Young v. State

A.2d 233 Jessie Lee YOUNG Maryland. STATE of Term, Sept. No. 2001. Appeals Maryland.

Court of

Aug. Lanier, Public Defend- Margret L. Asst. M. Nicole Zell brief) Baltimore, Defender, Harris, on Public (Stephen E. ers petitioner. for Bair, (J.

Gary E. Atty. Curran, Jr., Asst. Joseph Atty. Gen. brief) Maryland, Baltimore, Gen. on respondent. Argued BELL, C.J., ELDRIDGE, RAKER, before WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.

RAKER, Judge. Young, petitioner, Jessie Lee register was ordered to as a sexual offender after his conviction for transporting a sixteen- year-old girl purposes for the of prostitution. challenges He registration requirement on grounds that registration was an additional penalty required its factual conditions precedent to proven jury beyond to a a reasonable doubt. granted primarily We certiorari Maryland decide whether (1957, Repl.Vol., Code 2000 Supp.) § Article (current Maryland (1957, version at Code 2001 Repl.Vol.) seq. Article),1 11-701 et of the Criminal Mary Procedure land’s Registration statute, requiring Offenders certain register offenders, convicted defendants to as sex violates due process, light Apprendi v. New Jersey, 530 U.S. 2348, 147 (2000). L.Ed.2d 435

We shall hold Apprendi does not apply, because sex offender does not constitute in the sense, constitutional Supreme defined the United States Court, and, therefore, the predicate finding by factual the trial court was not a fact that increased penalty for the crime beyond statutory maximum within the meaning Appren- di.

I. McGregor, sixteen-year-old Jessica girl, petitioner, met thirty-four-year-old Rochester, inman New York in the sum- time, mer of 1999. At that after he told her that he ran an escort service and if asked she was in participating, interested indicated, 1. Unless subsequent statutory otherwise all references are to (1957, Maryland Repl.Vol., Code Supp.), Article which was in petitioner's effect at the time of conviction and sentence.

691 old asked how that she was. Petitioner then responded she years old. was, eighteen was and she stated that she she lying, she was and she responded that he knew that Petitioner in- years was old. Petitioner then said that she seventeen asked, that, say should that she was anyone if she structed her twenty-one. prostitu- and discussed evening, petitioner Jessica

The next took her to a prostitute, as a tion. Petitioner dressed Jessica gave advice about prostitution, known for her location to go, how including instructions about where prostitution, act, Petitioner further charge and what to for her services. prosti- him from her bring proceeds instructed Jessica tution, every night. Jessica agreed to watch over her he home, living, and lived where she had been left her mother’s told that she loved petitioner with in motels. petitioner She York At and Jessica went New point, petitioner him. one for Jessi- purchased false identification City, petitioner where and that Marie Mitchell” stating ca that her name “Rachel actually than was. she was older she September petitioner During the first week metropolitan Washington, D.C. area. came to the Jessica sister, Green, thirteen-year-old stayed with Felicia Jessica’s Laurel, in Maryland. stayed in Felicia them a motel to work the night petitioner room at while took Jessica motel ar- Early morning, one Jessica was Washington. streets station, At by police police officer. rested an undercover room and told an that Felicia was the motel Jessica officer her, they which did. Jessica told police asked the to retrieve initially telling that he was a police petitioner, about them mother, their family taking Jessica and Felicia to friend her lie, told because admitting but that that was which she later get into trouble. petitioner did not want she jury transporting was convicted Petitioner Mary in violation of person purposes prostitution for the (1957, § Article Repl.Vol., Supp.) land Code Maryland version at (repealed by 2001 Md. Laws current 428).2 (2001, maximum § Article Supp.) Code 2. Section 432 reads as follows:

permissible years under imprisonment. sentence ten conducting sentencing hearing, After the Circuit Court petitioner imprisonment years, sentenced to a term of of ten served, with eight years suspended. credit for time all but placed years court him on supervised probation The five and ordered, 792, pursuant register § to that he as sexual offender.3 "Any person knowingly transport transport- who shall or cause to be for, obtaining transportation by any ed or aid or assist in means of State, conveyance, through any person purpose or across this for the induce, prostitution, or with the intent and to entice or compel person prostitute, guilty to become shall be deemed of a felony, upon imprisoned and conviction thereof shall be for not more years

than ten required by Wetterling Against 3. The states were the Jacob Crimes Sexually Registration Program, Children and Violent Offender 42 implement § registration programs U.S.C. 14071 to sex offender funding. 14071(g); § as a condition of federal law enforcement See 329, 336, 1225, State, (2001). Graves v. 364 Md. 772 A.2d 1229-30 Wetterling developed response pressure Act was to national to against address crimes of violence and molestation committed children 8, in the United States. See id. at n. 772 336-37 A.2d at 1230 n. 8. The Wetterling guidelines registration community Act established persons against notification for convicted of criminal offenses minors or 14071; sexually predators. who were § determined to be violent See Graves, Among n. 364 Md. 336-37 A.2d at 1230 n. 8. other tilings, register persons a state must convicted of certain offenses provide agencies. the information to the FBI and local law enforcement 14071(a). information, requires § registration See Federal law that at a minimum, name, fingerprints, photo, include the offender's and current 14071(b)(1). § requires address. See Federal law also infor necessary protect mation be released to extent from Nonetheless, 14071(e)(2). specific Congress individuals. See when Act, Wetterling enacted the it afforded the states wide latitude in statutes, fashioning leaving their sex offender to the state disclosure, questions targets of which offenders should be the '* disclosure, gathered information and the extent of and the standards Graves, procedures, any, apply if to these determination. See 1234; Wayne Logan, Liberty 364 Md. at 772 A.2d at A. Interests in the PreventiveState: ty Due Procedural Process and Sex Communi Offender Laws, Criminology (1999). 89 J.Crim L. & Notification states, Columbia, Presently, fifty all the District of and the federal government adopted have some form of sex offender Graves, community programs. See 364 Md. at 336-37 n. 8; Logan, supra, 772 A.2d at 1230 n. at 1172. (or combination) present, jurisdictions "At use some of three (1) access,” "public requires methods of dissemination: which com- Special Court timely appeal noted a Petitioner conviction and sentence. affirmed his which Appeals, (2001). The State, 380, 771 A.2d 525 Md.App. Young v. statuto- Maryland court held “the appellate intermediate and Sixth process for due punitive is not ry offender statute application determining ... of purposes Amendment to the case application has no “Apprendi and that Apprendi” 391-92, at 532. Id. at 771 A.2d us.” before statute re- whether the certiorari to consider granted We as sexual register that certain criminal defendants quiring a sanction and imposes is a offenders beyond right proof right jury to a trial and the triggers the as to consider two under well Apprendi, a reasonable doubt State, Md. 778 A.2d Young v. evidentiary issues. See (2001). Community Registration II. Sexual Offender § 792 Notification Under of “offender,” purposes for sexual an the Section defines alia, as, who is inter an individual registration, offender of register to and who has been convicted by ordered the court age is of prostitute § if the intended under violating 792(a)(6)(vii). that a finding § The de eighteen years. See subjects him or her to the qualifies as an offender fendant statute at the time of release. registration requirements 792(a)(7).4 registrant register super- § A must with the See given munily requesl jurisdiction’s from a members to information access; .; (3) (2) registry . . Internet web-site affirmative commu- enforcement, nity involve the use of notification law which can by police.” and door-to-door visits informational fliers see, (1999); 35; 15-20-21(a)(2) e.g., § Logan, supra, at 1174 n. Ala.Code 15-20-22(a) by “flyer,” (authorizing community which § contains, alia, information, photo, a and the name and inter offense primarily by registrant, of the and which is distributed home address hand, Internet). posting, newspaper, and the local register automatically required to Qualifying are not 4. sexual offenders by the court to An offender must first be ordered under statute. 792(a)(6). predator, sexually § A register § See violent under offenses, multiple sexually having violent addition to committed vising authority on or registrant before the date that the is granted probation, released or is suspended sentence, or a sentence that not does include a imprisonment. term of See 792(e)(l)(i). § any type “Release” means of release from the custody a supervising authority, including parole. release on 792(a)(8). §See An register offender must annually for ten 792(d)(5). years. § See registrant provide The must supervising authority with signed statement that includes his name, address, or her place employment, Security Social number, and a description and location of qualifying 792(e). criminal § conduct. See In addition registration requirements, pro- the statute agencies vides notice to certain persons. super- vising authority must a copy send registration state- ment, registrant’s fingerprints, and a photograph of the registrant to the local law agency county enforcement in the registrant reside, counties where the work, will or attend 792(f)(3). school. §See The local law agency enforcement is required then to send written registration notice of the state- county ment superintendent schools, see § 792(g)(1)(h), county and the superintendent required send written notice of registration any statement to school principal that superintendent necessary considers to pro- tect the students of a school from a child sexual offender. See § 792(g)(2). The local law enforcement agency also must provide notice of a statement person if doing so is necessary protect public. 792(j)(7)(i). Upon written request, supervising authority must send copy statement to the victim of the crime for which registrant convicted, was any witness who against testified registrant, and specified individual writing by the State’s Attorney. 792(j)(3)(i). §See Registra- tion may information be released to the identifying and information registrants may about posted on the Internet. statute,

defined must be found to be committing at risk for a subsequent sexually 792(a)(12). violent § offense. See 792(j)(6).5 permits Department § Section post to on the Inter- Safety Public and Correctional Services name, offense, listing registrant’s and net a current each § In identifying 792(j)(6). information. See the time other Court, judice argued sub before this period since the case on Department begun post registry has information Internet. argument Supreme petitioner’s

The heart of is that that, requires judge a Apprendi Court’s decision before or may register order a as a sexual offender defendant 792(a)(6)(vii), §to condition of predator, pursuant sexual as a probation sentencing proceeding, jury in a criminal a first beyond find a doubt that sex offense must reasonable argues eighteen years age. victim was Petitioner under punitive. as a sexual offender is statutory Apprendi applies only The State contends that penalty to a requirements that increase the maximum which that, exposed suspended is the court defendant because ten-year by § 432 in part permitted of the maximum sentence sentencing petitioner granted not probation, Apprendi is Thus, not applicable. when the maximum sentence is en- hanced, suspends portion which it is not when court a grants probation, simply inappli- the sentence and is Apprendi argues cable. The further under the State “punishment.” is not petitioner’s Apprendi argument, order to follow it is helpful Supreme holding to review the Court that case. law, Apprendi pleaded guilty, Jersey under New to two counts degree of a an possession of second firearm lor unlawful degree possession and one count of third of an 469-70, antipersonnel Apprendi, bomb. See 530 U.S. at penalty S.Ct. at 147 L.Ed.2d 435. The maximum for the register separate provides is 5. Failure misdemeanor. The statute knowingly register knowingly provides registrant who fails to and, conviction, guilty upon false information is of a misdemeanor subject imprisonment years to a maximum term of three $5,000.00 792(l). fine. See degree years imprisonment. second offense was ten Based on trial judge’s finding, by preponderance evidence, a of the that Apprendi racially acted with purpose, biased the court years him to imprisonment sentenced twelve on the firearm count, pursuant Jersey’s statute, to New hate crime which provided for an imprisonment “extended term” of of ten to twenty years for crimes discriminatory committed with "a 471, purpose. 2352, id. at 120 S.Ct. at 147 L.Ed.2d 435. Supreme The that Court held than fact a prior “[o]ther conviction, any fact that penalty increases the for a crime beyond prescribed statutory maximum must be submitted jury, beyond to a proved a reasonable doubt.” Id. at 2362-63, 147 at S.Ct. L.Ed.2d 435. Apprendi began by tracing Court the common law development of the definition of elements of offenses guarantees process by jury, due and tidal which entitle a defendant to every have element of the crime charged proven jury beyond to a a reasonable doubt. The Court expose noted that “facts that punish- defendant to a greater legally ment than that prescribed by otherwise were separate definition ‘elements’ of a legal offense.” Id. at n. 120 S.Ct. at 2359 n. 147 L.Ed.2d 435. The Court explained form, that: inquiry “the relevant is one not of but of required finding expose effect—does the the defendant to a greater punishment than that jury’s guilty authorized verdict?” Id. at 147 L.Ed.2d 435. In order to succeed in his challenge to the sex offender pursuant to Apprendi, petitioner must (1) independent demonstrate three elements: that registration (2) under “punishment;” constitutes the factual findings predicate (in imposition of such “punishment” case, this age Jessica was under eighteen years that petitioner transported the time her for the purposes prostitution) expose him to a greater penalty than pre statutory (3) scribed maximum available; otherwise prerequisites such factual involve facts “other than fact of first two on at least the fails conviction.” Petitioner prior such elements.6

