Lead Opinion
Jessie Lee Young, petitioner, was ordered to register as a sexual offender after his conviction for transporting a sixteen-year-old girl for the purposes of prostitution. He challenges the registration requirement on the grounds that registration was an additional penalty that required its factual conditions precedent to be proven to a jury beyond a reasonable doubt. We granted certiorari primarily to decide whether Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 792 (current version at Maryland Code (1957, 2001 Repl.Vol.) § 11-701 et seq. of the Criminal Procedure Article),
We shall hold that Apprendi does not apply, because sex offender registration does not constitute punishment in the constitutional sense, as defined by the United States Supreme Court, and, therefore, the factual predicate finding by the trial court was not a fact that increased the penalty for the crime beyond the statutory maximum within the meaning of Apprendi.
I.
Jessica McGregor, a sixteen-year-old girl, met petitioner, a thirty-four-year-old man in Rochester, New York in the summer of 1999. At that time, after he told her that he ran an escort service and asked if she was interested in participating, she responded that she was. Petitioner then asked how old she was, and she stated that she was eighteen years old. Petitioner responded that he knew that she was lying, and she then said that she was seventeen years old. Petitioner instructed her that, if anyone asked, she should say that she was twenty-one.
The next evening, petitioner and Jessica discussed prostitution. Petitioner dressed Jessica as a prostitute, took her to a location known for prostitution, and gave her advice about prostitution, including instructions
During the first week of September 1999, petitioner and Jessica came to the metropolitan Washington, D.C. area. Jessica’s thirteen-year-old sister, Felicia Green, stayed with them in a motel in Laurel, Maryland. Felicia stayed in the motel room at night while petitioner took Jessica to work the streets in Washington. Early one morning, Jessica was arrested by an undercover police officer. At the police station, Jessica told an officer that Felicia was in the motel room and asked the police to retrieve her, which they did. Jessica told the police about petitioner, initially telling them that he was a friend of her family taking Jessica and Felicia to their mother, but later admitting that that was a lie, which she told because she did not want petitioner to get into trouble.
Petitioner was convicted by the jury of transporting a person for the purposes of prostitution in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 432 (repealed by 2001 Md. Laws 674, current version at Maryland Code (2001, 2001 Supp.) Article 27, § 428).
We granted certiorari to consider whether the statute requiring that certain criminal defendants register as sexual offenders is a punitive statute that imposes a sanction and triggers the right to a jury trial and the right to proof beyond a reasonable doubt under Apprendi, as well as to consider two evidentiary issues. See Young v. State,
II. Sexual Offender Registration and Community Notification Under § 792
Section 792 defines an “offender,” for the purposes of sexual offender registration, as, inter alia, an individual who is ordered by the court to register and who has been convicted of violating § 432, if the intended prostitute is under the age of eighteen years. See § 792(a)(6)(vii). The finding that a defendant qualifies as an offender subjects him or her to the registration requirements of the statute at the time of release. See § 792(a)(7).
In addition to registration requirements, the statute provides for notice to certain agencies and persons. The supervising authority must send a copy of the registration
The heart of petitioner’s argument is that the Supreme Court’s decision in Apprendi requires that, before a judge may order a defendant to register as a sexual offender or sexual predator, pursuant to § 792(a)(6)(vii), as a condition of probation in a criminal sentencing proceeding, a jury first must find beyond a reasonable doubt that the sex offense victim was under eighteen years of age. Petitioner argues that registration as a sexual offender is punitive.
The State contends that Apprendi applies only to statutory requirements that increase the maximum penalty to which a defendant is exposed and that, because the court suspended part of the maximum ten-year sentence permitted by § 432 in sentencing petitioner and granted probation, Apprendi is not applicable. Thus, when the maximum sentence is not enhanced, which it is not when the court suspends a portion of the sentence and grants probation, Apprendi is simply inapplicable. The State further argues that registration under the statute is not “punishment.”
In order to follow petitioner’s Apprendi argument, it is helpful to review the Supreme Court holding in that case. Apprendi pleaded guilty, under New Jersey law, to two counts of second degree possession of a firearm lor an unlawful purpose and one count of third degree possession of an antipersonnel bomb. See Apprendi,
The Apprendi Court began by tracing the common law development of the definition of elements of offenses for the purpose of the guarantees of due process and tidal by jury, which entitle a defendant to have every element of the crime charged proven to a jury beyond a reasonable doubt. The Court noted that “facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Id. at 483 n. 10,
In order to succeed in his challenge to the sex offender registration statute pursuant to Apprendi, petitioner must demonstrate three independent elements: (1) that registration under § 792 constitutes “punishment;” (2) that the factual findings predicate to the imposition of such “punishment” (in this case, that Jessica was under the age of eighteen years at the time that petitioner transported her for the purposes of prostitution) expose him to a greater penalty than the prescribed statutory maximum otherwise available; and (3) that such factual prerequisites involve facts “other than the fact of a prior conviction.” Petitioner fails on at least the first two such elements.
