Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Lifetime Registration of Low-level Sex Offenders found Excessive, Unconstitutional in New Hampshire

The New Hampshire Supreme Court held in February 2015 that requiring lifetime registration without review of the risk that low-level sex offenders present to the public is unconstitutional. The Court ordered that such offenders must be provided an initial risk hearing and periodic opportunities for further hearings if they are initially found to pose a risk.

The petitioner, John Doe, was convicted in 1987 of two counts of aggravated felonious sexual assault. He served a prison sentence, completed sex counseling and was released from probation in 1990. He became subject to registration as a sex offender on January 1, 1994, but did not become aware of that requirement until 2004.

After he registered, he endured the stigma and repercussions that accompany being on the sex offender registry. Neighbors of his son petitioned the landlord to prevent Doe from moving in with his son, and he was denied public housing. Doe sought a declaratory judgment that the registration law was unconstitutional as applied to him because it violated the ex post facto and due process clauses. The trial court denied his petition.

In an appeal in which PLN joined in an amicus brief, Doe pressed his claims. The state Supreme Court noted that since the registration law went into effect, it had been amended several times, incrementally increasing the burdens and intrusiveness of the registration requirements with each amendment.

The Court first examined whether the law was regulatory or punitive in nature. It held “the legislature intended the act to be regulatory,” but also found “some indications of a punitive intent, especially when considering the more recent amendments.” In the end, the Court could not “conclude the legislature intended the act to be punitive.”

It then turned to examine whether the statute’s effects were punitive. To make that determination, the Court utilized the seven-prong test in Kennedy vs. Mendoza-Martinez, 372 U.S. 144 (1963).

That analysis led the Supreme Court to conclude that while there is a regulatory purpose underlying the statute, as currently constituted it is excessive when compared to the purpose and past versions of the law.

Specifically, the Court held that requiring “all tier II and tier III offenders be registered for life without regard to whether they pose a current risk to the public” was excessive. As such, the statute had a punitive effect on Doe. It was this provision alone that led the Court to its conclusion that a risk assessment hearing was required.

Therefore, the Supreme Court ordered the trial court to hold a hearing to determine whether Doe “poses a risk to justify continued registration,” until the legislature establishes alternative procedures for initial and periodic hearings to make that determination. This, the Court held, would remedy the ex post facto violation inherent in the law. The Court further held that Doe had received all the process he was due with respect to being subject to the registration statute during his criminal case proceedings. See: Doe v. State of New Hampshire, 167 N.H. 382, 111 A.3d 1077 (N.H. 2015). 

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

Doe v. State of New Hampshire

Kennedy vs. Mendoza-Martinez