A. Punishment case, nor has our research have not cited parties The in this presented issue addressing precise any, uncovered violates case, i.e., registration the sex offender whether Challenges of reasoning Apprendi. on process based due have statutes and notification registration to the sex offender have contexts, courts Numerous in other however. arisen and notification registration the issue of whether discussed statutes, as civil as well of sex offender provisions for punishment constitute provisions, and restitution forfeiture attainder, and cruel bill of jeopardy, double post facto, ex of overwhelming body The purposes. punishment unusual concludes that sex offender judicial precedent this for those punishment is not types of statutes under these statutory purposes. or constitutional Braisted, 144, 80 v. U.S. begin with De Veau We (1960). con Supreme Court 1146, 4 L.Ed.2d S.Ct. York Waterfront provision a of the New sidered whether had been 1953, persons who Act of which barred Commission union official or serving as a felony of a from convicted purpose of ex docks, for the working punishment on the Frankfurter, writing for the analysis. Justice post facto that, particular a Court, ascertaining whether explained an individ for negative consequences regulation results law, the post constitutes an ex prior for conduct ual facto was to legislative aim is “whether the question determinative activity, or the restric past for whether punish that individual to a a incident about as relevant tion of the individual comes registration pursuant offender we shall determine that sexual 6. Because findings and that the factual not constitute to 792 does penalty a expose petitioner pursuant do not made to the statute p. we need not already prescribed, see beyond the maximum infra findings Apprendi’s excep fit into question whether such reach the prior for the fact of conviction. tion regulation of present situation.” Id.

4 L.Ed.2d at 1120.7 Mendoza-Martinez, Kennedy 372 U.S. 83 S.Ct. (1963), L.Ed.2d Supreme Court outlined the considered,

factors to be absent conclusive evidence con- gressional penal statute, intent as nature determining whether a statute is purposes determining criminal prosecution whether safeguards are re- (1) quired. The Court considered: whether sanction (2) involves an disability restraint; affirmative it whether historically (3) has regarded been as a punishment; whether play scienter; (4) comes into on only finding whether its operation promote will the traditional punishment— aims of (5) deterrence; retribution and whether the behavior which (6) crime; it applies already whether it lacks an alterna- tive rationally may connected; which it if exist, such alternative does whether the appears in 168-69, excessive relation to 567-68, it. Id. at 83 S.Ct. at 9 L.Ed.2d 644. States,

In 602, 113 Austin v. United 2801, 125 509 U.S. S.Ct. (1993), L.Ed.2d 488 the Court held that the Excessive Fines Eighth Clause of the applied Amendment to statutory in rem civil forfeitures of conveyances and property real used to possession facilitate the and distribution of controlled sub stances. The question Court reasoned that the of whether the Eighth applied Amendment to a forfeiture did not hinge on it criminal, whether was civil or but rather it whether “punishment.” 610, 2806, Id. at 113 S.Ct. at 125 L.Ed.2d 488. key inquiry was whether the “only forfeiture could explained serving part as in punish.” to Id. tracing After historical development forfeiture, of in rem the Court conclud- I, § 7. Article 10 of the provides United States Constitution that "no pass any post state shall ... ... ex facto Law.” Under the Ex Post Facto Clause, government may apply retroactively not a law that "inflicts greater punishment, crime, than the law annexed to the when Bull, (3 Dall.) 386, 390, committed.” Calder v. 3 U.S. 1 L.Ed. 648 (1798) deleted). Mathis, (emphasis 433, 441, Lynce v. 519 U.S. 117 891, 895, (1997). S.Ct. 137 L.Ed.2d 63 served, at in it constituted because it least ed that and property, punitive served part, punish the owner Id. at imposed penalty. and an purposes, deterrent economic 2810, 618, 113 S.Ct. at 125 L.Ed.2d 488. as understanding

In of forfeiture light the historical statutory on punishment, provisions clear focus of the owner, culpability Congress and the evidence that serving punish, provisions understood the deter statutes Court was unable to conclude the forfeiture solely purpose they and found that were served remedial Id. limitations of the Fines Clause. subject Excessive 621-22, 2812, at 125 L.Ed.2d 488. As Justice at 113 S.Ct. of in explained, concurring opinion, in his Scalia rem forfeitures “is not someone whole compensatory, make Punish- injury property. for unlawful use of the caused 2813, Id. at at being imposed....” ment is S.Ct. (Scalia, J., in concurring part concurring L.Ed.2d 488 omitted). (internal judgment) citations Montana v. Kurth Department Revenue of Ranch, 128 L.Ed.2d 767 U.S. S.Ct. Supreme question of a tax Court considered the whether illegal drugs on had possession assessed after the state imposed penalty a criminal civil forfeiture the same conduct had such that characteristics violated the Jeopardy of the Fifth and Double Clause Fourteenth Amendm Id. 128 L.Ed.2d 767. The ents.8 Austin that, not to prohibition Court modified the order provides: Jeopardy 8. The Double Clause of the Fifth Amendment "Nor any person subject put the be twice shall be same offense to jeopardy purpose of life or limb.” U.S. Const. amend. V. The prevent punishments Jeopardy to successive and Double Clause is 688, 696, Dixon, prosecutions. v. See United States 509 U.S. 113 S.Ct. 2849, 2855, Pearce, (1993); 125 L.Ed.2d 556 North Carolina v. 395 U.S. 711, 2072, (1969). against protection 89 S.Ct. 23 L.Ed.2d 656 government criminally multiple punishments prohibits punish the from ing the v. United an individual twice for same offense. Hudson States, 93, 99, 488, 493, (1997); 522 U.S. 118 S.Ct. 139 L.Ed.2d 450 Mitchell, 391, 630, 633, 399, Helvering v. 303 58 S.Ct. 82 L.Ed. 917 U.S. (1938). 700 could not have deter punitive, construed as 1946, 780, at 114 at 128 L.Ed.2d 767. purpose.

rent Id. S.Ct. Nonetheless, that, drug because the tax the Court concluded rate, remarkably high at a had a clear deterrent was assessed crime, on the commission of a was purpose, was conditioned taxpayer had been arrested for the only exacted after the gave obligation to the tax in the first precise conduct rise by sovereign place, imposed was the same that criminalized goods longer on that no existed activity, was levied lawfully possessed, tax was “too taxpayer never respects far in crucial from a standard tax assess removed pur for the escape ment to characterization 783, analysis.” Id. at 114 at poses jeopardy of double S.Ct. 1948, L.Ed.2d 767. 128 Corrections, Morales, Department

