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Offender Registration Consequences, Not Penal, Court Rules

Friday, September 1, 2017  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

Dilatory attendance to the requirements of registration as a sex offender sent a man back to jail based on statements he made while attempting to comply with the law. His self-incriminatory statements were not protected by the Fifth Amendment because the predatory-offender-registration statute is not a penal statute, the Court of Appeals ruled Aug. 28 in State v. LaFountain, a case of first impression.

The defendant had a history of difficulty in complying with his release conditions and was convicted of felony failure to register on Oct.15, 2015, and received a stayed sentence. On Nov. 17 of that year, he attempted to register in Preston, Minnesota.  At that time, records indicated that his noncompliance had been referred to the county attorney.

The state charged the defendant with violation of the registration statute, and the defendant asked the court to suppress statements he had made on Nov. 17, including a statement that he knew he was supposed to change his address five days before moving.  The court refused to suppress the statements and convicted him of failure to register. He was sentenced to the presumptive 30 months incarceration.

“He was trying to do the right thing,” his attorney, Jennifer Workman Jesness, said of the defendant.  The registration requirements are difficult to comply with and are frequently unmet, she said.

Noting that offenders often have difficulty finding the employment and/or housing they are required to report, she said, “It’s like they cut off your feet and tell you to walk a mile.”

It’s frustrating when defendants who are trying to comply are not given a chance, she said. “This law doesn’t have any compassion.”

Fillmore County Attorney Brett Corson could not be reached for comment.

Only in criminal cases

The important question, said the court in an opinion drafted by Judge Lucinda Jesson, is whether the predatory-offender-registration statute is penal in nature, and the court concluded that it is not. Instead, it is civil and regulatory because it does not have the fundamental attributes of punishment the U.S. Supreme Court set out in Kennedy v. Mendoza-Martinez in 1964.

It is a rather odd conclusion, said Jesness, a state appellate public defender, especially when the registration requirement is set out in the criminal code.  “A lay person could not understand that it’s not penal,” she said.  The registration requirement, Minn. Stat. sec. 243.166, is within Chapter 243, which delineates the powers of the corrections department.

In Mendoza-Martinez, the court established seven factors for assessing whether a law is penal or civil. They are, [1] whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Based on the foregoing factors and the case law, the court determined that the registration statute is not punitive.  It does not directly involve confinement, is not aimed at retribution and does not attempt to punish so much as protect the public, Jesson wrote.

“We recognize the serious collateral consequences of registration, which may affect an offender’s ability to relocate, obtain employment, and other life events. (Cite omitted.) But these consequences do not rise to the level of concrete physical restraint,” the court continued.

The court declined to follow the 2007 Minnesota Supreme Court decision in State v. Jones, which involved prosecution of a tribal member for failure to register on the member’s reservation. Within the context of Public Law 280, which authorizes only limited state civil jurisdiction, the court said the registration was criminal, but it did not follow the Mendoza-Martinez  factors.

“We recognize that registration and its continuing reporting requirements may in some cases operate as a sanction and as a deterrent to future criminal behavior, one of the traditional aims of punishment. (Cite omitted.) But although the possibility of prosecution exists depending upon what information is disclosed, ‘under our holdings, the mere possibility of incrimination is insufficient to defeat … strong policies in favor of … disclosure. (Cite omitted.) Given the important public policy behind the predatory-offender registration statute, we conclude it is not a penal statute, and it does not implicate the Fifth Amendment privilege against self-incrimination,” the court concluded.

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