11-14-2007 Maine
Fearful of losing his job and other forms of retribution, a Biddeford man known only as John Doe Jr. is fighting to keep his name off the sex offender registry under Maine’s Sex Offender Registration and Notification Act.
Doe Jr. is challenging the constitutionality of a 2005 amendment to the registration act that requires anyone convicted of a sex offense after Jan. 1, 1982 to register. He is arguing that the amendment is unconstitutional because it adds additional punishment for a crime for which he has already served time in jail.
Doe Jr. pled guilty to a sex offense in 1986 – six years before Maine enacted its first sex offender registration requirement. He was notified last month, for the first time, that he would be required to register as a sex offender.
In addition to his lawsuit, Doe Jr. is also seeking an injunction against local and state law enforcement officials to prohibit them from publishing his name or arresting or prosecuting him for failing to register until his case his decided.
Lawmakers are currently struggling with how to balance the need to keep the public safe and informed, while also recognizing a convicted sex offender's right to a normal life after a criminal penalty has been imposed. The issue of providing sex offender information to the public has taken on urgency since two convicted sex offenders, who were listed on the registry, were murdered several years ago.
When the Legislature convenes in January it will take up 26 bills dealing with sex offenders. The bills range from restricting residency to what Web sites a sex offender should be prohibited from accessing to reclassifying sex crimes. Meanwhile, many local communities – such as Westbrook and Waterboro – have passed restrictions on where a convicted sex offender can locate within town lines.
Under state law, a sex offender convicted as of 1982 must register with each law enforcement agency where they live, work or attend school. A state-sponsored Web site also lists every registered sex offender by name – including any aliases – along with the registrant’s date of birth, workplace, mailing address, physical address, gender, race, height, weight, and eye color. A photo is also posted.
A lifetime registrant, someone who was convicted of a sexually violent offense or who has been convicted of a second offense, must also re-register with law enforcement officials every 90 days. In addition, a lifetime registrant must provide an updated photo and fingerprints every three months.
Saco attorney Eric Cote is representing Doe Jr. and said it’s unfair to his client that the state changed the rules after Doe Jr. pled guilty and served time.
“He served his time and did probation and counseling – the whole deal. You can’t change the deal after the penalty has already been imposed,” Cote said in an interview. In addition to being afraid of losing his job, Doe Jr. is afraid other action will be taken against him if he is forced to register as a sex offender.
“He’s afraid for his safety. I mean two men were killed in Maine just because they were on the sex offender registry," said Cote. "Requiring my client to register goes beyond protecting the public.”
“When a sex offender goes on the registry they have to list their employer’s name and address. How many employers want their name listed on the Internet in connection with the sex offender registry?” Cote asked.
Cote said his client is 59 and has worked in the construction industry for the past 40 years. He currently works as a mason and has no other skills and little education.
Cote would not allow the Sun Chronicle to speak directly with his client. He said Doe Jr. pled guilty to gross sexual misconduct with a minor 21 years ago and if forced to go on the registry, Doe Jr. would be a lifetime registrant.
In September, the Maine Supreme Judicial Court (Law Court) weighed in on the issue of whether the retroactive clause requiring those convicted of sex offenses 23 years ago to register is unconstitutional. The court made no determination, but remanded a Kennebec County Superior Court case, which is very similar to Doe Jr.’s case in Biddeford, back for further “factual development.”
The Law Court said the record from the Kennebec County case did not have enough information for it to decide whether the retroactive clause was unconstitutional or not. But the majority of the court said, “The fact that a sex offender never has the ability to escape the registration requirements . . . strikes us as having the capability to be excessive and as diverging from the purpose of protecting the public.”
The Law Court also said the registrant in the Kennebec County case should have the opportunity to prove, if he can, that the sex offender registration act is excessive in relationship to the registry's goal "of protecting the public from potentially dangerous registrants.”
Although the Law Court did not find in favor of the sex offender from Kennebec County, Cote is hanging his case on what the court said in its 39-page opinion, which was published on Sept. 25.
Cote is hoping that the uncertainty over whether the retroactive clause is constitutional will keep his client from having to register and out of jail until Doe Jr.’s case is decided.
Under the federal constitution, any statute that contains “manifestly unjust and oppressive retroactive effects” is unconstitutional. The argument Cote is making on behalf of Doe Jr. is that the retroactive clause of the sex offender registry in Maine meets both requirements.
Adding to the questions raised by the majority of the Law Court, two justices wrote a separate opinion. Their opinion states that any civil law – in this case the sex offender registration act – that can only be seen as having a "retributive or deterrent" purpose, is unconstitutional because it serves as further punishment for a crime for which the penalty has already been paid.
The two justices went on to say that, “Being branded a sex offender in a community indisputably has ostracizing effects, including social isolation, difficulty finding employment, and being targeted for harassment, violence and even murder.”
James Mitchell, the attorney in the Kennebec County case, said, “The reality is that going on the registry is very destructive of a person’s life.” His client, who has since registered, was afraid he would lose his job, his wife would leave him, his neighbors would try to get him to leave his home and that he could be in danger of physical harm if he was forced to register.
Mitchell declined to say whether any of these things did occur, but said most of the convicted sex offenders who call on him for legal counsel do end up losing their jobs when they are forced to register on the sex offender registry.
“What this is all about,” Mitchell said, “is the law’s inability to recognize redemption and rehabilitation. Your address is published so people can go throw eggs at your house, or worse.”
Mitchell said many convicted sex offenders, who are now getting letters from the state saying they must register, have done what they were told to do to make themselves better.
“Now we have people saying, ‘We don’t care what you’ve done. You’re an outlaw and a danger,’” he said.
Mitchell knows not every convicted sex offender is rehabilitated, but argued that the registry makes no distinction. Both he and the Maine Supreme Court justices are also concerned that, since 2001, there’s no way to get off the registry for good behavior or extraordinary circumstances.
Biddeford Police Chief Roger Beaupre could not be reached before deadline. But Saco Police Chief Brad Paul said he is aware the sex offender registry has come under scrutiny lately and he welcomes lawmakers’ attempts to make the registration act more fair and balanced.
“We need to balance the rights of the public to be informed of the potential risk with allowing people to reintegrate into society,” he said.
Although Paul is sympathetic to Doe Jr.’s situation, he said the law enforcement community must follow the law as it’s currently written. He said while the Law Court opinion muddies the waters somewhat, he still must arrest people for failing to register on the sex offender registry. ..more..
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