In California 1597, 499, Supreme 131 L.Ed.2d 588 U.S. S.Ct. an application held that amendment to the State of Court parole procedures that allowed the Board of Prison California frequency parole suitability healings Terms decrease prior who committed to its enact prisoners their crimes not Ex Post Facto ment did violate the Clause. See U.S. Morales, I, 10; 501-02, art at at U.S. 115 S.Ct. Const. examining 131 L.Ed.2d 588. In whether the amendment “punishment” respondent’s attached to increased the crime, recognized that determining the Court the standard for punish an to the measure of criminal whether enhancement prohibition falls within ex post ment whether the facto legislative change “alters the definition of criminal conduct or penalty punishable.” increases the which a crime is Mor ales, n. at n. 514 U.S. 131 L.Ed.2d so, “punishment” In doing inquiry the Court shifted the from law’s its effect established analysis appropriate “punishment” was flexible and context- dependent. Id. at 115 S.Ct. 131 L.Ed.2d 588. parole concluded that The Court the California amendment change range not did sentences for second available degree unchanged murder and left the substantive formula for securing any sentencing range; simply reductions parole release fixing to be followed method altered the standards, therefore did and identical substantive date under 507, 115 Id. at at punishment. constitute retroactive not “only created 1602, Because the amendment L.Ed.2d 588. producing possibility and attenuated speculative most punishment increasing the measure prohibited effect conjectur- that “such crimes,” Court concluded for covered Ex Post Facto trigger were insufficient al effects” 131 L.Ed.2d at Id. at 115 S.Ct. Clause. Jones, we A.2d 128 Md. In State constituted of a driver’s license suspension considered whether law. After jeopardy double or state under federal in Austin and Supreme Court decisions examining the recent Ranch, administrative temporary Kurth we held who is under of a driver license suspension of driver’s or under the driving while intoxicated suspicion of reasonable test or alcohol, a blood alcohol who refuses take influence of .10 alcohol concentration and has a blood who takes a test 240, 666 A.2d at 130. Id. at more, punishment. was not or application for the question the central determined that We Amendment, as of the Fifth Jeopardy Double Clause Amendment, was wheth- Fourteenth through the incorporated suspension driver’s license application of administrative er the “ purpose.” non-punitive only to serve ‘fairly’ could be said outlined three “axes” Id. 666 A.2d at 135. We first, context of the the historical making this determination: un- generally had been suspensions statute —whether license second, an examination non-punitive; punitive derstood structure, of the statute legislative intent language, had a whether the statute in order determine to simi- understanding given from historical was different third, statutes; if statute served both lar purposes non-punitive whether non-punitive purposes, Id. imposed. fairly justify the sanction alone could understanding of license revo- examining the common After generally served cations, suspensions found that license we licensing purpose of general on the purposes based remedial systems protect unscrupulous from or unskilled operators activity. who would engage otherwise the licensed Id. Next, A.2d at 136. we examined the adminis- suspension nothing in trative statute itself and found the language purpose structure to that it demonstrate served from typical removing poten- different the remedial Id. at dangerous 254, tially highways. drivers from the 666 137. legislative history A.2d at We examined the and found Legislature that intended that the the administrative license provisions suspension punitive pur- serve both and remedial Id. at 259-62, poses. 666 A.2d at we Finally, 139-41. deter- justified mined that suspension administrative could be solely by statute, purposes by the remedial without served portion suspension need for the was “pun- license that Id. at 265-66, 666 ishment.” A.2d at 142-43.9 Ursery, States v. 267, 116 2135, 135 United 518 U.S. S.Ct. that in rem civil Supreme L.Ed.2d 549 Court held of property activity forfeitures to criminal connected were “punishment” nor neither criminal for purposes Id. at 292, Jeopardy Double 2149, Clause. 116 S.Ct. at 135 in that, 549. rem historically, L.Ed.2d The Court reasoned civil forfeiture was a remedial civil sanction from distinct potentially punitive personam penalties, civil as such fines. Id. at 278-79, 2142, 116 at S.Ct. 135 L.Ed.2d 549. The Court emphasized that question particular civil whether fine punishment required was a case-specific inquiry into whether comparison the fine was so disproportionate extreme government’s damages that it puni had to be considered Id. at 277-78, 2142, tive. 116 S.Ct. at 135 L.Ed.2d 549. two-part for determining The Court outlined a test whether civil punitive purposes forfeitures were for the of the Double (1) Jeopardy Congress proceed- Clause: whether intended the unnecessary Maryland’s We found to decide whether common law prohibition against jeopardy be double would controlled same because, analysis Legislature to the extent that the intended administra- suspension punitive, tive license be it could override the common law Jones, 235, jeopardy protection by double statute. See State v. Md. 340 266, 128, (1995). A.2d (2) proceedings are criminal or civil and whether ings intent, they that, despite congressional punitive in fact so Id, civil in at legitimately be viewed as nature. could not that L.Ed.2d 549. Court concluded S.Ct. Congress intended these forfei doubt little “[t]here procedural mecha proceedings,” civil based on the tures to be statutes enforcing forfeitures under the nisms established 288-89, Id. at proceedings. in rem nature of the and the found that the 135 L.Ed.2d 549. The Court punitive were “so required proof’ “clearest the statutes despite Congress’ as to criminal form and effect render them contrary” lacking. Id. at 116 S.Ct. at intent on finding 135 L.Ed.2d 549. The Court based that, may fact while the statutes have had certain goals; that in aspects, they important nonpunitive also served historically regarded punish civil was not rem forfeiture Jeopardy as that is understood under the Double ment term Clause; requirement and that is no scienter in the there 291-92, 2149, 116 statute. Id. at S.Ct. at 135 L.Ed.2d 549. The Court concluded that the mere fact that the statutes were activity puni tied to criminal was insufficient to render them 292, 2149, Id. at 116 at 135 549. tive. S.Ct. L.Ed.2d Hendricks, 346, 2072, In Kansas v. 117 138 U.S. S.Ct. Supreme L.Ed.2d 501 Court considered whether Act, Sexually pro- Kansas’ Predator which Violent establishes persons likely to cedures for the civil commitment who are acts of engage “predatory sexual violence” due a “mental “personality abnormality” or a disorder” violated the Double Jeopardy or Ex Post Facto Clauses of the federal Constitu- 350, 2076, Id. at at 138 L.Ed.2d 501. tion. S.Ct. claims, that rejecting Hendricks’ constitutional the Court held proceedings Act did not criminal and that invol- establish punitive. not untary pursuant commitment to the statute was 369, 2085, Although id. at 138 L.Ed.2d 501. See at S.Ct. that a civil on a statute is not recognized the Court label always dispositive, “reject legislature’s the Court would challenging only party manifest intent where the statute proof statutory provide[d] [was] ‘the clearest ‘the scheme so either negate effect as to ” [the 361, intention’ to deem it ‘civil.’ Id. at State’s] 117 S.Ct. at (citations omitted). 138 L.Ed.2d 501 In those limited circumstances, noted, the Court the statute would be consid- having ered as criminal proceedings established for constitu- purposes. tional id.

In determining whether confinement under the Kansas Act punishment, initially ascertain, constituted sought Court construction, statutory as a matter of legislature whether the had intended the Act to civil or proceedings, create criminal concluding, placement based on the Act within the (rather criminal) probate than description code and its creating Act a civil proceeding, commitment that “[n]othing suggests on the face of the legislature that the sought anything create other than a civil commitment scheme designed protect from harm.” Id. at 2082, 138 at S.Ct. L.Ed.2d 501.

The Court examined the Mendoza-Martinez factors in con cluding that First, the Kansas Act was not punitive. Court stressed commitment under the Act did “impli not cate primary objectives either the two punish of criminal 361-62, ment: retribution or deterrence.” Id. Second, 138 L.Ed.2d that, pointed the Court out statute,

unlike criminal Act require did not a finding of scienter to commit an individual who was found to be a sexually predator. violent See id. at 117 S.Ct. at Third, 138 L.Ed.2d 501. acknowledged Court civil commitment restraint, scheme involved an affirmative but that, given legitimate concluded nonpunitive governmental objective protecting of from dangerously men ill, tally person the mere fact that a is detained did not lead se per conclusion that the state has imposed punishment. 363, 117 2083, 138 id. at See S.Ct. at Fourth, L.Ed.2d 501. Court found that the duration of confinement was linked to the nonpunitive stated purposes namely, commitment — hold the individual until the mental abnormality longer no a Fifth, caused threat to others. See id. the Court found that procedural protections Kansas’ use of traditionally found in

705 dangerous class of trials, narrow the designed to criminal proceeding individuals, the civil commitment did not transform at See id. at 117 S.Ct. prosecution. into a criminal that the Act’s Finally, found L.Ed.2d 501. the Court did pedophilia for Hendricks’ any treatment failure offer legitimate was a incapacitation since punitive, not render 365-66, 117 id. at at of the civil law. S.Ct. end concluded: Ultimately, 501. the Court L.Ed.2d intent’; limit- any punitive has ‘disavowed “Where the State dangerous segment particularly a of confinement to small ed directed individuals; procedural safeguards; provided strict prison general from the persons segregated that confined who have the same status others population and afforded committed; if such is treatment civilly recommended been showing upon possible; permitted immediate release dangerous mentally longer is no the individual intent.” it acted with impaired, say we cannot 2085, 138 368-69, 117 501. Id. L.Ed.2d jurisdictions in other have concluded Appellate courts notification statutes registration and that similar sex offender Artway example, For punishment. do not constitute (3d Jersey, New General State 81 F.3d Attorney Cir.1996), Third Appeals the United States Court question considered the whether Circuit Jersey “punishment” law constituted requirements of New Facto, Attainder,10 the Ex Post Hill of and Double under See id. of the United States Constitution. Jeopardy Clauses Court Supreme an examination at 1253. After extensive analysis for three-pronged precedent, the court derived punish particular constitutes determining whether a measure (3) (1) (2) objective purpose; its purpose; ment: its actual U.S. "pass Bill of Attainder." The Constitution forbids stales Clause, I, legislatures are art. 10. Under the Bill of Attainder Const. form, acts, "legislative what their to enact no matter forbidden easily members of apply or to ascertainable either to named individuals without a group way inflict on them in such a as to 437, 448-49, Brown, U.S. 85 S.Ct. judicial trial." United States v. 1707, 1715, (1965). L.Ed.2d its id. at 1263. prong, objective effect. See The second statute, (1) purpose of subparts: turn had three wheth- explained solely by purpose; er the law could be a remedial (2) analysis historical whether shows that the measure has traditionally regarded punishment; been as and if the legislature intended the law serve some mixture of nonpunitive purposes, historically punitive whether the purpose necessary complement nonpunitive is a to its opera- operates tion and whether the law in a manner consistent with historically purposes. its mixed id. See test,

Applying three-part determined, first, the court legislative history the. Jersey’s New sex offender registration law indicated that it was not intended be Second, punitive. id. at 1264. turning objective See purpose inquiry, court found that registration was reason- ably legitimate related to the remedial of law enforce- vigilance, ment it was not historically understood as punishment, that, historically because it a regulatory technique purpose, any with remedial incidental deterrent purpose to by past deter future offenses sex offenders would Third, not it. id. at invalidate 1264-66. court found that, while there unpleasant consequences “doubtless are some of registration,” it was not degree so harsh as a matter of it punishment. constituted Id. at 1267. (9th

In Cir.1997), Russell v. Gregoire, F.3d 1079 United States Court of Appeals for the Ninth Circuit consid- constitutionality Washington’s ered the regis- sex offender statute, tration and notification the Community Protection Act. See id. at 1081. In order to determine whether the Act Clause, violated the Ex Post Facto the court principally had to determine whether the and notification provisions imposed “punishment.” See id. at 1083.

The Court applied the Ursery-Hendricks “intent-effects” test determine whether the and notification requirements imposed punishment, a two-part inquiry “wheth- (1) legislature er intended the sanction to punitive, (2) punitive’ the sanction is prevent ‘so effect as to the court nature, or civil in legitimately viewing regulatory from applying intent.” Id. at 1087. despite legislature’s test, language first at the court looked “intent-effects” intent, attempt legislature’s statute to to discern the the regulatory, punitive, to rather than finding the statute introductory purpose of and its structure based on its recital of the offender design solely and to monitor the- whereabouts 1087-88, id. at 1090. without restraints on movement. See test, that Moving part of the the court found the the second provided proof not clear that the sanction was petitioners had legisla- punitive nonpunitive so that it overcame the effect id. at 1088. tive intent. See and court the Mendoza-Martinez factors

The considered they support finding regis also did not a concluded that effect, concluding: tration had a “no affirmative re typically disability imposed; registration [was] straint or [was] measure; not historically regulatory and it have [did] purpose legitimate nonpunitive pur retributive but have [did] poses; given and not state interest at [was] it excessive 1089; Noble, Ariz. 829 stake.” Id. at see also State v. 171 (2d Pataki, (1992); P.2d Doe v. 120 F.3d 1263 Cir.1997); Costello, 138 N.H. State A.2d Poritz, (1995). (1994); Doe v. 662 A.2d 367 In N.J. applying community the Mendoza-Martinez factors to the that, although court provisions, acknowledged deterrence, goal notification did serve the that was not punitive, sufficient deem since it was not retributive Russell, require finding did not of scienter. 124 F.3d at See potential community court also found stigma The punishment, particularly notification insufficient to render it punish. lacked the intent to See id. at 1092. since the statute rejected potential court argument The results threats, ostracism, harassment, vigilantism to commu due nity disability an or notification constituted affirmative re straint. See id. (6th Cir.1999), Sundquist, Cutshall v. 193 F.3d 466 Appeals

United States for the Sixth Circuit consid- Court Registration ered whether the Tennessee Sex Offender Act, which 40-39-103 Monitoring Tenn.Code. Ann. agen- with law register enforcement requires sex offenders regis- officials to disseminate and allows law enforcement cies necessary, when violated the try information Facto, Attainder, Ex Post Pro- Bill of Due Jeopardy, Double Amendment, cess, Clauses, Eighth Equal Protection travel, to interstate and the constitutional right constitutional Cutshall, F.3d at court See 469. The right privacy. registration and notification act did that the sex offender held purposes for the of the Double not constitute Facto, Clauses, Jeopardy, Ex Post or Bill of Attainder or for 476-78, See id. Eighth Amendment. 482-83. began by examining purpose, looking the Act’s

The court id. at 474. found, court primarily language. to its given requirements reporting provisions were minimal, statutory no in that there was indication the scheme legislature anything that intended the Act to have other regulatory purpose monitoring than the of the whereabouts of id. convicted sex offenders. See finding punitive no After Act, purpose language based on the the Court next law, applying the Mendoza- the effects of the examined Martinez factors if it was in determine the sense for punished registrant that a twice the same offense Clause, 474-76, see id. Jeopardy of the Double ox- violation already punishment increased the onerousness of for crimes in violation of the Ex Post Facto Clause. See id. committed 476-77.

