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State v. Druktenis1/30/2004
course, the compelling interest of public safety and the prerogative of the Legislature to establish a reasonable protective bright-line law must be carefully considered. Our Legislature has "broad latitude in experimenting with possible solutions to problems of vital local concern." Whalen v. Roe, 429 U.S. 589, 597 (1977). SORNA does not automatically fall merely because the Legislature did not lay out, or because the State has not presented, underlying ground work for the Legislature's recidivism finding. Nothing in the United States or New Mexico Constitutions proscribes legislative action merely because the Legislature's conclusions or assumptions are not underwritten by conclusive empirical or statistical data. See id. at 597-98 n.21 (discussing constitutionality of state statutory patient identification security provisions based on underlying assumption of deterrent effect on potential violators). Like the United States Supreme Court, our New Mexico courts do not "require a legislature to articulate its reasons for enacting a statute." FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993). We acknowledge some "legislative need for approximation in choosing the means of serving" the ends sought. Tribe, supra, § 16-4, at 1446. A legislature's "resort to somewhat overinclusive classifications is legitimate as a prophylactic device to insure the achievement of statutory ends." Id. at 1450.
We in fact doubt the usefulness of weighing and balancing the plethora of contradictory and inconclusive legislative facts that can be offered by parties on the complex question of sex offender recidivism. The question reduces simply to whether a particular convicted sex offender who faces the long-term dissemination of current residence and place of employment should be permitted to introduce personal psychological or other personalized scientific expert witness evaluations regarding recidivist proclivities and dangerous propensities in order to attempt to escape the notification provisions. This question is what creates an issue as to SORNA's vulnerability.
With all the foregoing observations in mind, we move on to a discussion of Defendant's claims of a protected liberty interest and its abridgement. With respect to SORNA, we do so on a clean New Mexico slate. Defendant's reliance on State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177, which he suggests requires individualized sex offender assessment under SORNA, is misplaced. In Herbstman, the defendant pled guilty to criminal sexual penetration through force or coercion. Id. 3. If convicted, the defendant was required under SORA to register, and the court was required under SORA to give written notice to the defendant that he was required to register. Id. 6, 18; see § 29-11A-7 (1995). The district court entered a conditional discharge order. Herbstman, 1999-NMCA-014, 7. The defendant was placed on probation following a guilty plea but without an adjudication of guilt pursuant to our conditional discharge statute, NMSA 1978, § 31-20-13 (1994). Herbstman, 1999-NMCA-014, 1, 11. On appeal, the defendant argued that, in construing the conditional discharge statute and SORA, the defendant did not have to register as a sex offender under SORA. Id. 16-22. The State argued that this result would override the Legislature's finding that sex offenders pose a significant risk of recidivism to society. Id. 22.
The district court in Herbstman was unpersuaded by the State's argument. The district court determined that the conditional discharge was not a "conviction" under SORA and, therefore, the court was not required to give notice to the defendant that he would have to register as a sex offender, determinations affirme
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