A. Punishment
The parties have not cited any case, nor has our research uncovered any, addressing the precise issue presented in this case, i.e., whether the sex offender registration statute violates due process based on the reasoning of Apprendi. Challenges to the sex offender registration and notification statutes have arisen in other contexts, however. Numerous courts have discussed the issue of whether the registration and notification provisions of sex offender registration statutes, as well as civil forfeiture and restitution provisions, constitute punishment for ex post facto, double jeopardy, bill of attainder, and cruel and unusual punishment purposes. The overwhelming body of this judicial precedent concludes that sex offender registration under these types of statutes is not punishment for those constitutional or statutory purposes.
We begin with De Veau v. Braisted,
In Kennedy v. Mendoza-Martinez,
In Austin v. United States,
In light of the historical understanding of forfeiture as punishment, the clear focus of the statutory provisions on the culpability of the owner, and the evidence that Congress understood the provisions as serving to deter and punish, the Court was unable to conclude that the forfeiture statutes served solely a remedial purpose and found that they were subject to the limitations of the Excessive Fines Clause. Id. at 621-22,
In Department of Revenue of Montana v. Kurth Ranch,
In California Department of Corrections, v. Morales,
The Court concluded that the California parole amendment did not change the available range of sentences for second degree murder and left unchanged the substantive formula for securing any reductions to the sentencing range; it simply altered the method to be followed in fixing a parole release date under identical substantive standards, and therefore did not constitute retroactive punishment. Id. at 507,
In State v. Jones,
We determined that the central question for the application of the Double Jeopardy Clause of the Fifth Amendment, as incorporated through the Fourteenth Amendment, was whether the application of administrative driver’s license suspension could “ ‘fairly’ be said only to serve a non-punitive purpose.” Id. at 250,
After examining the common understanding of license revocations, we found that license suspensions generally served remedial purposes based on the general purpose of licensing systems to protect the public from unscrupulous or unskilled operators who would otherwise engage in the licensed activity. Id. at 251,
In United States v. Ursery,
The Court outlined a two-part test for determining whether civil forfeitures were punitive for the purposes of the Double Jeopardy Clause: (1) whether Congress intended the proceedings to be criminal or civil and (2) whether the proceedings are so punitive in fact that, despite congressional intent, they could not legitimately be viewed as civil in nature. Id, at 288,
In Kansas v. Hendricks,
In determining whether confinement under the Kansas Act constituted punishment, the Court initially sought to ascertain, as a matter of statutory construction, whether the legislature had intended the Act to create civil or criminal proceedings, concluding, based on the placement of the Act within the probate (rather than criminal) code and its description of the Act as creating a civil commitment proceeding, that “[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.” Id. at 361,
The Court examined the Mendoza-Martinez factors in concluding that the Kansas
“Where the State has ‘disavowed any punitive intent’; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent.”
Id. at 368-69,
Appellate courts in other jurisdictions have concluded that similar sex offender registration and notification statutes do not constitute punishment. For example, in Artway v. Attorney General of State of New Jersey,
Applying the three-part test, the court determined, first, that the. legislative history of New Jersey’s sex offender registration law indicated that it was not intended to be punitive. See id. at 1264. Second, turning to the objective purpose inquiry, the court found that registration was reasonably related to the legitimate remedial purpose of law enforcement vigilance, that it was not historically understood as punishment, and that, because it historically was a regulatory technique with a remedial purpose, any incidental deterrent purpose to deter future offenses by past sex offenders would not invalidate it. See id. at 1264-66. Third, the court found that, while there “doubtless are some unpleasant consequences of registration,” it was not so harsh as a matter of degree that it constituted punishment. Id. at 1267.
In Russell v. Gregoire,
The Court applied the Ursery-Hendricks “intent-effects” test to determine whether the registration and notification requirements imposed punishment, a two-part inquiry “whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is ‘so punitive’ in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature’s intent.” Id. at 1087. In applying the “intent-effects” test, the court looked first at the language of the statute to attempt to discern the legislature’s intent, finding the statute to be regulatory, rather than punitive, based on its introductory recital of purpose and its structure and design solely to monitor the- whereabouts of the offender without any restraints on movement. See id. at 1087-88, 1090. Moving to the second part of the test, the court found that the petitioners had not provided clear proof that the sanction was so punitive in effect that it overcame the nonpunitive legislative intent. See id. at 1088.