First, imposed that Act no the court found affirmative See id. at 474. Second, registrants. on the court restraints registry that infomxation has found the mere dissemination punishment from historical perspective. not been viewed Third, id. at 475. that See the court found the Act did not Id. In play ‘only’ finding into on of scienter.” “come factor, foux-th court it was examining the conceded deterrence,” id., promote Act wfould] “clear that the serve purpose but found that a deterrent alone was not sufficient to id. at 475-76. See In punitive. applying make the Act applied only factor, that the Act the court conceded fifth crime, that, since but concluded already was behavior significant no additional imposed and notification Act not transform the criminality penalty, the element did id. punitive. that was See regulatory to one from one that was awas Sixth, whether there the court considered at 476. Act was the Act and whether purpose behind remedial court concluded purpose; to that excessive relation protecting gravity regulatory of the imposed minimal burdens outweighed the from sex offenders Act that the court also concluded registrants. on See id. The Clause, gathering of Attainder since did not violate the Bill form of was not a traditional disseminating information regulatory legitimate Act and since the served punishment. to serve as and was not intended purposes id. at 477. (10th Haun, Cir.2000),

In Femedeer v. 227 F.3d for the Circuit consid- Appeals States Court Tenth United scheme violated whether sex offender notification ered Utah’s applied and Ex Post Facto Clauses when Jeopardy the Double prior to the effective date to offenders who committed crimes considering Femedeer’s legislation. See id. at 1246. threshold challenge, ex the court addressed the post facto inquiry program, Utah’s re- whether Internet quiring registration previously for crimes committed those pun- subject to its constituted additional criminal provisions, found that intent of ishment. See id. at 1248. The court allowing Legislature, enacting the statute the Utah notification, remedy. a civil clearly Internet to establish placed id. at court noted that statute was See 1249. The the code, an in the civil rather than the criminal contained code investigating to assist in unambiguous purpose statement offenders, by supported and was the apprehending and sexual id. legislative history of the statute. See was “clear- The court then looked to whether there see punitive was so that the notification scheme proof’ est civil intent. legislature’s as to overcome the effect so, applied court the Mendoza-Martinez doing See id. factors, finding: that program the notification did not “work an disability affirmative or restraint traditionally the sense punishment,” 1250; associated with public id. accessi- bility of concerning information a sex offender’s conviction was historically id.; not regarded punishment, see requirements triggered were not solely on find- scienter, 1251; ing of see id. at that the statute furthered the purposes civil of deterrence and that the mere existence of negative additional consequences for sex offenders did not it punishment, 1252; that, render criminal see id. at while clearly there was connection between notification and crimi- behavior, nal that factor only weight deserved limited in light equally strong connection between notification and legitimate purposes, 1252-53; civil see id. at legiti- deterrence, civil goals avoidance, mate investigation and rationally were' connected to sex offender notification, 1253; that, see id. at given the considerable assistance that notification prevention, would offer in the avoidance, crimes, investigation of sexual the notification scheme was not legitimate excessive relation to its purpose. See id. The court also concluded that sex offender notification did not punishment constitute purposes of the Double Jeopardy Clause. See id. 1254. Malchow,

In People 193 Ill.2d 250 Ill.Dec. N.E.2d 433 Supreme the Illinois Court examined constitutionality of the Illinois Sex Registration Offender Act and Sex Offender and Community Child Murderer Notifica tion Law. id. See at 436. In considering the defendant’s ex post challenge and provisions whether the regis of the facto tration and notification statute punishment, constituted court first legislative considered the intent behind and notification. court legislative The found the intent to be protection rather than of sex offend ers. id. at court next examined the effects of acts, that, noting if legislature’s even intent was not punitive, such disregarded intent would be where could be shown proof’ “the clearest that the statute’s effect so negated that it legislature’s intent. See id. at 439. court examined the Mendoza-Martinez factors and they weighed clearly concluded that favor of the conclusion that notification not that it the effect of was so intent. See id. The court found legislature’s defeated the that law did not an or place disability affirmative restraint offenders; community on notification not traditionally sex was the notification law had no scienter regarded punishment; requirement; purpose protection the statute’s was of the public significantly and it did not or promote either retribution deterrence; purpose protection law was of punishment; provisions rather than and the of the not goal law were excessive relation to sex offenders. See id. at 439-40. protecting public from The court also found that and notification did not punishment for purposes Eighth constitute of the Amend prohibition against ment cruel and unusual punishment, requirement Illinois proportional punishment, constitution’s See id. at 440-42. jeopardy. double Particularly instructive is the recent decision the United Appeals States Court of for the Seventh Circuit in United Behrman, (7th States v. Cir.2000). case, 235 F.3d 1049 In that Behrman maintained the restitution that he was ordered pay pursuant plea agreement government to a with the process violated due because was based on facts that were not jury’s established to a beyond satisfaction a reasonable doubt based on Apprendi. See id. In rejecting argument, that Apprendi the court apply concluded did not because restitution a civil remedy included within the “ ” judgment, ‘penalty crime,’ and, criminal not a for a there- fore, predicate its facts did not beyond have be established Id. a reasonable doubt. at 1054.

In order to Maryland’s determine whether sex offend er statute constitutes pur poses Apprendi’s process requirements, due apply we will two-part Ursery-Hendricks “intent-effects” test.11 In or- Ursery, 11. We are aware that United States v. 518 U.S. 116 S.Ct. jeopardy 135 L.Ed.2d 549 was a double case intent, legislative look to der to determine we the declared Legislature, as well as the text and structure of enacted, § express statute. As 792 contained no state- purpose. Although placed it was within Article 27 ment Article, in location and recodified the Criminal Procedure its procedure necessarily within criminal laws does not indi- Assembly part punish cate an intent on the the General Forfeiture, restitution, injuries and criminal sex offenders. compensation also located in Article 27 and were re- were Therefore, in tained in the Criminal Procedure Article. exam- statute, ining purpose primarily plain of the we look language. respect legislative to the determination of With intent, language plain design we conclude that the and overall clearly punish- §of 792 indicate that it was not intended as ment, regulatory requirement but rather was intended as a protection public. at There is no indication in aimed statutory Assembly regis- scheme the General intended punish tration or notification as a device to convicted sex many states, Maryland offenders. Unlike other did not enact involuntary sexually a law for the commitment of violent offenders, far carry which would more serious burdens than See, (1994). § registration. e.g., Kan. Stat. Ann. 59-29a01 Furthermore, reading § 792 its demonstrates Rather, stigmatize intent was not to or shame sex offenders. registration provisions protect public, are tailored to requiring registrants supply apprise basic information to residing officials about an law enforcement offender or work- Registration in information ing the area. is disseminated to county superintendents, local school school principals, and § municipal police departments. 792(g). See Nonetheless, Ursery-Hendricks under the “intent-effects” test, Assembly’s even 'if the General intent was not create 2072, Hendricks, 346, 521 U.S. 117 S.Ct. L.Ed.2d 138 501

Kansas post jeopardy involved both double and ex None claims. facto theless, why apply we see no reason we should not the same test for guidance determining § whether 792 constitutes for the 466, Apprendi Jersey, purposes of v. New 530 U.S. 120 S.Ct. 147 (2000). L.Ed.2d 435 is “clearest scheme, there must examine whether we punitive in either punitive, is so that the statute proof” purpose. remedial effect, Legislature’s that it overrides L.Ed.2d Hendricks, at at See U.S. 2148, 135 L.Ed.2d 501; 116 S.Ct. Ursery, 518 U.S. § has a of whether making determination intent, look to the we regulatory its despite effect supra p. guidance. Mendoza-Martinez factors A.2d at 240. petitioner’s weigh appear fifth factors The first and physical restraints State that the agree favor. with the We minimal. Petition- are upon offenders placed any way. not restricted and activities are er’s movements circumscribing the movement not on focus of 792 is officials and school offenders, keeping on law enforcement but only notify the registrant A need of their location. informed moving. upon authority any change of of address supervising regis- in divulged Furthermore, required information registrant must unreasonably is not burdensome —a tering name, address, place employment local provide and/or crime, of con- enrollment, date description educational 792(e). § Security number. See aliases, viction, and Social af- Nonetheless, imposes other registration offender sexual light in particularly registrants, on firmative disabilities Being § labeled as community provisions highly stigma- community can be offender within the sexual In the for social ostracism. tizing cany potential and can registration statements sexually predators, the case of violent confidential, personal, of highly may include documentation such as treatment re- ordinarily nonpublic information disorder. See abnormality personality for a mental ceived 792(e)(2)(iv). Therefore, impose an affirmative § 792 does § weighs in and this factor registrants, or restraint on burden favor, ultimately conclude that the although we petitioner’s unreasonable, statute’s remedi- light not so burden is one. into a aims, that it converts the statute al addition, clearly applies conduct, § to past criminal although this factor is not regula alone sufficient to render a Hendricks, tory punitive. statute at U.S. 501; Ursery, 138 L.Ed.2d see also U.S. (finding 116 S.Ct. at 135 L.Ed.2d 549 fact activity forfeiture was tied to criminal “insufficient render Newman, punitive”); United statutes States F.3d (7th Cir.1998) 541 n. 10 (finding that the fact restitution under the Victim and Witness Act ap Protection plies already to conduct that is a crime insufficient to over factors). balancing come the other many There are occasions legislatures when attach both criminal and civil sanctions act the same or omission. The fact the statute is triggered by a criminal conviction does not undermine the Legislature’s intent to registry create sex offender to aid in the civil of tracking the location of known sex offend Thus, ers. The same is true as to restitution. although the registration connection between sex offender past criminal clear, only behavior is we accord weight limited to this factor light equally strong connection between and legitimate purposes. civil

Ultimately, an examination of remaining Mendoza- Martinez factors convince us that 792 is not so punitive a application its effect that its Legisla defeats the ture’s remedial intent. registration traditionally Sex offender regarded has not punishment. been While the various sex offender statutes do not a precisely have identical antecedent, registration historical is typically historically regulatory with a purpose. measure remedial Section 792 punish does not simply because it works a detriment on petitioner. Dissemination of information about criminal activi ty always has potential held the for negative substantial consequences for those involved in that activity, but dissemina of tion such information in historically itself has not been regarded as legiti when done furtherance of a government Verniero, mate interest. See E.B. v. 119 F.3d 1077, 1099-1100 (3d Cir.1997). has no scienter Registration re- requirement.

