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State v. Druktenis1/30/2004
on are to inform the public for its own safety, not to punish or stigmatize and ostracize the offender. See Smith v. Doe, 123 S. Ct. at 1150 (stating that the stigma is not based on such conduct as colonial infliction of public disgrace, but "from the dissemination of accurate information about a criminal record, most of which is already public," and that " ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment"). "Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation." Id.
The United States Supreme Court held that " he Ex Post Facto Clause does not preclude a tate from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences." Smith v. Doe, 123 S. Ct. at 1153. We agree with much of the underlying reasoning in Smith v. Doe and we think the holding is applicable to Defendant's ex post facto attack upon SORNA. Our Legislature's "regulatory means chosen [to address the problem] are reasonable in light of the non-punitive objective." Id. at 1154.
Virtually all federal circuits and state jurisdictions considering this issue have rejected the argument that retroactive application of sex offender statute registration and notification requirements violates constitutional ex post facto prohibitions. See, e.g., Russell, 124 F.3d at 1089 (stating, in ex post facto context, that "registration provisions have overwhelmingly been sustained as constitutional by other courts" and citing cases); Hyatt v. Commonwealth, 72 S.W.3d 566, 571-72 (Ky. 2002) (stating that registration and notification requirements "across the nation have consistently been held to be remedial measures, not punitive," and that " ost state and federal courts have determined that sex offender classification and registration, including community notification, does not violate the ex post facto provisions of either the state or federal constitution"); Meadows v. Bd. of Parole & Post-Prison Supervision, 47 P.3d 506, 510 n.11 (Or. Ct. App. 2002) (stating that " he federal circuits appear to be . . . nearly unanimous in upholding sex offender registration laws against ex post facto challenges"); Bollig, 605 N.W.2d at 203 (stating that " f the states that have addressed whether registration of sex offenders is punishment, all but one have answered in the negative," listing cases from twenty-one states in a footnote).
For the foregoing reasons, and because Defendant has not overcome the presumption of constitutionality on this issue, we hold that retroactive application of SORNA does not violate the Ex Post Facto Clause of the United States Constitution. See Cook, 700 N.E.2d at 576 (stating that the presumption of constitutionality in an attack on a law as violating the Ex Post Facto Clause requires a showing "beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible," and " hat presumption of validity of such legislative enactment cannot be overcome unless . . . a clear conflict" exists (internal quotation marks and citations omitted)). In our view, the seeming unfairness of retroactive application is lessened by the "irresistible conclusion that if community safety was [a legislature's] objective, there was no justification for applying these laws only to those who offend or who are convicted in the future, and not applying them to previously-convicted offenders." Id. at 578.
Furthermore, we see no basis, and Defendant offers none, on which to grant greater protection under Article II, Section 19, our State Constitution's ex
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