The court considered the Mendoza-Martinez factors and concluded that they also did not support a finding that registration had a punitive effect, concluding: “no affirmative restraint or disability [was] imposed; registration [was] typically and historically a regulatory measure; it [did] not have a retributive purpose but [did] have legitimate nonpunitive purposes; and it [was] not excessive given the state interest at stake.” Id. at 1089; see also State v. Noble,
In Cutshall v. Sundquist,
The court began by examining the Act’s purpose, looking primarily to its language. See id. at 474. The court found, given that the requirements of the reporting provisions were minimal, that there was no indication in the statutory scheme that the legislature intended the Act to have anything other than the regulatory purpose of monitoring the whereabouts of convicted sex offenders. See id. After finding no punitive purpose based on the language of the Act, the Court next examined the effects of the law, applying the Mendoza-Martinez factors to determine if it was punitive in the sense that it punished a registrant twice for the same offense in violation of the Double Jeopardy Clause, see id. at 474-76, ox-increased the onerousness of punishment for crimes already committed in violation of the Ex Post Facto Clause. See id. at 476-77.
First, the court found that the Act imposed no affirmative restraints on registrants. See id. at 474. Second, the court found that the mere dissemination of registry infomxation has not been viewed as punishment from a historical perspective. See id. at 475. Third, the court found that the Act did not “come into play ‘only’ on a finding of scienter.” Id. In examining the foux-th factor, the court conceded that it was “clear that the Act wfould] serve to promote deterrence,” id., but found that a deterrent purpose alone was not sufficient to make the Act punitive. See id. at 475-76. In applying the fifth factor, the court conceded that the Act applied only to behavior that already was a crime, but concluded that, since registration and notification imposed no significant additional penalty, the criminality element did not transform the Act from one that was regulatory to one that was punitive. See id. at 476. Sixth, the court considered whether there was a remedial purpose behind the Act and whether the Act was excessive in relation to that purpose; the court concluded that the gravity of the regulatory purpose of protecting the public from sex offenders outweighed the minimal burdens imposed on registrants. See id. The court also concluded that the Act did not violate the Bill of Attainder Clause, since gathering and disseminating information was not a traditional form of punishment and since the Act served legitimate regulatory purposes and was not intended to serve as punishment. See id. at 477.
In Femedeer v. Haun,
The court then looked to see whether there was the “clearest proof’ that the notification scheme was so punitive in purpose or effect as to overcome the legislature’s civil intent. See id. In doing so, the court applied the Mendoza-Martinez factors, finding: that the notification program did not “work an affirmative disability or restraint in the sense traditionally associated with punishment,” id. at 1250; that public accessibility of information concerning a sex offender’s conviction was not historically regarded as punishment, see id.; that the notification requirements were not triggered solely on a finding of scienter, see id. at 1251; that the statute furthered the civil purposes of deterrence and that the mere existence of additional negative consequences for sex offenders did not render it criminal punishment, see id. at 1252; that, while there clearly was a connection between notification and criminal behavior, that factor deserved only limited weight in light of the equally strong connection between notification and legitimate civil purposes, see id. at 1252-53; that the legitimate civil goals of deterrence, avoidance, and investigation were' rationally connected to sex offender registration and notification, see id. at 1253; and that, given the considerable assistance that notification would offer in the prevention, avoidance, and investigation of sexual crimes, the notification scheme was not excessive in relation to its legitimate purpose. See id. The court also concluded that sex offender notification did not constitute punishment for the purposes of the Double Jeopardy Clause. See id. at 1254.
In People v. Malchow,
The court examined the Mendoza-Martinez factors and concluded that they weighed clearly in favor of the conclusion that the effect of notification was not so punitive that it defeated the legislature’s intent. See id. The court found that the law did not place an affirmative disability or restraint on sex offenders; community notification was not traditionally regarded
Particularly instructive is the recent decision of the United States Court of Appeals for the Seventh Circuit in United States v. Behrman,
In order to determine whether Maryland’s sex offender registration statute constitutes punishment for the purposes of Apprendi’s due process requirements, we will apply the two-part Ursery-Hendricks “intent-effects” test.
Furthermore, a reading of § 792 demonstrates that its intent was not to stigmatize or shame sex offenders. Rather, the registration provisions are tailored to protect the public, requiring registrants to supply basic information to apprise law enforcement officials about an offender residing or
Nonetheless, under the Ursery-Hendricks “intent-effects” test, even 'if the General Assembly’s intent was not to create a punitive scheme, we must examine whether there is “clearest proof” that the statute is so punitive, in either purpose or effect, that it overrides the Legislature’s remedial purpose. See Hendricks,
The first and fifth factors appear to weigh in petitioner’s favor. We agree with the State that the physical restraints placed by the statute upon offenders are minimal. Petitioner’s movements and activities are not restricted in any way. The focus of § 792 is not on circumscribing the movement of offenders, but on keeping law enforcement and school officials informed of their location. A registrant need only notify the supervising authority of any change of address upon moving. Furthermore, the information required to be divulged in registering is not unreasonably burdensome — a registrant must provide name, address, local place of employment and/or educational enrollment, description of the crime, date of conviction, aliases, and Social Security number. See § 792(e).