Section is re- triggered when the offender provisions are quirement to individuals community. applies into the Section leased offenses, regard to without of of the enumerated convicted Furthermore, of the mind. not all state of the offender’s Accordingly, a scienter requirement. predicate crimes have of scienter. by finding triggered § is not factor, whether Mendoza-Martinez the statute The fourth compli is more punishment, aims of traditional promotes the Assembly’s that the General cated. Since we have concluded from protect sex enacting § 792 was intent “retri offenders, hardly characterized as registration could Nonetheless, possible promotes is bution.” however, purpose, an obvious deterrent Even deterrence. can in as much as deterrence punitive, not the law does make Ursery, 518 U.S. at goals. both civil and criminal serve Ranch, Kurth 549; 292, 116 at 135 L.Ed.2d S.Ct. Thus, 780, 114 the fact 128 L.Ed.2d 767. U.S. con negative attaches additional that the scheme does not alone sequences to the commission sex offenses punishment. it criminal render purpose punishment. other than legitimate 792 has a

Section face, indicates, on its supra, the statute As we concluded strong has protection public. of the The statute its important nonpunitive goal of aspects remedial and serves the community presence alerting law enforcement predators may who reoffend. sexual analysis, of our significantly purposes for the Perhaps most purpose, to its § 792 is not excessive relation remedial in preventing state at stake particularly given the interest § 792 are tai- provisions repetition sex offenses. The goal protection narrowly to effectuate the lored compila- provides public from sex offenders. The information, tion and distribution of sex offender only people apply those registration requirements and the under the statute. qualify who sex offenders 716 sum, considering after all weighing of the factors, petitioner

relevant we conclude that has failed satisfy § his burden to that an demonstrate has effect so Assembly’s that the General intent to create a reme may disregarded. agree dial scheme with We those courts that have found that sex and notification statutes punishment Accordingly, are not the constitutional sense. petitioner offender, hold that requiring register we as a sex pursuant punishment, §to does not constitute but is a requirement protection for public. remedial of the

B. Increased Penalty assuming, arguendo, that reg Even sexual offender istration of our Ap purposes constituted for the prendi analysis, requisite statutory predicate that Jessica years eighteen age petitioner’s under at the time is not a “fact that penalty crime increases the for a crime beyond maximum.” Apprendi, prescribed statutory 2362-63, L.Ed.2d 435. Apprendi U.S. only applies to facts increase the maximum sentence to States, See Harris v. United exposed. which a defendant n —U.S.—, (2002) 122 S.Ct. 153 L.Ed.2d 524 (holding, context of sentencing brandishing the federal factor of a pistol, mandatory facts increased the minimum sen without extending beyond statutory tence the sentence by maximum did not have to be found a jury beyond a to Apprendi). Maryland Code pursuant reasonable doubt (1957, Repl.Vol., 2000 Supp.) Article 432 authorizes years imprisonment. a maximum sentence ten In sentenc ing petitioner, trial petitioner years, court sentenced to ten suspended years but two sentence ordered that he register as a Ap probation. sex offender as condition of prendi apply does not to a case which tidal court imposes discretionary permissible sentence within the statu tory range.

Behrman also supports case, holding. this second In that Appeals the United States Court for the Seventh Circuit allowing found that the federal the restitution “ that could be ‘statutory maximum’ not include a order did Behrman, at 1054. 235 F.3d finding.” given ‘increased’ remedy “A civil included Appeals explained: As the Court for a ‘penalty it a does not make judgment with a criminal beyond a reasonable must be established that crime’ otherwise, opera does not affect Apprendi Put doubt.... Guidelines; in it is limited situations Sentencing tion punishment.” Id. maximum findings statutory which affect of the Unit argument, the decision Contrary petitioner’s Fourth in United Appeals for the Circuit ed States Court Cir.2001) Promise, (4th inapposite is 255 F.3d 150 States v. Promise, court concluded that present case. possession find of the required jury that a must Apprendi a doubt drug quantity beyond reasonable specific threshold aggravated drug for an to be sentenced order for defendant quantity finding subjected trafficking drug offense because the maximum otherwise exceeding to a the defendant sentence explained: Id. at 152. As the court allowable. upon may imposed that penalty maximum

“[T]he by upon allowed penalty defendant is the maximum and found proof only alleged facts the indictment those this maxi- doubt. Once jury beyond reasonable factor) established, (sentencing a fact penalty mum is imposed within that maxi- may the actual sentence increase subject requirements.” mum is not to the same Fields, 393, 242 F.3d 395 n. 5. v. Id. at 156 See United States Nance, 820, (D.C.Cir.2001); 236 824-25 States v. F.3d United (7th Hishaw, 565, Cir.2000); v. 235 F.3d 574-75 United States 160, (10th Cir.2000); v. 230 F.3d 164- Doggett, United States 1318, (5th Cir.2000); Rogers, v. 228 F.3d 65 United States Rebmann, 521, (11th Cir.2000); v. 226 F.3d United States (6th Cir.2000); Nordby, F.3d 524-25 United States (9th Cir.2000).12 1053, 1058-59 recently Supreme reached a similar conclu- The United States Court — ——, Cotton, sion in United States v. U.S. that, (2002) deciding (suggesting without because the fact L.Ed.2d 860 sentence, drug statutory it had to be quantity increased the maximum finding statutory predicates for sex offender Behrman, is much more akin to finding, statutory predicates for restitution than to finding of a

specific drug in Promise because the statu- quantity threshold tory in Promise after given sentence to the defendant court found requisite drug quantity (thirty years) was greater than the maximum that otherwise would have been finding (twenty years). available absent simply That not the case here.13 indictment, alleged pursuant Apprendi in the and Jones v. United

States, 526 U.S. 243 n. 119 S.Ct. 1224 n. 143 L.Ed.2d (1999)). recognize petitioner might 13. We claim that have asserted aas result of Internet ripe adjudication notification would not have been prior Department Safety of Public and Correctional Service’s registry recent Artway dissemination of the over the Internet. See v. 1235, Attorney Jersey, (3d Cir.1996). Gen. New 81 F.3d 1250-51 of Nonetheless, petition judice for only certiorari in the case sub raised one, registration the issue of whether the ing punitive trigger- awas process protections Apprendi, the criminal due of and not the issue of whether and notification under statute meet the requirements process pursuant of civil due balancing to the test enunci- in Eldridge, ated Mathews v. (1976), 424 U.S. 96 S.Ct. 47 L.Ed.2d 18 not, therefore, progeny. and its We do address the issue of whether the Due Process Clause of the requires Fourteenth Amendment particularized registrant, pursuant risk assessment of each specific to procedures, statutorily eligible to determine pose which offenders a risk notification, community prior registration, to and Internet dis- Gen., Attorney semination. Doe v. 426 Mass. 686 N.E.2d Cf. (1997) ("[A registrant] hearing is entitled ato and a determination as to ... concerning whether sex offender information him should be request.”). available on Our conclusion that not is and does not violate the Apprendi holding strictures should not be construed as that the sex community offender and notification statute does not vio- process any way, late due particularly light newly in of the initiated notification, widespread Internet which highly threatens disclosure of ostracism, personal may implicate data and employment social loss of opportunities, possibly physical verbal and It harassment. arguable widespread that community stigmatizes Internet registrants implicates liberty privacy interests that would satisfy "stigma plus” analyze process test utilized to civil due circuits, challenges many of the federal requiring therefore certain procedural process protections beyond due provided those in the statute See, prior community e.g., to notification. Noble Board Parole and Supervision, (1998) Post-Prison (holding Or. 964 P.2d 990 Evidentiary Issues III. Apprendi argument, petitioner also raises to his addition trial argues that court evidentiary challenges. He

two his admitting regarding evidence its discretion in abused customers, they because to Jessica to avoid black instructions argues likely to rob her. Petitioner were “meaner” and more toward African-Ameri- negative of his attitude that evidence far potential prejudice and that for cans was not relevant argues value. He there outweighed probative to petitioner to intended sufficient evidence establish petition- so that evidence about prostitute, make Jessica far less customers was er’s advice avoid African-American prejudicial. than probative admitting argues also that the trial court erred

Petitioner prostitute, her why agreed as to 'to become a evidence Jessica life, well-being difficult and her concern for her sister’s home highly argues that evidence was after her arrest. He such relevant, only generate sympa- prejudicial, not and served look immoral and thy petitioner for Jessica and make blame- worthy.

Maryland 5-401 evidence” Rule defines “relevant having any tendency as “evidence to make the existence of the action consequence fact that is of the determination parole designation "predatory sex board's an individual as a Oregon community notification statute offender” offender, implicated liberty entitling as a interest a sex matter process, hearing prior designation); procedural due to notice and a Dep’t Reporters v. Freedom United States Justice Comm. 1476, Press, 749, 762, 1468, (1989) 109 S.Ct. 489 U.S. L.Ed.2d privacy right avoiding (recognizing a in the interest "individual matters,” personal even if such is available in disclosure of information Davis, 1155, 1163, records); Paul v. 424 U.S. 96 S.Ct. Constantineau, 433, 437, (1976); 400 U.S. 47 L.Ed.2d 405 Wisconsin 507, 510, Doe, (1971); 27 L.Ed.2d 515 686 N.E.2d at 1013-14 91 S.Ct. available); (discussing publically privacy interests in information that is Liberty Wayne Logan, A. Interests in the Preventive State: Procedural Laws, Community 89 J.Crim. Due Process and Sex Notification Offender (1999); generally Criminology L. 1176 n. 45 see Shields v. & (7th Cir.1989) (referring privacy Burge, 874 interests F.2d “confidentiality” "autonomy”). probable probable more or less than it would without evidence.” This Court reviews a trial court’s determination of See, e.g., relevance under an abuse of discretion standard. State, Ware v. 650, 672-73, 360 Md. 759 A.2d 775-76 (2000). Trial determining courts have wide discretion in id. relevance of evidence. regarding

Petitionei'’s Afri avoiding statements improper appeals can-American customers did not constitute prejudice. to racial required prove The State was petitioner knowingly brought Maryland into Jessica for the purposes prostitution. Petitioner’s instructions Jessica as to how prostitute highly she should behave as a were of the mens rea probative charged offense, including his instructions as to which to approach customers and which ones to avoid. relating The evidence to Felicia’s location in the Maryland motel room in establishing relevant petitioner’s transportation of Maryland Jessica within for the purposes prostitution. The fact that such evidence inciden tally may engendered sympathy have for Jessica is not error. trial court did not abuse its in admitting discretion this evidence.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

BELL, C.J., ELDRIDGE, J., dissent. BELL, dissents, Judge, ELDRIDGE, in which Chief J. joins.

I disagree majority’s with the Maryland’s conclusion that sex offender statute does not punish- constitute is, all, ment. first of The statute much more than a registra- statute; broad, unlimited, tion rather it also virtually contains community notification provisions. Specifically, and particu- larly in light community of its provisions, I am persuaded that effect of the outweighs, negates, any hold, remedial it has. I would therefore, registration pursuant to the sex regis- offender and, further, tration statute constitutes because

721 to court to order defendant for the required proof by exception, established not fall within register does 2348, 487-88, 120 466, New 530 U.S. Jersey, Apprendi of the 435, proof for the 2361-62, 453-55 147 L.Ed.2d conviction, predicate factual the relevant prior fact of make the jury, to a which must presented be registration must I Accordingly, doubt. beyond a reasonable determination dissent.

