In a victory for fundamental fairness, the New Hampshire Supreme Court held today that New Hampshire’s law requiring the registration of certain criminal offenders is unconstitutional as applied to an ACLU client because the law retroactively imposes lifetime restrictions on individuals who were convicted before these lifetime restrictions were enacted. The case was brought by the American Civil Liberties Union of New Hampshire (“ACLU”), and the petitioner was represented by William Chapman of Orr & Reno, P.A. and Gilles Bissonnette and Barbara Keshen of the ACLU.
The Court held that Chapter 651-B’s retroactive, lifetime registration requirements were “punitive in effect” and therefore unconstitutional as applied to the petitioner. As the Court explained, “the act as currently constituted is excessive” and certain aspects of the act “serve no readily-apparent non-punitive purpose.” The Court added, “[w]e find the lifetime duration of the registry in particular to be excessive, when considered with all of the act’s other impositions. If in fact there is no meaningful risk to the public, then the imposition of such requirements becomes wholly punitive.” Thus, the Court concluded: “The statute has changed dramatically since  to the point where the punitive effects are no longer ‘de minimus.’ No one amendment or provision [since 1994] is determinative, but the aggregate effects of the statute lead us to our decision. Although there is a presumption in favor of a statute’s constitutionality, here this presumption has been overcome because we are convinced that the punitive effects clearly outweigh the regulatory intent of the act.”
The Court went on to specifically explain how New Hampshire’s registration statute negatively impacts lifetime registrants and is punitive. For example, the Court noted that the broad public dissemination of registrants’ personal information “stigmatizes registrants and can lead to further harm, such as ‘vigilante justice.’” The Court added that lifetime quarterly in-person reporting, as well as “the frequent reporting and checks by the authorities at the [petitioner’s] residence do entail a level of oversight by the State to which few citizens,” including other convicted individuals, “are subject.” Thus, the Court explained: “For the [petitioner] these requirements will continue for the rest of his life. Notably, there is no way for the [petitioner] to be relieved of the requirements, even though he has not reoffended in 30 years, has completed counseling, was discharged from probation early, and is currently permanently disabled.”
The remedy imposed by the Court for this constitutional violation is for the petitioner to be “promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he is permitted to demonstrate that he no longer poses a risk sufficient to justify continued registration.” In short, a hearing will be provided to determine if he is or is not a danger to the public.
“This case is really about fundamental fairness,” said Gilles Bissonnette, staff attorney for the ACLU who represented the petitioner in this case. “A punitive law cannot be applied to a person retroactively, and this has been a fundamental right since the New Hampshire Constitution was drafted. After a person is convicted, the state cannot add on further punishment years later, especially without notice and an opportunity to be heard. To do so is unfair. Today, the Court courageously reaffirmed that this principle applies to all citizens.”
“There is nothing fair about how New Hampshire’s registration law has been applied to our client,” said Bissonnette. “In 1993, our client was a free man having served his debt to society. In 1994, however, he was, without notice, decreed a sexual offender under New Hampshire law and made subject to onerous lifetime restrictions that he couldn’t have foreseen when he was convicted in 1987 and that, if disregarded, could lead to substantial criminal penalties. Here, the Court recognized that fundamental fairness requires that the petitioner should at least be given the opportunity to show he poses no threat to society.”