Nonetheless, sexual offender registration imposes other affirmative disabilities on registrants, particularly in light of the community notification provisions of § 792. Being labeled as a sexual offender within the community can be highly stigmatizing and can cany the potential for social ostracism. In the case of sexually violent predators, the registration statements may include documentation of highly personal, confidential, and ordinarily nonpublic information such as treatment received for a mental abnormality or personality disorder. See § 792(e)(2)(iv). Therefore, § 792 does impose an affirmative burden or restraint on registrants, and this factor weighs in petitioner’s favor, although we ultimately conclude that the burden is not so unreasonable, in light of the statute’s remedial aims, that it converts the statute into a punitive one.
In addition, § 792 clearly applies to past criminal conduct, although this factor alone is not sufficient to render a regulatory statute punitive. See Hendricks,
Section 792 has no scienter requirement. Registration requirement provisions are triggered when the offender is released into the community. Section 792 applies to individuals convicted of any of the enumerated offenses, without regard to the offender’s state of mind. Furthermore, not all of the predicate crimes have a scienter requirement. Accordingly, § 792 is not triggered by a finding of scienter.
The fourth Mendoza-Martinez factor, whether the statute promotes the traditional aims of punishment, is more complicated. Since we have concluded that the General Assembly’s intent in enacting § 792 was to protect the public from sex offenders, registration could hardly be characterized as “retribution.” Nonetheless, it is possible that § 792 promotes deterrence. Even an obvious deterrent purpose, however, does not make the law punitive, in as much as deterrence can serve both civil and criminal goals. See Ursery,
Section 792 has a legitimate purpose other than punishment. As we concluded supra, the statute indicates, on its face, that its purpose is protection of the public. The statute has strong remedial aspects and serves the important nonpunitive goal of alerting law enforcement and the community to the presence of sexual predators who may reoffend.
Perhaps most significantly for the purposes of our analysis, § 792 is not excessive in relation to its remedial purpose, particularly given the state interest at stake in preventing repetition of sex offenses. The provisions of § 792 are tailored narrowly to effectuate the goal of protection of the public from sex offenders. The statute provides for compilation and distribution of sex offender registration information, and the registration requirements apply only to those people who qualify as sex offenders under the statute.
In sum, after considering and weighing all of the relevant factors, we conclude that petitioner has failed to satisfy his burden to demonstrate that § 792 has an effect so punitive that the General Assembly’s intent to create a remedial scheme may be disregarded. We agree with those courts that have found that sex registration and notification statutes are not punishment in the constitutional sense. Accordingly, we hold that requiring petitioner to register as a sex offender, pursuant to § 792, does not constitute punishment, but is a remedial requirement for the protection of the public.
Even assuming, arguendo, that sexual offender registration constituted punishment for the purposes of our Apprendi analysis, the requisite statutory predicate that Jessica was under eighteen years of age at the time of petitioner’s crime is not a “fact that increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi,
Behrman also supports this second holding. In that case, the United States Court of Appeals for the Seventh Circuit found that the federal statute allowing for the restitution order did not include a “ ‘statutory maximum’ that could be ‘increased’ by a given finding.” Behrman,
Contrary to petitioner’s argument, the decision of the United States Court of Appeals for the Fourth Circuit in United States v. Promise,
“[T]he maximum penalty that may be imposed upon a defendant is the maximum penalty allowed by statute upon proof of only those facts alleged in the indictment and found by the jury beyond a reasonable doubt. Once this maximum penalty is established, a fact (sentencing factor) that may increase the actual sentence imposed within that maximum is not subject to the same requirements.”
Id. at 156 n. 5. See United States v. Fields,
III. Evidentiary Issues
In addition to his Apprendi argument, petitioner also raises two evidentiary challenges. He argues that the trial court abused its discretion in admitting evidence regarding his instructions to Jessica to avoid black customers, because they were “meaner” and more likely to rob her. Petitioner
Petitioner also argues that the trial court erred in admitting evidence as to why Jessica agreed 'to become a prostitute, her difficult home life, and her concern for her sister’s well-being after her arrest. He argues that such evidence was highly prejudicial, not relevant, and served only to generate sympathy for Jessica and make petitioner look immoral and blameworthy.