I. convicted, pursuant petitioner, was Young, Lee Jessie (1957, Supp.),1 27, Repl.Vol., 1996 2000 § 432 Md.Code Article victim this prostitution purposes, the transporting, statute, case, years separate old. A eighteen who under (1957, Supp.),2 1998 27, Repl.Vol., § 792 1996 Md.Code art. offenses, convicted of certain enumerated requires defendants so, 432, court to do see by § and ordered including 792(c). 792(a)(6)(vii), § For his as sex offenders. register § conviction, years imprison- to ten petitioner was sentenced ment, maximum, years suspended and eight with all but release, on a condition years supervised probation five 27, by repealed § and re-enacted 2001 Md. Laws 674. 1. Article 432 was 27, (2001 provided: Supp.). § Section 432 Md.Code art. 428 transport- person knowingly transport cause to be "Anv who shall or for, any obtaining transportation by means of ed or aid or assist State, any person conveyance, through this for the or across induce, purpose to entice or prostitution, the intent and or with guilty compel person prostitute, shall be deemed of a to become imprisoned felony, upon for not more conviction thereof shall be may in this section years; any person who commit the crime than ten indicted, may prosecuted, tried and convicted mentioned through transport attempt county city which he shall so or in or transport person.” the other (1957, Supp.) was Repl.Vol., § 2. Md.Code art. Laws, 10, § ch. effective repealed and reenacted 2001 Md. 1, 2001, §§ and 11 Md.Code 11-701-11-702 October and codified at Laws, (1957, By ch. Repl.Vol., Supp.). Md. 703-11-721 11-702.1, pertaining October also effective law, application was added. retroactive which, request, “regis- consistent with state’s was that he ter as a sexual offender.”3 that, Apprendi, Supreme United States Court held

under the Fourteenth Amendment the United States Con- “ (other conviction) stitution, ‘any prior fact than that increas- penalty charged es the maximum for a crime must be in an indictment, jury, proven beyond submitted a and a reason- ” 476, 2355, able doubt.’ 530 at 120 at U.S. S.Ct. 147 L.Ed.2d States, Jones United (quoting 227, 243, 6, at 446 526 U.S. n. (1999)). 311, 119 S.Ct. n. 143 L.Ed.2d 326 n. 6 There, Apprendi guilty pled degree to two counts of second possession of a for an purpose. firearm unlawful at U.S. at 147 L.Ed.2d S.Ct. at 442. Under New law, Jersey’s “hate crimes” a trial court impose could an period imprisonment by extended if it found a preponder ance of the evidence that the defendant acted with the group intimidate an individual or based on an impermissible bias. Id. at 469-70, 2351-52, 147 120 S.Ct. at L.Ed.2d at 442- Finding bias, that the defendant acted out of racial imposed year sentence, trial court a twelve which was two years greater than maximum for a degree second firearms reversed, possession Supreme offense. The basing Court its holding on the Due Process Clause of the Fourteenth Amend jury guarantee ment and trial of the Sixth Amendment: together, rights “taken these indisputably entitle a criminal ‘jury defendant to a guilty every determination that is [he] element the crime with which is charged, beyond he a transcript sentencing 3. The reflects that the court sentenced the petitioner as follows: judgment you, "It is the and sentence of this Court that Jessie Lee Young, custody be committed to the of the Commissioner of Correc- jurisdiction period years. tions to be confined under this for a of ten given days you already You are to be credit for 246 that have served. going suspend eight years, And Court is all but and when are released, you placed years supervised probation. are on five sir, offender, probation, you register "Part of that must as a sexual case, you are to have no contact with the victim in this Jessie sister, McGregor, and her Felicia Green. You are to take whatever officer, psychological required by your probation treatment as you pay proceedings.” are to the cost of these 2355-56, 476-77, at Id. at 120 S.Ct. reasonable doubt.’ 447. The Court added: L.Ed.2d at beyond provided that “If faces a defendant circum- is committed under certain when an offense others, loss of it is obvious that both the but not stances height- attaching offense are stigma to the liberty and the not— should ened; necessarily follows the defendant it proof of those put at the moment the State have, until protections deprived circumstances —be attached.” point, unquestionably 2360, 147 L.Ed.2d at 451. Id. at Statute, Registration of Offender Although denominated well, more; is, community great § 792 is a deal one, very broad that. notification statute (j). 792(g) seen, or register must with his As have an “offender” we authority,”4 if or one of the “supervising he she violates her by is court to do so. See enumerated statutes and ordered the State, 792(a)(6).5 in this § an offender sentenced For release, sentence, of when the means on or before the date 792(e)(l)(i).6 An § results immediate release. See sentence authority” depending meaning ‘‘Supervising varies 4. The of the term by housed or upon the sentence and where he or she is offender’s Thus, may supervising authority the Secre- supervised. the whom Services, Safety tary Department and Correctional the of the of Public court, center, sentencing the of a local detention the administrator Probation, the Institu- the Director of Paluxent Director of Parole and tion, Secretary Hygiene, and like. See of and Mental Health 792(a)(13). § "registrant” Although definition of "offender” is included within the authority register supervising required registrant and a is to with order, occurrences, given any upon without mention of a court certain 792(a)(6), appears § specific requirement a court order in triggers registration, qualifi- not the mere it is the court order that offender. cation as an 792(Z) pro- register separate misdemeanor. Section 6. Failure to is vides: knowingly provides knowingly regisler or registrant “A who fails to required by section is of a material fact as this false information 792(d), register annually years, § must for see offender ten year signing returning the verification form each sent Safety Department him or her and correction- (hereinafter 792(h)(3).7 Department”). § al Services “the See offender, registrants, required all The like send the residence, Department change written notice of his or her 792(c)(3). days change occurring. § within The registration signed statement shall be and include dated name, address, a description the offender’s of the crime for convicted, conviction, which he or she was the date of the occurred, jurisdiction in which the conviction a list of ' used, security and the offender’s social aliases number. See 792(e).8 requirements, registration Besides the the statute also con- provisions giving tains agencies, persons notice certain public. supervising authority and the must copy send statement, registrant’s and a fingerprints, photograph registrant to the local law enforcement guilty subject imprisonment of a misdemeanor and on conviction is penitentiary years in the for not more than 3 or a fine of not more $5,000

than or both.” statuses, persons registration period may 7. For in other life be for frequent registration require annually: more than "(5) ^[*] “(ii) life if: ^[*] The term of ^[*] — is: registrant sexually "1. The has been determined to be a violent predator procedures with the accordance described in subsec- (b) section; tion of this registrant "2. any The has been convicted of a violation of of the article; provisions through §§ 462 B of 464 of this or registrant previously required register ”3. The been has to (a)(2)(6), has been convicted of offense listed in or subsection (11) of this section.” 792(d)(5). sexually § predator register every days. A violent must 792(d)(4). § offender, offender, registrant 8. Where the is a non-resident child sexual sexually sexually predator, violent offender or violent in this State for 792(a)(7), employment purposes, § or educational see this information registrant’s place employment "place include the also must of or of educational institution or school enrollment.” registrant will county in or counties where the agency 792(f)(3). reside, work, § school. When the or attend See it also authority Department, is not a unit of the supervising must, day period, registration state- within that five send the required which is to maintain Department, ment 792(h)(l)(i). § The local law enforce- registry. central in a agency required, when the offender resides ment then police that has a to send the notice municipality department, municipality.9 of police department to the alia, addresses, copies of a 792(j) Section inter whom authori registrant may supervising The statement be sent.10 last ty copy registration must send a of the statement persons requested, known of certain who have in address victim, or, writing, if a specific registrant: notice about minor, parents guardian; the victim’s a witness who testi against registrant proceedings; fied court well as “any specified writing by Attorney.” individual the State’s 792(g) provisions pertaining registration Section contains state- 9. violent, sexually ments of child sexual offenders and offenders. As to former, sending Department, in addition to notice to the the local agency registration law enforcement "shall send written notice of the county county superintendent of statement to the schools in the where 792(g)(1)(h). county § tire child sexual offender will reside." See turn, superintendent, written must send notice supervision principals statement "to those of the schools within the necessary superintendent superintendent pro- considers tect the students of a school from a child sexual offender. See 792(g)(2). § sexually predators, 792(g)(3) provides: As to violent “(3)(i) Every days, agency the local shall mail a law enforcement form, forwarded, may reported which verification not be to the last sexually predator. address of a violent form, “(ii) days receiving the Within 10 after verification the sexu- ally predator sign violent shall the form and mail it to the local law agency. enforcement “(iii) days obtaining Within after a verification form from a predator, sexually agency law shall violent a local enforcement copy Department.” send a of the verification form to the 792(j)(1) Section defines what a statement consists purposes copy completed registration of this section: "a form registrant, copy photograph and a but need not include the registrant’s fingerprints.” 792(3). addition, upon request §See a from an individual containing submitting the name and address of the individual information, request and for requesting the reason the agency local law shall copy enforcement send one registration statement of each child sexual offender and each sexually may and predator registration violent send a state agency registrants ment on file with the who are neither sexually predators. child sexual offenders or More violent over, “In required addition to the notice subsection under section, (g)(1)(h) Department of this and a local law agency provide registration enforcement shall notice of a any person Department statement or local law agency may enforcement determines to protect serve public concerning registrant if specific Department or agency necessary determines that such is to protect notice 792(7)(i).11 792(6) § public.” provides: Section

“(6) Department shall release statements concerning registration or information statements may post listing on the Internet a current of each name, offense, registrant’s identifying other informa- tion, in regulations by accordance with established the De- partment.” indicated, petitioner

As was convicted of a violation of § which carries a maximum years. sentence ten He register as a ordered sexual offender as a condition of addition, probation. is, in a separate prescrib- There ing registration by persons certain convicted under certain thus, question and, circumstances. The has been asked must be answered is whether that additional requirement of registration, probation pursuant whether as a condition of statute, is, punishment. is If it it seems clear to me petitioner’s that, sentence has been enhanced therefore, he was entitled have the evidence on the basis Department agency 11. The charged and local law enforcement with establishing procedures carrying requirements out the notification 792(7)(ii). of this section. See jury decision was made evaluated which the Apprendi under the standard.12 outset, acknowledges court majority

At the that the the argues registration probation, as a condition of but ordered 792; argue, §to not as only pursuant that it was does the believed, 3, apparently registration trial court see n. that the to authority was consistent with its fashion conditions surprising, proba- That is not since conditions of probation. State, clearly punishment. tion are v. 298 Md. Spielman (“It (1984) 602, 610, 730, hardly A.2d 735 can 471 be contended restitution, pay that one who has been ordered to as a probation, subject condition of and is to of that revocation payment, for to make probation failure has not received punishment.”). petition- The trial court also that ordered view, psychological majority’s er obtain treatment. Under punishment, presumably that also is not it is because intended remedial. statute, I do Turning to the not issue with the test the take case, and in majority ultimately adopts, applies, although this the cases on the basis of which it in was formulated arose Indeed, much different contexts. I found only have one case Marchand, directly point, on see v. People Cal.App.4th 98 1056, (2002) Cal.Rptr.2d it, 120 following Supreme 687 lead, Castellanos, People Court California’s see 21 Cal.4th 785, 346, 211, (1999),13 Cal.Rptr.2d to, 88 982 P.2d 217 it had holds, event, majority registration requirement 12. The in sentence, petitioner’s does not enhance as a matter of fact. 370 716, seen, agree. Md. at A.2d 251. I do 806 at not As we have years. § maximum sentence for a violation 432 is ten That sentence any registration requirement. Consequently, does not include once it is registration punitive, imposing registra- determined that the statute is requirement pursuant punishment tion 792 is additional offense, underlying enhances ihe maximum sentence for the whatever jail imposed. the amount of actual time majority applied 13. A of the court a test that considered "whether and, not, Legislature provision punishment intended the to constitute if provision punitive whether is so nature or effect it must be punishment Legislature’s despite contrary found constitute in- tent,” apply Kennedy but declined to the multifactor test enunciated in evaluating test for applied a -version the “intent-effects” remedial, concluding an act is or that sex whether penal offender does not constitute ty meaning Supreme within the of the United States Court’s process under the due clause of the Apprendi decision Marchand, 4th Cal.App. Fourteenth Amendment. Cal.Rptr.2d Supreme at 694. The Court of California held that, post purposes, Castellanos ex facto sexual offender Cal.Rptr.2d was not punishment. significant It expressed P.2d that neither court an opinion community provisions as to the notification Castellanos, Cal.Rptr.2d statute. 982 P.2d at n. 6 (“It appear subject not that defendant is does (m) (n), provisions of section subdivisions 290.4, express opinion regarding and we no section effect, if any, application provisions of those would have Marchand, analysis.”); 1062, upon Cal.App.4th our 98 120 (“it Cal.Rptr.2d at appear 692 does not defendant here is subject public provisions to the of the sex offender Thus, registration statutes.... we need not address defen dant’s argument registration sex offender constitutes ‘obviously because carries substantial societal ”) stigma.’

