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State v. Druktenis1/30/2004
defendants were unable to show "that the effects of the law negate Alaska's intention to establish a civil regulatory scheme." Id. at 1154. Accordingly, the Court determined that the retroactive application of Alaska's sex offender law did not violate the Ex Post Facto Clause. Id.
In another context, our New Mexico Supreme Court referred to the Mendoza-Martinez framework as "the test" in determining whether a statute is intended as punitive rather than remedial. See One (1) 1984 White Chevy, 2002-NMSC-014, 11 (citing Hudson v. United States, 522 U.S. 93, 99-100 (1997), as "describing the test for determining whether a statutory scheme created a civil remedy or criminal penalty"). We applied the Mendoza-Martinez framework in State v. Kirby, 2003-NMCA-074, 27-39, 133 N.M. 782, 70 P.3d 772, cert. denied, 133 N.M. 771, 70 P.3d 761, to analyze the double jeopardy effect of a civil penalty in New Mexico's Securities Act.
The specific Mendoza-Martinez factors are:
1) whether the sanction involves an affirmative disability or restraint;
2) whether it has historically been regarded as a punishment;
3) whether it comes into play only on a finding of scienter;
4) whether its operation will promote the traditional aims of punishment--retribution and deterrence;
5) whether the behavior to which it applies is already a crime;
6) whether an alternative purpose to which it may rationally be connected is assignable to it; and
7) whether it appears excessive in relation to the alternative purpose assigned.
Doe I v. Otte, 259 F.3d 979, 986-87 (9th Cir. 2001) (quoting Mendoza-Martinez, 372 U.S. at 168-69), rev'd on other grounds by Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140. Many other courts have employed the Mendoza-Martinez factors. See, e.g., Femedeer v. Haun, 227 F.3d 1244, 1249-53 (10th Cir. 2000); State v. Noble, 829 P.2d 1217, 1221-24 (Ariz. 1992) (en banc); State v. Mount, 78 P.3d 829, 836-41 (Mont. 2003); State v. Ward, 869 P.2d 1062, 1068-74 (Wash. 1994) (en banc). But see Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1261-67 (3d Cir. 1996) (preferring not to apply Mendoza-Martinez factors, but to apply a three-pronged test of (1) actual purpose, (2) objective purpose, and (3) "whether the effects . . . or `sting' . . . of a measure is so harsh `as a matter of degree' that it constitutes `punishment'"); E.B. v. Verniero, 119 F.3d 1077, 1093-1105 (3d Cir. 1997) (elaborating on the Artway three-pronged analysis).
We have no doubt that our Legislature's intent in enacting SORNA was to enact a civil, remedial, regulatory, non-punitive law. In regard to whether the effects of the law negated that intent, looking at the Mendoza-Martinez factors, these conclusions are obvious: the provisions of SORNA do not involve affirmative disability or restraint; have not historically been regarded as punishment; do not come into play only on a finding of scienter; only incidentally, if at all, promote traditional aims of retribution and deterrence; and have a rationally connected, non-punitive purpose. In our view, that SORNA applies only to behavior that is already criminal is not a significant factor. Still, common sense tells us that the combination of registration and notification can have harsh consequences on sex offenders. Thus, the remaining question under Mendoza-Martinez is whether SORNA's combination of registration and notification provisions are excessive as they relate to its public safety purpose. See Smith v. Doe, 123 S. Ct. at 1149, 1152-53.
Various courts have recognized that a sex offender can suffer adverse consequences, including employability p
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