Maryland Rule 5-401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This Court reviews a trial court’s determination of relevance under an abuse of discretion standard. See, e.g., Ware v. State,
Petitionei'’s statements regarding avoiding African-American customers did not constitute improper appeals to racial prejudice. The State was required to prove that petitioner knowingly brought Jessica into Maryland for the purposes of prostitution. Petitioner’s instructions to Jessica as to how she should behave as a prostitute were highly probative of the mens rea of the charged offense, including his instructions as to which customers to approach and which ones to avoid. The evidence relating to Felicia’s location in the motel room in Maryland was relevant to establishing the petitioner’s transportation of Jessica within Maryland for the purposes of prostitution. The fact that such evidence incidentally may have engendered sympathy for Jessica is not error. The trial court did not abuse its discretion in admitting this evidence.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
BELL, C.J., and ELDRIDGE, J., dissent.
Notes
. Unless otherwise indicated, all subsequent statutory references are to Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.), Article 27, which was in effect at the time of petitioner's conviction and sentence.
. Section 432 reads as follows:
"Any person who shall knowingly transport or cause to be transported or aid or assist in obtaining transportation for, by any means of conveyance, through or across this State, any person for the purpose of prostitution, or with the intent and purpose to induce, entice or compel the person to become a prostitute, shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned for not more than ten years
. The states were required by the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. § 14071 (1994), to implement sex offender registration programs as a condition of federal law enforcement funding. See § 14071(g); Graves v. State,
Presently, all fifty states, the District of Columbia, and the federal government have adopted some form of sex offender registration or community notification programs. See Graves,
"At present, jurisdictions use any (or some combination) of three methods of dissemination: (1) "public access,” which requires communily members to requesl information from a given jurisdiction’s registry . . .; (2) Internet web-site access; and (3) affirmative community notification by law enforcement, which can involve the use of informational fliers and door-to-door visits by police.”
Logan, supra, at 1174 n. 35; see, e.g., Ala.Code § 15-20-21(a)(2) (1999); § 15-20-22(a) (authorizing community notification by “flyer,” which contains, inter alia, offense information, a photo, and the name and home address of the registrant, and which is distributed primarily by hand, posting, local newspaper, and the Internet).
. Qualifying sexual offenders are not automatically required to register under the statute. An offender must first be ordered by the court to register under § 792. See § 792(a)(6). A sexually violent predator, in addition to having committed multiple sexually violent offenses, as defined by the statute, must be found to be at risk for committing a subsequent sexually violent offense. See § 792(a)(12).
. Failure to register is a separate misdemeanor. The statute provides that a registrant who knowingly fails to register or knowingly provides false information is guilty of a misdemeanor and, upon conviction, is subject to a maximum term of imprisonment of three years and a $5,000.00 fine. See § 792(l).
. Because we shall determine that sexual offender registration pursuant to § 792 does not constitute punishment and that the factual findings made pursuant to the statute do not expose petitioner to a penalty beyond the maximum already prescribed, see infra p. 34, we need not reach the question of whether such findings fit into Apprendi’s exception for the fact of prior conviction.
. Article I, § 10 of the United States Constitution provides that "no state shall ... pass any ... ex post facto Law.” Under the Ex Post Facto Clause, the government may not apply a law retroactively that "inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull,
. The Double Jeopardy Clause of the Fifth Amendment provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The purpose of the Double Jeopardy Clause is to prevent successive punishments and prosecutions. See United States v. Dixon,
. We found it unnecessary to decide whether Maryland’s common law prohibition against double jeopardy would be controlled by the same analysis because, to the extent that the Legislature intended administrative license suspension to be punitive, it could override the common law double jeopardy protection by statute. See State v. Jones,
. The Constitution forbids stales to "pass any Bill of Attainder." U.S. Const. art. I, § 10. Under the Bill of Attainder Clause, legislatures are forbidden to enact "legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." United States v. Brown,
. We are aware that United States v. Ursery,
. The United States Supreme Court recently reached a similar conclusion in United States v. Cotton, — U.S. ——,
. We recognize that any claim that petitioner might have asserted as a result of Internet notification would not have been ripe for adjudication prior to the Department of Public Safety and Correctional Service’s recent dissemination of the registry over the Internet. See Artway v. Attorney Gen. of New Jersey,
Our conclusion that § 792 is not punitive and does not violate the strictures of Apprendi should not be construed as holding that the sex offender registration and community notification statute does not violate due process in any way, particularly in light of the newly initiated Internet notification, which threatens widespread disclosure of highly personal data and may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment. It is arguable that widespread Internet community notification stigmatizes registrants and implicates liberty and privacy interests that would satisfy the "stigma plus” test utilized to analyze civil due process challenges in many of the federal circuits, therefore requiring certain procedural due process protections beyond those provided in the statute prior to community notification. See, e.g., Noble v. Board of Parole and Post-Prison Supervision,
Dissenting Opinion
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 the proof required for the court to order a defendant to register does not fall within the exception, established by Apprendi v. New Jersey,
I.
