal goals.” The stigma that will accompany public exposure of the registered information could be viewed as a form of retribution. We find that the KSORA public disclosure provision may have both a deterrent and retributive effect. However, the nonpunitive purpose of the statute cannot be accomplished without informing the public that a sex offender is in its midst.

If the statute limited public disclosure to that necessary to protect the public, then its deterrent effect could be viewed as incidental to its nonpunitive purpose. Unlimited public access to the registry provides a deterrent or retributive effect that goes beyond such purpose.” Id. at 696, 923 P.2d 1024 . To the court, however, “the excessive scope of public disclosure of registered information” was the key factor in its determining that the community notification provisions were punitive. Id. at 696-97 , 923 P.2d 1024 .

Recalling the specter of “that most famous badge of punishment: the Scarlet Letter” id. at 697, 923 P.2d 1024 (quoting Artway, 81 F.3d at 1255 ,) in which it was observed: “There can be no outrage ... against our common nature, — whatever be the delinquencies of the individual, — no outrage more flagrant than to forbid the culprit to hide his face for shame; as it was the essence of this punishment to do,” (quoting Nathaniel Hawthorne, The Scarlet Letter 63-64 (Random House 1950)), it held: “For Myers, KSORA’s disclosure provision must be considered punishment. We hold that the legislative aim in the disclosure provision was not to punish and that retribution was not an intended purpose. However, we reason that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment. The unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety.” Id. at 699, 923 P.2d 1024 .

More recently, in Doe v. Otte, supra, the 9th Circuit found punitive the Alaska Sex Offender Registration Act. That stat ⁷³⁴ ute required convicted sex offenders to register with law enforcement authorities and authorized public disclosure of information in the sex offender registry. Implementing regulations provided that Alaska would, in all cases, post the information from the registry for public viewing in print or electronic form, so that it can be used by “any person” “for any purpose.” Alaska Admin. Code tit. 13, § 09.050 (a) (2000).

Thus, like the Kansas statute, the Alaska law allowed unrestricted public access to the registration information, regardless of risk, by providing for posting the sex offender’s name, physical description, street address, employer address, and conviction information, along with a color photograph, on the State’s Department of Public Safety website on the Internet. Applying the Mendozctr-Martinez test, the court held: “the effects of the specific provisions of the Alaska Act provide the ‘clearest proof that, notwithstanding the legislature’s non-punitive intent, the statute must be classified as punitive for Ex Post Facto Clause purposes. Four of the seven factors favor this result.[ 15 ] Two factors, particularly, demonstrate that the effect of this particular statute is to increase the penalty the law provided at the time Doe I and Doe II’s offenses were committed. First, there is the substantial disability- imposed by the Act.

The registration provisions, which require in-person registration at a local police station where registrants must provide detailed information four times each year for life in the case of some defendants, and annually for 15 years in