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State v. Druktenis1/30/2004
ers concerns of deprivation of individual liberty and impairment of the exercise of personal rights, as well as diminishment of the humane view that those who commit crimes and pay their debt to society and who are not considered a continuing or current danger to society should be allowed, if not encouraged, to integrate into society as lawful and productive citizens as opposed to being treated as lepers and ostracized from society.
Laws passed by our Legislature in years past indicate this concern. The view that criminal offenders, including sex offenders, should be given the opportunity of rehabilitation through pursuit of employment is embedded in the following legislative finding contained in the Criminal Offender Employment Act, NMSA 1978, §§ 28-2-1 to -6 (1974, as amended through 1997) (COEA).
The legislature finds that the public is best protected when criminal offenders or ex-convicts are given the opportunity to secure employment or to engage in a lawful trade, occupation or profession and that barriers to such employment should be removed to make rehabilitation feasible.
§ 28-2-2. This finding "makes clear the legislative intent to encourage the rehabilitation of criminal offenders by removing barriers to their employment." N.M. Bd. of Pharmacy v. Reece, 100 N.M. 339, 341, 670 P.2d 950, 952 (1983). Indeed, one part of the COEA provides that " ompletion of probation or parole supervision or expiration of a period of three years after final discharge or release from any term of imprisonment without any subsequent conviction shall create a presumption of sufficient rehabilitation for purposes [described in the COEA]." § 28-2-4(B).
Another statute, the Caregivers Criminal History Screening Act, NMSA 1978, §§ 29-17-2 to -5 (1998, as amended through 1999), which restricts the employment of sex offenders as caregivers, § 29-17-5(D)(4), provides for an administrative hearing as to risk of harm and fitness for employment. § 29-17-5(F). This Act also reflects sensitivities to confidential information, making its disclosure a crime, § 29-17-5(I), and, sensitivities to privacy, prohibiting release of arrest record information. § 29-17-15(J).
Although SORNA's registration and notification requirements primarily have a remedial purpose and effect, and constitute rational, reasonable protective devices, it nevertheless seems offensive to our traditional and fundamental concepts of individual justice and liberty to net an entire class of convicted persons, even sex offenders, in a broad sweep for long-term exposure to the public as probable repeat sex offenders, giving none who can prove to be the exception any chance to escape. In that vein, we cannot help but note that, although the United States Supreme Court in Smith v. Doe had little problem determining that registration and notification were remedial and not punitive under an ex post facto analysis, in the recent case of Lawrence, 123 S. Ct. 2472, it held sodomy proscriptions unconstitutional under the Fourteenth Amendment. The Supreme Court noted the adverse effect of sex offender registration in various states to which a sodomy conviction would subject persons convicted of sodomy, "underscor the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition." Id. at 2482.
If we are to be vigilant in the protection of individual liberty, certainly we should have more than a passing concern when the effect of government action is to publicly brand a convicted person who has served out his sentence a current and continuing danger to society, one who will likely strike again. The gut concern is whether there exist some who should be gi
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