Jessie Lee Young, the petitioner, was convicted, pursuant to Md.Code Article 27,
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.’ ”
“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,
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,”
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 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.
Section 792(j) addresses, inter alia, to whom copies of a registrant statement may be sent.
“(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 which the registration decision was made evaluated by a jury under the Apprendi standard.
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,
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,
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,”
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,
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,
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
As to the first factor, holding that the registration provisions did not constitute punishment, Myers,
“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,
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 , 2149,S.Ct. 2135 135 L.Ed.2d 549 , 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,
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,
“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,
More recently, in Doe v. Otte, supra, the 9th Circuit found punitive the Alaska Sex Offender Registration Act. That statute 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 providedat 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 the case of others, are extremely burdensome. This disability is exacerbated by the public notification provisions that plaintiffs’ uncontradicted evidence demonstrates exposes all registrants to world-wide obloquy and ostracism. Second, unlike the sex offender registration and notification statutes upheld by the Second, Third and Sixth Circuits, as well as by this Circuit in Russell, the Alaska statute is excessive in relation to its non-punitive purpose. An offender cannot escape the Act’s grasp no matter how clearly he may demonstrate that he poses no future risk to anyone, and no matter how final the judicial determination that he has been successfully rehabilitated; in short, under the Alaska statute, the requirements relating to disclosure of a past offense are not related to the risk posed. Furthermore, that the Act applies only to offenders who have been convicted of committing a crime and that it serves retributive and deterrent ends [ 16 ] provides additional support for our conclusion that the Alaska statute is punitive.”
Id. at 993-94 (citing Hendricks, Kansas v. Hendricks,
Other courts have expressed concern regarding the broad dissemination of sex offender registry information. In Doe v. Attorney General,
“Any person who is eighteen years of age or older, upon the verification of his age and identity, shall receive at no cost from the [criminal history systems board] a report which indicates whether an individual identified by name, date of birth or sufficient personal identifying characteristics is a sex offender as defined in section one hundred and seventy-eight C, the offenses for which he or she was convicted or adjudicated, and the dates of said convictions or adjudications. Any records of inquiry shall be kept confidential; provided, however, that the records may be disseminated to assist any criminal prosecution.”
Despite a disclaimer in the law,
“The possibility exists, however, that a person with no remedial motive 'will obtain sex offender registry information and reveal it to the plaintiffs detriment. The potential harm to the plaintiff in his employment or in his community, or both, from the use of such information for other than personal protection is substantial. Once the plaintiff is harmed, at best it will not easily be remediable.”
Id. at 100.
A similar concern is reflected in the due process challenge to Internet posting mounted in Doe v. Lee,
“Plaintiff prevails on the due process claim because the State has not provided him with any opportunity to challenge the stigmatizing allegation, implied by his inclusion in the publicly available registry, that he is a dangerous sex offender. The implied allegation, which plaintiff contends is false, arises from the undifferentiated nature of the registry, in which dangerous and nondangerous registrants are grouped in a single classification and no information is provided regarding any registrant’s dangerousness. Because there can be no doubt that some registrants are dangerous, Connecticut’s single classification falsely suggests that nondangerous registrants are a threat to public safety. In addition to falsely stigmatizing nondangerous registrants, the CT-SORA alters their legal status under state law.”
Id. at 62 (footnote omitted). But see Femedeer v. Haun,
III.
The majority adopts the “intent-effects” analysis gleaned from Hendricks and
I am hard pressed to discern how the majority can suggest that the statute is narrowly tailored. Unlike the statutes involved in most of the cases relied upon by the majority, Maryland’s sex offender registration statute permits broad public disclosure of registration information. In addition to dissemination of the registration statements to local enforcement agencies, for further dissemination, in the case of certain registrants, to the County school superintendents, and to the Department as the Central depositary, the supervising authority must send a copy of the registration statement to certain persons, including the victim, a witness who testified against the registrant, and “any individual specified in writing by the State’s Attorney.” See § 792(j)(3). In addition, it must meet the requests under § 792(j)(5)(i)(l) and may comply with those under § 792(j)(5)(i)(2). The Department or any local law enforcement agency, when they determine it to be necessary to protect the public, is required to give notice of a registration statement to anyone that they determine may serve to protect the public concerning a specific registrant. See § 792(7)(i). And, as we have seen, “[tjhe 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.” See § 792(6). During the pendency of this decision, the Department has begun posting registration information on the Internet. This information includes the registrant’s name, picture — if available, exact home address, category of offense, and a description of his crime.