II. majority asserts that courts have dis “[n]umerous registration cussed the issue of whether the and notification provisions registration of ... sex offender statutes constitute 686, 697, 233, (2002), punishment,” 370 Md. 806 A.2d 239 concluding overwhelming body judicial of this “[t]he precedent concludes that sex offender under these 697, types punishment.” of statutes is not Id. at 806 A.2d at Mendoza-Martinez, 554, 144, (1963), v. 372 U.S. 83 S.Ct. 9 L.Ed.2d 644 determining nominally penalty whether a civil should be reclassified criminal, context, applied post People as had to be in the ex facto v. Castellanos, 785, 346, 211, Cal.Rptr.2d 21 Cal.4th 88 982 P.2d 217 minority applied. which is the test a of the court would have

729 on this strong consensus that there is suggestion This misleading. issue do share certain statutes state

Although the numerous administration, characteristics, aspects of their several general com and, their particularly, requirements, their considerably. gener vary munity provisions, notiilcation Public McAllister, Laws: Wise Megan’s Stephen R. ally Pub. J.L. & 7 Kan. Folly?, Public or Ill-Considered Policy limit (1998). states example, while some For Pol’y 17 Noble, see, v. 171 enforcement, e.g., law State disclosure (1992)(At register time of 1217, 1219 P.2d Ariz. writing giving such sign a statement ing, person shall department of the by the director required information photograph fingerprint shall safety. The sheriff public copies days shall send and within three thereafter person criminal statement, fingerprints photographs safety public department within the identification section person any, place if where the police, and the chief Costello, A.2d resides); N.H. v. State (The (1994) or current address reports his her sexual offender forwards it to agency, which annually to local law enforcement name search law enforcement entry Police for the State law enforcement confidential within the system and is held being notified agencies local law community, with enforcement only on the disclosure permit the offender when of the risk of recidi an individualized assessment basis of New vism.), Jersey, Artway Attorney see State of (3rd Pataki, Cir.1996); also Doe v. see F.3d 1243-44 (2nd Cir.1997), protect necessary or as F.3d 1269-70 e.g., Cutshall concerning specific registrant, public the (6th Cir.1999), have others 193 F.3d 469 Sundquist, See, e. Internet. information on the all sex offenders’ posted - (9th Cir.2001), Otte, granted, cert. 259 F.3d 979 Doe v. g., (2002). L.Ed.2d 966 Because U.S.-, 122 151 broad permits statute registration offender Maryland’s sex for an individualized provide not disclosure but does upholding on cases assessment, majority’s reliance the risk misplaced. narrowly tailored statutes more Moreover, although many courts have reg determined that istration requirements and notification of law do enforcement punishment, not constitute far fewer have examined the closer See, issue of whether community notification e.g., does. Cas tellanos, supra, Cal.Rptr.2d 218; 982 P.2d at Mar chand, supra, Cal.App.4th 692; Cal.Rptr.2d 1248; Snider, Artway, supra, 81 F.3d at Burr v. 234 F.3d (8th Cir.2000) rule, (declining to corpus, on habeas on constitutionality community the provision the notification statute, the having the issue not been raised or court). fact, by decided In many State of the decisions by discussed majority predate the enactment of broad community provisions, notification which did not become wide spread until government the federal expressly encouraged adoption, analysis their or do not include of the issue because challenges brought yet ripe were not for consideration. for Artway, example, cited majority, the United States of Appeals Court Third Circuit declined consider whether community notification provisions of Jersey’s New sex offender statute punishment. constituted F.3d at 1248. registrant’s personal Whether information publicly would be depended available on how he Jersey’s classified under “Registrant New Risk Assess- Scale,” ment as well as on a future decision of the Prosecutor’s Office. Id. The court reasoned that notification under the statute contingency involved a speculative rendered too prospect of hardship from the denial of review. Nonethe- less, discussing and, ultimately, upholding the statute’s registration requirements, the Artway frequently court drew distinction requirements between the and the provisions, notification making registra- clear whether the tion information would publicly be made available was a significant factor in determining whether the statute was punitive.14 Contrasting provisions Jersey of the New registration requirements, with Artway court offered the follow- community notifi likely to find the have been more

Courts of a offender provisions cation sexual man permit, or provisions when those notification punitive See, date, registrant information. public broad disclosure cert. (1996), Myers, Kansas v. 923 P.2d 1024 e.g., 260 Kan. (1997), denied, 2508, 138 1118, 117 L.Ed.2d 1012 521 U.S. Kansas Sex Offend examples. Under the is one of the earlier Act, community provisions notification Registration er police inspection of offender records public authorized sex on dis contained no affirmative restrictions departments and Thus, to dis permitted newspapers it others semination. broadly they pleased. information as as seminate the community provi notification Supreme held the Kansas Court and, had a there sions of the Kansas statute effect reaching In fore, post facto law. was an unconstitutional ex Kennedy result, factors formulated in applied why challenge procedures ing explanation of the notification ripe judicial not review: hand, procedures, notification on the other involve dissemina- “The devastating potentially information to undetermined numbers tion of part private private are not citizens. Because these citizens mechanism, are how law enforcement we less certain trained state instance, study they one in the record chronicles a will react. For private citizens as of incidents of harassment at the hands number law, Washington’s notification but records no a result of the State of part We also lack incidents on the of law enforcement. concrete [petitioner]’s dangerousness evidence about what future classi- record determined, be, will classification will be fication on what facts the will be notified....” who petitioner's argument Disagreeing that the 81 F.3d at 1250. wilh empha- requirements punishment, constituted the court decided, challenge being stating was not sized that his notification follows: strong that notification would have marshals reasons "[Petitioner] devastating part ostracism that is of its effects. addition possible vigilante reprisals very design, subjects him to past employment. the mere fact of his and loss of And unlike conviction, employment question- might from an which be learned records, Megan’s notification under Law features naire or overwhelmingly past on conduct—that State’s determination —based danger community. reempha- prior We the size, offender is a future however, be, [petitionerj’s arguments that as forceful as seem ripe at this time.” of notification is not issue Id. Mendoza-Martinez, 554, 9 L.Ed.2d 644 372 U.S. 83 S.Ct. (1) an whether: the sanction involves affirmative dis (2) restraint; it a ability historically regained or has been (3) (4) scienter; requires finding it a its punishment; promote punishment- will the traditional aims of operation deterrence; (5) ap the behavior to which it retribution (6) crime; it plies already purpose is lacks an alternative to connected; rationally may it which be the statute Id., existing an appears excessive relation to alternative. 567-68, 168-69, 83 9 L.Ed.2d at 661. factor, holding registration provi-

As to first that the the punishment, Myers, sions did not constitute 260 Kan. at community 923 P.2d court the addressed provisions, concluding:

“However, provision must also we consider the K.S.A. registered that information in- open public 22-4909 spection Although in the sheriffs office. 22-4909 does not impose any requirements affirmative dissemination on the authorities, imposes anyone it no restrictions who in- on spects routinely the information. The information could be published newspaper voluntarily in the or otherwise dis- by anyone. practical seminated The effect of such unre- impossible stricted dissemination could make for the housing employment. offender to find We find that the public provision impose KSORA disclosure does an affirma- disability or public tive restraint. Unrestricted access to registered open possibility information that leaves registered subjected stigma offender will be public and ostracism.” 695-96,

Id. at 923 P.2d 1024. court promoted The also determined the statute both deterrence, explaining: retribution and an “Registration registered has obvious deterrent effect. A likely to think committing offender is more twice before person another sex offense when the knows that the local already sheriff has the offender’s on a name list. We acknowledge the statement Ursery, [United v.] States 267, 292, 2135, 2149, U.S. 116 S.Ct. 135 L.Ed.2d [518 may ... (1996) serve ], of deterrence that “the that will accom- stigma goals.” as criminal civil as well could be registered information exposure public pany find the KSORA of retribution. We viewed as a form may have both deterrent provision public disclosure However, purpose of the nonpunitive retributive effect. informing public accomplished without cannot be statute limited is in its midst. If the that a sex offender public, necessary protect to that public disclosure to its as incidental its deterrent effect could viewed then regis- public access nonpunitive purpose. Unlimited goes or retributive effect try provides deterrent beyond purpose.” such 696, 923 P.2d 1024.

