Montana Supreme Court: ‘Retroactive’ punishment for sexual, violent offenders is unconstitutional

Randall Menges has technically been a free man since 2015 – that’s when he completed his sentence in Idaho.

That seven-year sentence in Idaho was for violating a ban on homosexual sex, even though court records show it was a consensual act between two minors.

Even though homosexual sex has since been decriminalized, Menges wanted to put the incident in the past since it happened 30 years ago. However, when he moved to Montana and restarted his life, the state continued to insist that he register as a sexual offender, even though he completed his sentence and even experts argue he presented little, if any, danger. For example, the court record at the time indicated that the sex was consensual, but the act was illegal.

He had to register as an offender for having consensual sex in Idaho. Now, he’ll reclaim his life.

Menges was granted some modicum of relief when federal court Judge Dana L. Christensen ruled that even though Montana Attorney General Austin Knudsen’s office insisted that he be placed on the register, thereby making it nearly impossible to find employment or housing, the state had no rational basis for keeping Menges on the Sexual and Violent Offender Registry.

Menges is one of several cases that has raised the issue of whether requirements for sexual or violent offenders are legal, especially when those punishments are applied after a person has been sentenced, and in some case, has completed it.

In court and previously, the Montana Attorney General’s Office and the state’s Department of Justice insisted that offenders, some who, like Menges, had finished their sentences years ago, still be kept on the Sexual and Violent Offender Registry, or the SVOR. Meanwhile attorneys for those previously convicted argued that the state has transformed a court sentence into a life sentence.

Recently, Montana’s highest court, the Montana Supreme Court has taken up the issue, centering on whether the Legislature and the departments of justice and corrections can mandate that offenders stay on the registry even though it may not have been part of their original court-ordered sentence. In other words, offenders said that the state of Montana had been allowed to change their sentence without due process.

The Montana Department of Justice was contacted for this story, but it did not respond to requests.

In a 5-to-2 decision, the Montana Supreme Court ruled that how the state was applying the rules of the sexual and violent offenders registry retroactively was not lawful, and rolled back parts of the law that govern how the public is notified of the offenders.

The case that went to the Montana Supreme Court focused on Richard Hinman, a Butte man who had been convicted of sexual assault in 1994 and had served his sentence. At the time he was sentenced, he would have been required to maintain registration for 10 years, with annual verification through mail.

However, in the years following his sentencing, the Montana Legislature revised the laws governing the registry several times, including making more onerous requirements apply retroactively to all previously convicted registrants. When Hinman was charged in 2019 for failure to register, he argued that those should be dismissed because they amounted to an unconstitutional ex post facto, or after-the-fact, punishment for an earlier crime.

Appellate attorney Kristina Neal of the Montana Public Defenders Office handled the appeal for Hinman and described the difficulty her client faced.

“He couldn’t establish a new beginning,” Neal said. “It was changing the rules after the fact, and those changes in the rules were so great that it created a new punishment. It was essentially a life sentence.”

The Montana Supreme Court ruled that the Sexual and Violent Registry is a punishment – even as attorneys for Montana argued it was not punitive, merely just a public list. However, the high court said the registry was more than a list, it was a punishment with heavy social consequences, and the Legislature could not change the law and make it apply to “defendants whose convictions predate them.”

State, federal constitutions factored into court’s decision

Justice Laurie McKinnon, who authored the majority opinion for the full court, said the Montana and federal constitutions factored in the decision, because they both outlaw after-the-fact punishments.

“It is one thing to have your already-public criminal record made more accessible and to periodically update your address with the records keepers,” McKinnon wrote, “It is another to be placed under a probationary surveillance system in perpetuity which is designed to facilitate social ostracism.”

The court found that changes made in 2007 and 2013 fundamentally changed the way Montana handles the sexual offender registry. For example, sexual offenders must now appear in-person for periodic verification, as often as every 90 days, And the offender must report any change in employment or address within three days in person to law enforcement. Furthermore, any offender who leaves their home county and is gone for more than 10 days must re-register at the new county.

“There is simply no question that these rules place affirmative physical restraints on SVOR registrants,” the court said. “Requiring such regular in-person contact with law enforcement upon any change in address, work, school or travel is akin to being place on permanent probation, and the court concludes that these provisions have an effect like punishment.”

The court also pointed out that there’s little evidence to suggest that offender registries curb recidivism, but that states like Montana have added to the requirements of them, including requiring data such as DNA samples and information about the vehicle the offender drives.

“On balance, faced with the unclear efficacy of the registry at achieving its aims and the greatly broadened scope of its burdens, we can no longer conclude that SVOR’s expanded collection and dissemination of information is narrowly tailored to the scheme’s public protective purpose,” the court said.

Neal, the attorney for Hinman, said the Supreme Court wrestled with a similar challenge that the larger public may encounter when dealing with the subject of sexual or violent offenders.

“Is it being done to report or done as a stigma?” she said.

The court’s opinion did not change the legality of the new requirements enacted by the Legislature, nor does it prohibit them from being placed on offenders who are convicted moving forward. Rather, the court’s decision pertains to those who were sentenced under a different set of rules, laws or circumstances.

“Under our constitution, citizens have the right to be free from retroactive punishment,” the decision said. “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.”

Neal praised the high court for its decision, saying it clarified what was essentially sending mixed messages: That you can serve a sentence, but never finish serving time.  The decision during the oral arguments of the court was lively, held during the time of COVID-19, Neal said.

She said waiting 15 months for a decision was nerve-wracking, but it also demonstrates how the Montana Supreme Court justices wrestled with the issue.

“It may gives a bit of a signal at how the court looks at things with respect to that right of privacy,” Neal said.

She said calling Hinman to tell him the news was a relief.

“There was relief and vindication. Now, he can move forward with his life,” Neal said.

Justices James Jeremiah Shea, Dirk Sandefur and Ingrid Gustafson agreed with McKinnon, while Chief Justice Mike McGrath wrote a concurring opinion.

Justice Jim Rice authored a dissenting opinion which Justice Beth Baker joined.

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