This is very broad community notification. In fact, it is reminiscent of the broad notification provisions found to be punitive in Myers and Otte. The reasoning of Myers and Otte, therefore, apply with equal force to this case. While our statute may not be so broad as either of the statutes invalidated in those cases, it comes closer to them than to any other statute to which the Court has been referred or of which I am aware, save one: Femedeer v. Haun, supra, by whose reasoning, I simply am not persuaded.
Like the Kansas Supreme Court and the 8th Circuit, I am satisfied that the Maryland sex offender statute imposes an affirmative disability on the registrants, promotes retribution and deterrence, and is excessive in relation to its remedial purpose. Critical to this conclusion is the breadth of the community notification provisions. It is that which causes the affirmative
In the case sub judice, petitioner’s classification as an offender was governed solely by the definition of “offender” in § 792(a)(6), which turned only on his conviction for an enumerated crime, involving a victim under the age of eighteen and the fact that the court ordered the registration. We have no idea, because the trial judge did not make an explicit finding on the record, as to why the petitioner was ordered to register as an offender. It may have been because of the victim’s age, but it may have been for some other, less obvious reason. All we know for sure is that the trial court sought to impose as a condition of probation that the petitioner register as a sex offender.
I would reverse the judgment of the Court of Special Appeals.
Judge ELDRIDGE joins in the views herein expressed.
. Article 27, § 432 was repealed and re-enacted by 2001 Md. Laws 674. See Md.Code art. 27, § 428 (2001 Supp.). Section 432 provided:
"Anv person who shall knowingly transport or cause to be transported or aid or assist in obtaining transportation for, by any means of conveyance, through or across this State, any person for the purpose of prostitution, or with the intent and purpose to induce, entice or compel the person to become a prostitute, shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned for not more than ten years; any person who may commit the crime in this section mentioned may be prosecuted, indicted, tried and convicted in any county or city in or through which he shall so transport or attempt to transport the other person.”
. Md.Code art. 27, § 792 (1957, 1996 Repl.Vol., 1998 Supp.) was repealed and reenacted by 2001 Md. Laws, ch. 10, § 2, effective October 1, 2001, and codified at Md.Code §§ 11-701-11-702 and 11703-11-721 (1957, 1996 Repl.Vol., 1998 Supp.). By Md. Laws, ch. 221, also effective October 1, 2001, § 11-702.1, pertaining to the retroactive application of the registration law, was added.
. The transcript of the sentencing reflects that the court sentenced the petitioner as follows:
"It is the judgment and sentence of this Court that you, Jessie Lee Young, be committed to the custody of the Commissioner of Corrections to be confined under this jurisdiction for a period of ten years. You are to be given credit for 246 days that you have already served. And the Court is going to suspend all but eight years, and when are released, you are placed on five years supervised probation.
"Part of that probation, sir, you must register as a sexual offender, you are to have no contact with the victim in this case, Jessie McGregor, and her sister, Felicia Green. You are to take whatever psychological treatment as required by your probation officer, and you are to pay the cost of these proceedings.”
. The meaning of the term ‘‘Supervising authority” varies depending upon the offender’s sentence and where he or she is housed or by whom supervised. Thus, the supervising authority may be the Secretary of the Department of Public Safety and Correctional Services, the administrator of a local detention center, the sentencing court, the Director of Parole and Probation, the Director of the Paluxent Institution, the Secretary of Health and Mental Hygiene, and the like. See § 792(a)(13).
. Although "offender” is included within the definition of "registrant” and a registrant is required to register with the supervising authority upon certain occurrences, without any mention of a court order, given the specific requirement of a court order in § 792(a)(6), it appears that it is the court order that triggers the registration, not the mere qualification as an offender.
. Failure to register is a separate misdemeanor. Section 792(Z) provides:
“A registrant who knowingly fails to regisler or knowingly provides false information of a material fact as required by this section is guilty of a misdemeanor and on conviction is subject to imprisonment in the penitentiary for not more than 3 years or a fine of not more than $5,000 or both.”
. For persons in other statuses, the registration period may be for life and require more frequent registration than annually:
"(5) The term of registration is:
* * * —
“(ii) life if:
"1. The registrant has been determined to be a sexually violent predator in accordance with the procedures described in subsection (b) of this section;
"2. The registrant has been convicted of a violation of any of the provisions of §§ 462 through 464 B of this article; or ”3. The registrant has been previously required to register and has been convicted of any offense listed in subsection (a)(2)(6), or (11) of this section.”
§ 792(d)(5). A sexually violent predator must register every 90 days. § 792(d)(4).
. Where the registrant is a non-resident child sexual offender, offender, sexually violent offender or sexually violent predator, in this State for employment or educational purposes, see § 792(a)(7), this information also must include the registrant’s place of employment or "place of educational institution or school enrollment.”