Id. at court, however, scope disclo To “the excessive in key factor its information” was the registered sure of community provisions were determining that the 696-97, Recalling specter punitive. Id. at 923 P.2d Let badge punishment: the Scarlet of “that most famous Artway, 81 F.3d (quoting id. at 923 P.2d 1024 ter” outrage ... 1255,) can be no in which it was observed: “There nature, delinquencies be the against our common —whatever individual, flagrant than to forbid the outrage more —no shame; of this for as it was the essence culprit to hide his face do,” Hawthorne, The Nathaniel Scar (quoting (Random 1950)), House it held: let Letter 63-64 consid- provision must be Myers, “For KSORA’s disclosure in legislative hold that aim the punishment. We ered and that retribution provision punish was not disclosure However, purpose. we reason was not an intended great they may justified, are repercussions, despite how punish- enough the facts of this case to be considered under given to the sex public ment. The unrestricted access goes beyond and that neces- registry is excessive offender safety.” sary promote public Id. at 923 P.2d 1024. Otte, 9th found recently, supra, in Doe v. Circuit

More That stat- Registration Act. punitive the Alaska Sex Offender required ute register convicted sex offenders with law enforcement authorities and public authorized disclosure of information in the registry. sex offender Implementing regu- provided would, lations cases, that Alaska post all information from registry public for viewing print form, electronic so that it can by “any be used “for person” any purpose.” 09.050(a) (2000). Alaska Admin. Code tit. Thus, statute, like the Kansas the Alaska law allowed unre- registration information, stricted access to the regard- risk, by providing posting name, less for the sex offender’s physical description, address, address, street employer information, along conviction with a photograph, color on the Department Safety State’s of Public website on the Internet. the Mendozctr-Martinez Applying test, court held: “the effects of specific provisions of the Alaska Act provide that, proof the ‘clearest notwithstanding legisla- intent, non-punitive ture’s the statute must be classified as Ex for Post Facto purposes. Clause Four of the seven factors favor factors, this particular- result.[15] Two ly, demonstrate that the effect of this particular statute is to increase penalty provided the law at the I time Doe Doe II’s First, offenses were committed. there is the substantial disability- imposed by the Act. The provisions, which require in-person registration at a local police station registrants where provide must detailed infor- year mation four times each life the case of some defendants, annually years others, for 15 in the case extremely are disability burdensome. This is exacerbated by provisions that plaintiffs’ uncontra- dicted evidence exposes demonstrates all registrants obloquy Second, world-wide and ostracism. unlike the sex offender and notification upheld by statutes Second, Circuits, Third and Sixth by well as this Circuit Russell, in the Alaska statute is excessive relation to its non-punitive purpose. An offender cannot escape the Act’s favoring finding 15. The three factors non-punitive it was were treatment, historical being non-punitive scienter and there alternative. grasp clearly may no matter how he demonstrate that he anyone, no no how final the poses future risk and matter successfully judicial determination he has been rehabili- tated; short, statute, requirements under the Alaska relating past to disclosure of a offense are not related to the Furthermore, only to posed. applies risk the Act committing a crime offenders who have been convicted pro- that it serves retributive and deterrent ends [16] support vides additional for our conclusion that the Alaska punitive.” Hendricks, Hendricks, (citing Id. at 993-94 Kansas v. 346, 361, U.S. 138 L.Ed.2d (footnote omitted). (1997)) expressed regarding

Other courts have concern the broad registry dissemination of sex offender information. In Doe v. General, Attorney Mass. 680 N.E.2d 97 Supreme Judicial an injunc- Court Massachusetts reviewed against registra- tion enforcement that State’s sex offender provided: tion statute. The statute “Any older, person eighteen years age upon who is or age verification of his and identity, shall receive at no cost from history systems report which [criminal board] name, indicates whether an individual identified date of personal identifying birth or sufficient characteristics is a seventy- sex offender as defined section one hundred and C, eight the offenses for which he or she was convicted adjudicated, adjudica- and the dates of said convictions or Any confidential; tions. of inquiry kept records shall be however, provided, may that the records be disseminated to prosecution.” assist criminal 16. The bases on which the court determined that Alaska statute was registration obligations, specifically, retributive were the Act’s onerous reporting requirement. Requiring duration of the Act’s sex report quarterly police may offenders to to their local stations defendants, analogized, duty opined, imposed the court on other conviction, report regularly probation comply after to a officer or to supervised with the conditions of release. The duration of years applies non-aggravated even fifteen offenses. law,17 in court

Despite upheld injunc- a disclaimer the tion, observing explicit that the statute “contained no remedial adult, by regulatory purpose. Any merely presenting or identification, may registry obtain information sex offender ... from board for or for no reason at all. reason to serving disclosures under 1781 are not limited some worthy public purpose.” Turning question Id. at 99. plaintiffs registry sex offender whether disclosure sense, imposed punishment in a information constitutional rejected argument court is no the State’s there evidence disclosure, plaintiff pointing would be harmed out: exists, however, person that a no possibility

“The with registry 'will obtain remedial motive sex offender informa- plaintiffs potential it to tion reveal detriment. The community, in in plaintiff employment harm to the his or his both, information for than or from the use such other personal protection plaintiff is substantial. is Once harmed, easily it will not best remediable.” Id. at 100. process challenge

A similar concern is reflected in the due Lee, posting F.Supp.2d to Internet mounted Doe v. (2nd (D.Conn), aff'd, Safety, Doe v. Pub. 271 F.3d 38 Dep’t —Doe, Cir.2001), granted Dep’t Safety cert. Conn. Pub. (2002). U.S.-, 122 S.Ct. 152 L.Ed.2d 1020 Pursuant act, registry registry to Connecticut’s sex offender information required to be made available a number of hours; ways: registry during regular at the central business hours; agency during local law enforcement offices business addition, Department of Public over Internet. Safety annually regis- must remind the State’s media that the provided: 17. The statute also reports persons making inquiries warning "All shall include a regarding penalties registry the criminal for use of sex offender engage illegal information to commit a crime or to discrimination threatening of an offender and the harassment provisions chapter commit a crime under the of section four of two seventy-five.”

hundred and to access on how information them with provide try exists is unca- registry information containing the database it. The of individual is, on the basis not differentiated that tegorized, process due plaintiffs found the The court dangerousness.18 meritorious, explaining: claim claim because the process on the due prevails

“Plaintiff to chal- opportunity any him with provided not has State in by his inclusion implied allegation, lenge stigmatizing dangerous is a sex that he registry, available publicly is plaintiff contends allegation, which implied The offender. registry, nature of the false, arises from the undifferentiated registrants nondangerous are and dangerous in which no information is single classification grouped dangerousness. Be- regarding any registrant’s provided are registrants some no doubt that there can be cause sug- falsely single classification Connecticut’s dangerous, a threat registrants are nondangerous that gests nondangerous falsely stigmatizing In addition to safety. under legal status alters their registrants, the CT-SORA law.” state Haun, (footnote omitted). v. But Femedeer see

Id. at 62 (10th offender Cir.2000), the Utah sex (upholding F.3d 1244 statute, which, Alaska like the notification registration registry accessi statute, sex offender makes the state’s entire Internet). Id. at 1247-48.19 on the ble

III. gleaned analysis adopts the “intent-effects” majority Ursery, 518 U.S. Hendricks and United States from 2135, 2147, which 135 L.Ed.2d 116 S.Ct. court, system “By According [it] mean[t] undifferentiated 18. Connecticut’s, notifica places registrants in one class for all like which attempting individualized purposes offender’ —without tion —‘sex of reoffense. One dangerousness likelihood of their assessment risk assess systems individualized has termed without commentator Lee, F.Supp.2d at 59 n. 3. registries.” ‘compulsory’ Doe v. ment statute, em- does not include Utah database the Alaska 19. Unlike addresses. See id. at ployer names and incorporates the Mendoza-Martinez applica factors. its Mendoza-Martinez factors to tion of the Maryland’s Regis statute, tration of majority Offenders concedes that it im poses an restraint registrants, affirmative on stating that “particularly light community provisions ... [b]eing labeled as a sexual community offender within the highly can be stigmatizing carry and can potential social ostracism.” 370 Md. at 806 A.2d at 249. The majority also concedes that applies the statute to behavior id., see crime, already acknowledges it Id. promotes deterrence. 806 A.2d at 250. Nonethe less it concludes that the statute is “not excessive relation id., purpose,” its remedial concluding “serves the im portant nonpunitive goal alerting law enforcement and the community presence predators sexual may who Id. reoffend.” It reasons that provisions the statute’s “are narrowly goal tailored to effectuate protection the of the public from sex offenders.” Id.

I pressed am hard to discern how majority suggest the can narrowly the statute is tailored. Unlike the statutes in most involved of the cases upon by relied majority, the Maryland’s registration sex offender permits statute broad public registration disclosure of information. In addition to dissemination of registration the statements to local enforce- agencies, dissemination, ment for further in the case of certain registrants, County to the superintendents, school and to the Department as depositary, the Central supervising the author- ity a copy must send statement to certain persons, including victim, a witness who against testified registrant, “any and specified individual in writing by the See Attorney.” § State’s 792(j)(3). addition, In it must meet requests 792(j)(5)(i)(l) § under may comply and with those 792(j)(5)(i)(2). § under Department The local law agency, they enforcement when it to necessary determine be protect public, required is give of a registra- notice tion anyone statement they may determine serve to protect concerning specific See registrant. 792(7)(i). And, “[tjhe § seen, as we Department have shall concerning reg- or information registration statements release on Inter- may post public and istration statements offense, name, and registrant’s listing of each a current net regulations with information, in accordance identifying other 792(6). During the Department.” by the established decision, begun posting has Department this pendency This information information on the Internet. available, name, exact picture registrant’s includes —if offense, of his address, description category of and home crime. fact, it is community notification. very

This is broad found provisions broad notification reminiscent Otte, Myers reasoning of Myers and Otte. The our to this case. While therefore, equal with force apply of the invalidat- may so broad as either statutes statute not be any other cases, to them than to in those it comes closer ed which I am or of to which has been referred the Court Haun, supra, Femedeer aware, whose reason- save one: persuaded. I am not ing, simply Circuit, I am and the 8th Supreme Kansas Court

Like the imposes an Maryland offender statute sex satisfied promotes retribution disability registrants, on the affirmative deterrence, to its is in relation remedial excessive conclusion is the breadth purpose. Critical to this It is that which causes the community provisions. recognizes, majority As the disability affirmative or restraint. Supreme registration. an Court impact deterrence however, correct, recognizing in that broad is of Kansas a retributive community may give the statute virtually no on the And are restrictions effect. when there statements, is there little of the dissemination I effect, of the statute. relation, to remedial the test,”20 hold, as does the applying the “intent-effects would assume, enacting deciding legislative the that the intent 20. I without punilive, It was not but remedial. sex offender noted, however, suggest significant indicia that that there are should be out, points was codified in contrary. petitioner the statute the As the Otte, majority, adopting the of reasoning Myers and § punitive. 792 is

In judice, petitioner’s the case sub classification as an solely offender was governed by the definition of “offender” 792(a)(6), only which turned on his conviction for an enu- crime, involving merated a age victim under eighteen the and the fact that the court registration. ordered the We have idea, judge no because the trial did not an explicit make record, finding on the as to why petitioner was ordered to register may as an offender. It have been because of the age, victim’s may other, but it have for been some less obvious reason. All know we for sure is that trial sought court impose as a of probation condition petitioner register event, as a sex offender.21 whatever the basis for the requiring petitioner court’s order register, I submit that proved beyond basis should have been a At reasonable doubt. very least, that would consist of the age. victim’s I would judgment reverse the of the Court Special Appeals.

Judge joins ELDRIDGE expressed. views herein the criminal code and recodified in the procedure criminal code. Also legislative history, great pains because sponsors were taken its post challenge, insulate the statute from an supportive ex facto aof punitive. statute that is require proof age person Section 432 does not of the trans- ported petitioner as an element very crime. The well could have jury been convicted even if the believed the victim was older or Thus, accepted thought his defense that he she was older. there is petitioner's argument force that whether the victim was under eighteen jury disputed, largely was before the objective, albeit fact in this case. The determination of that ''fact” was not submitted to the jury beyond Although jury decision reasonable doubt. convict- petitioner transporting person ed purposes prostitution, for tire jury presented conflicting with person’s age evidence as to that presented jury issue was never finding for a of fact.

Case Details

Case Name: Young v. State

Court Name: Court of Appeals of Maryland

Date Published: Aug 30, 2002

Citation: 806 A.2d 233

Docket Number: 56, Sept. Term, 2001

Court Abbreviation: Md.