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State v. Druktenis1/30/2004
and reputation interests, has been violated.
III. The Ex Post Facto Claim
Defendant contends that SORNA's retroactive application violates the constitutional prohibitions against ex post facto laws contained in Article II, Section 19 of the New Mexico Constitution and Article I, Section 10 of the United States Constitution. "The Latin phrase `ex post facto' implicates in its literal meaning any law passed `after the fact.' Generally, this means `that the constitutional prohibition . . . applies only to penal statutes which disadvantage the offender affected by them.'" State v. Nunez, 2000-NMSC-013, 112, 129 N.M. 63, 2 P.3d 264 (quoting Collins v. Youngblood, 497 U.S. 37, 41 (1990)).
We note, in passing, that the issue of whether retroactive application of sex offender registration and notification requirements violates the federal Ex Post Facto Clause has been considered by many jurisdictions. See generally Carol Schultz Vento, Annotation, Validity, Construction, and Application of State Statutes Authorizing Community Notification of Release of Convicted Sex Offender, 78 A.L.R.5th 489 (2000); Licia A. Esposito, Annotation, State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities, 36 A.L.R.5th 161 (1996), superseded by Vento, supra.
In Smith v. Doe, the United States Supreme Court addressed the issue of whether Alaska's version of Megan's Law violated the Ex Post Facto Clause of the United States Constitution. 123 S. Ct. at 1145-46. Alaska's law applied its registration and notification components retroactively. Id. at 1145. The law required sex offenders to provide certain information through registration with the department of corrections or local law enforcement officials and to continue to regularly provide verification of that information for a period of either fifteen years for a single, non-aggravated offense, or life for an aggravated offense. Id. at 1145-46. Specifically, the Alaska statute required the sex offender to "provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access, and post-conviction treatment history." Id. The information was given to the Alaska department of public safety and placed in a central registry, and the sex offender's name, aliases, address, photograph, physical description, motor vehicle information, place of employment, date of birth, crime, and sentence, were thereby available to the public. Id. at 1146. Alaska made most of this information available on the Internet. Id.
The Court analyzed whether the Alaska sex offender law was "so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Id. at 1147 (alteration in original) (internal quotation marks and citation omitted). Then, using as a framework several of the factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), factors that are "neither exhaustive nor dispositive," the Court set out a detailed analysis of the purpose and effect of the Alaska law. Smith v. Doe, 123 S. Ct. at 1149-54 (internal quotation marks and citation omitted). Particularly, the Court considered "whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose." Id. at 1149. The Court concluded that "the intent of the Alaska Legislature was to create a civil, non-punitive regime," id., and that the
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