Montana has joined a small but growing list of state supreme courts that have ruled that their states’ registries are punitive and cannot be imposed retroactively.   Selected excerpts:

“A growing body of research into the effectiveness of sex offender registries has cast significant doubt on their capacity to prevent recidivism.”  And “the burdens and intrusiveness of SVORA have increased substantially through the subsequent amendments.”

“We conclude that the SVORA structure in place since 2007 is punitive and therefore cannot apply retroactively under the ex post facto clause. Unlike the pre-2007 SVORA, the law today places onerous, life-long affirmative restraints on registrants that significantly hinder their liberty and deprive them of privacy. These burdens and the scope of information collected are excessive in relation to the civil regulatory goal. Criminal conduct is undisputedly the trigger for the registry requirements, and the registry itself, by design, implicates a host of collateral consequences and encourages social stigma. These characteristics are emblematic of criminal punishment.”

“Under our constitution, citizens have the right to be free from retroactive punishment. If the people, through their legislature, wish to create harsh and long-lasting consequences for certain crimes, they may do so, but it is unconstitutional to reach back years or decades and alter the punishments from previous convictions or retroactively punish conduct that was once lawful. By amending SVORA to create a punitive scheme of harsh and lifelong consequences for sexual offenses, the State created a structure that it can only constitutionally apply to convictions in a prospective manner.”

“We hold that SVORA, as amended since 2007, is punitive in nature. The requirements brought on by those amendments cannot be retroactively applied to defendants whose convictions predate them.”


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