. Section 792(g) contains provisions pertaining to the registration statements of child sexual offenders and sexually violent, offenders. As to the former, in addition to sending notice to the Department, the local law enforcement agency "shall send written notice of the registration statement to the county superintendent of schools in the county where tire child sexual offender will reside." See § 792(g)(1)(h). The county superintendent, in turn, must send written notice of the registration statement "to those principals of the schools within the supervision of the superintendent that the superintendent considers necessary to protect the students of a school from a child sexual offender. See § 792(g)(2).
As to sexually violent predators, § 792(g)(3) provides:
“(3)(i) Every 90 days, the local law enforcement agency shall mail a verification form, which may not be forwarded, to the last reported address of a sexually violent predator.
“(ii) Within 10 days after receiving the verification form, the sexually violent predator shall sign the form and mail it to the local law enforcement agency.
“(iii) Within 5 days after obtaining a verification form from a sexually violent predator, a local law enforcement agency shall send a copy of the verification form to the Department.”
. Section 792(j)(1) defines what a registration statement consists of for purposes of this section: "a copy of the completed registration form and a copy of a photograph of the registrant, but need not include the registrant’s fingerprints.”
. The Department and local law enforcement agency is charged with establishing procedures for carrying out the notification requirements of this section. See § 792(7)(ii).
. The majority holds, in any event, that the registration requirement does not enhance the petitioner’s sentence, as a matter of fact.
. A majority of the court applied a test that considered "whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent,” but declined to apply the multifactor test enunciated in Kennedy v. Mendoza-Martinez,
. Contrasting the notification provisions of the New Jersey statute with the registration requirements, the Artway court offered the following explanation of why the challenge of the notification procedures was not ripe for judicial review:
“The notification procedures, on the other hand, involve dissemination of potentially devastating information to undetermined numbers of private citizens. Because these private citizens are not part of the trained state law enforcement mechanism, we are less certain how they will react. For instance, the one study in the record chronicles a number of incidents of harassment at the hands of private citizens as a result of the State of Washington’s notification law, but records no incidents on the part of law enforcement. We also lack concrete record evidence about what [petitioner]’s future dangerousness classification will be, on what facts the classification will be determined, and who will be notified....”
"[Petitioner] marshals strong reasons that notification would have devastating effects. In addition to the ostracism that is part of its very design, notification subjects him to possible vigilante reprisals and loss of employment. And unlike the mere fact of his past conviction, which might be learned from an employment questionnaire or public records, notification under Megan’s Law features the State’s determination — based overwhelmingly on past conduct — that the prior offender is a future danger to the community. We reemphasize, however, that as forceful as [petitionerj’s arguments seem to be, the issue of notification is not ripe at this time.”
Id. at 1266.
. The three factors favoring a finding that it was non-punitive were historical treatment, scienter and there being a non-punitive alternative.
. The bases on which the court determined that the Alaska statute was retributive were the Act’s onerous registration obligations, specifically, the duration of the Act’s reporting requirement. Requiring the sex offenders to report quarterly to their local police stations may be analogized, the court opined, to the duty imposed on other defendants, after conviction, to report regularly to a probation officer or to comply with the conditions of supervised release. The registration duration of fifteen years applies to even non-aggravated offenses.
. The statute also provided:
"All reports to persons making inquiries shall include a warning regarding the criminal penalties for use of sex offender registry information to commit a crime or to engage in illegal discrimination or harassment of an offender and the punishment for threatening to commit a crime under the provisions of section four of chapter two hundred and seventy-five.”
. According to the court, “By undifferentiated [it] mean[t] a system like Connecticut’s, which places all registrants in one class for notification purposes — ‘sex offender’ — without attempting any individualized assessment of their dangerousness or likelihood of reoffense. One commentator has termed systems without individualized risk assessment ‘compulsory’ registries.” Doe v. Lee,
. Unlike the Alaska statute, the Utah database does not include employer names and addresses. See id. at 1247.
. I assume, without deciding that the legislative intent in enacting the sex offender registration statute was not punilive, but remedial. It should be noted, however, that there are significant indicia that suggest the contrary. As the petitioner points out, the statute was codified in the criminal code and recodified in the criminal procedure code. Also the legislative history, because great pains were taken by its sponsors to insulate the statute from an ex post facto challenge, is supportive of a statute that is punitive.
. Section 432 does not require proof of the age of the person transported as an element of the crime. The petitioner very well could have been convicted even if the jury believed the victim was older or accepted his defense that he thought she was older. Thus, there is force to the petitioner's argument that whether the victim was under eighteen was before the jury a disputed, albeit largely objective, fact in this case. The determination of that ''fact” was not submitted to the jury for decision beyond a reasonable doubt. Although the jury convicted petitioner of transporting a person for tire purposes of prostitution, the jury was presented with conflicting evidence as to that person’s age and the issue was never presented to the jury for a finding of fact.