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State v. Druktenis1/30/2004
sm." § 29-11A-2(A)(1) (1999). However, there exists no formal written legislative history in regard to this factual determination. SORNA does not indicate what the Legislature considered in making such a determination. Therefore, we do not know what was considered.
With respect to registration and notification, the approach in SORNA, like that in sex offender laws in several other states, is labeled a "compulsory approach." In other words, registration is required and notification is triggered without any procedure for a prior hearing to determine existence or gradations of recidivism risk. See Logan, supra, at 1175; Helman v. State, 784 A.2d 1058, 1065 n.2 (Del. Super. Ct. 2001) (listing nineteen states providing for compulsory registration). Balancing the risk of harm to citizens against the potential for harm to offenders who may be able to present evidence that they are not a likely recidivist or a current danger to society, SORNA represents a legislative choice to err on the side of protecting society. No slack exists with respect to sex offenders who might be able to present evidence that they do not "pose a significant risk of recidivism," § 29-11A-2(A)(1), or are "not likely to be currently dangerous." Connecticut v. Doe, 123 S. Ct. at 1164.
Thus, SORNA provides no individualized risk-assessment hearing on the question of recidivism. Presumably, the unfairness to any who might present evidence that they do not pose a significant risk of recidivism is, in the Legislature's view, outweighed by the risk that citizens may be harmed notwithstanding such evidence. SORNA's message is that no chance should be taken, even were a sex offender able to present evidence in an individualized hearing that he or she is integrateable into society and neither a recidivist nor a current danger, since the risk of harm to society, no matter what the evidence, is still too great if exceptions were permitted, a risk the Legislature simply refuses to take.
The New Mexico Appellate Public Defender, as Amicus Curiae, indicates that Megan's Law "was enacted in a matter of weeks" after the occurrence of the sex offense against Megan and "was never subjected to any kind of scientific review, nor were the state and federal statutes that flowed from it." Amicus further states that several studies contradict those presented to Congress that "suggested that as a group, sex offenders are significantly more likely than other repeat offenders to re-offend with sexual or other violent crimes, . . . that this tendency persists over time," and that "recidivism rates do not appreciably decline over time" with an offender's increasing age. Amicus finds even more compelling articles that, according to Amicus, indicate "widespread disagreement over whether, in fact, sex offenders as a criminal sub-group manifest higher recidivism rates than other criminal actors."
The State argues in favor of the standard of review and scrutiny generally given to statutes under constitutional attack, which, the State contends, are that we "must give deference to the legislative findings and presume [SORNA] is constitutional." The State also relies on articles, and in addition points to language in cases indicating that sex offenders are dangerous. See, e.g., Smith v. Doe, 123 S. Ct. at 1153 ("Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class."); see also McKune v. Lile, 536 U.S. 24, 32 (2002) ("Sex offenders are a serious threat in this Nation."); Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (199
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