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Thursday, June 23, 2016

RELIEF FOR SEX OFFENDERS RETROACTIVELY ON THE NEW HAMPSHIRE SEX OFFENDER REGISTRY

Effective June 6, 2016, in New Hampshire, Tier 2 and Tier 3 sex offenders who were convicted before 1992 have a clear process by which they can seek to be relieved of sex offender registration requirements.

 

NH SENATE BILL 468

On June 6, 2016 Governor Hassan signed Senate Bill (SB) 468. SB 468 provides that any “tier II or tier III offender who was convicted prior to the establishment of the sex offender registry may petition the court to be relieved from the registration requirements  . . .” It appears that the Legislature believes that 1992 is the year in which the sex offender registry was established. This means that tier 2 and tier 3 offenders who were convicted prior to January 1, 1993 can file a petition to be relieved of the registration requirements of the NH Sex Offender Registry.

SB 468 is the New Hampshire Legislature’s response to the New Hampshire Supreme Court’s decision in John Doe v. State. In Doe the Court decided that certain aspects of the NH Sex Offender Registry violate the constitutional prohibition against retrospective and ex post facto laws. In other words lifetime sex offender registration is an unfair punishment for some former sex offenders convicted before the registry laws were enacted. However the Court did not provide clear guidance for a process for relief. In fact the Court strongly suggested that the legislature provide a process. SB 468 is the result.

The relief available under SB 468 is valid in New Hampshire only. If an offender moves to a different state he/she must still follow federal law and the laws of the state to where the offender moves.

THE SB 468 PETITION

An offender seeking relief under SB 468 must file a petition for relief in the Superior Court where the most recent predicate conviction occurred, except if the most recent predicate conviction occurred in another state or jurisdiction, the petition shall be filed in the county where the petitioner resides. A petition for relief starts a civil proceeding before the court. A petitioner must pay the required filing fee. As with all civil actions the petitioner is responsible for the payment of his or her own attorney fees. The court will not appoint counsel.   

The petition must specify the following information:

  • Petitioner’s name
  • Current address
  • Information about each conviction requiring registration, including the nature of the offense
  • Sentences imposed
  • Jurisdiction and court of conviction

Each petition must be accompanied by the following:

  • Certified copy of the petitioner’s criminal record from each jurisdiction where required to register
  • A risk assessment prepared by a qualified psychiatrist or psychologist at the offender's expense, which indicates that the petitioner is not a danger to the public and no longer poses a risk sufficient to justify continued registration.

THE SB 468 PROCESS

Relief from registration is not a foregone conclusion even if the petitioner has provided all of the information required by the law. The court must hold a hearing and allow input from the state and victims. Before granting any petition for relief the Superior Court is required to:

  • Hold a hearing on the Petition
  • Provide notice of the hearing at least 60 days prior to the hearing to the county attorney, the department of safety sex offender unit, and the department of corrections.
  • The county attorney shall use reasonable efforts to notify the victim or victim’s family. 

At the hearing on the petition for relief the Court must:

  • Allow the victim to appear either personally or in writing to express his or her views concerning the offense, the person responsible, and the need for maintaining the registration requirement.
  • Consider the statements of the victim when making a decision regarding the petition.      

WILL MY SB 468 PETITION BE GRANTED?

There is no guarantee that the court will grant a petition even if the petitioner has provided all of the information required by the law and has been of good behavior. The ultimate determination that the court must make is whether the petitioner is no longer a danger to the public and no longer poses a risk that justifies continued registration. The Court may grant the Petition for relief if:

  • The offender has not been convicted of any subsequent offense requiring registration.
  • The petitioner has successfully completed any period of supervised release, probation, or parole,
  • The petitioner has successfully completed an appropriate sex offender treatment program as determined by the court
  • The petitioner has demonstrated that he or she is no longer a danger to the public and no longer poses a risk sufficient to justify continued registration

If the Court denies the petition for relief the petitioner may not file another petition for 5 years.

What If I Was Convicted After January 1, 1993?

The amendments contained in SB 468 apply to any Tier 2 or Tier 3 offenders who were convicted “prior to the establishment of the sex offender registry.” The legislative history suggests that the Legislature was referring to legislation establishing the registry in 1992. See 2016 House Calendar 24, p. 7. However, the statute governing the sex offender registry was repealed in 1996 and a new statute was enacted. Following that the statute has been substantially amended over time. A good history of the amendments to the statute is contained in the John Doe Case. Persons who were convicted after January 1, 1993, should not shy away from filing a petition and seeking relief similar to that which the Court provided to John Doe.

Do I Need A Lawyer To Seek Relief?

As with any civil action you are not required to hire a lawyer to seek relief under the amendments contained in SB 468. However, it is highly advisable that you hire a lawyer. In hiring a lawyer you should seek out someone who is experience with sex offense cases and with the New Hampshire Sex Offender Registry.

The criminal defense lawyers at Brennan Lenehan are highly skilled and experienced in these areas of the law.

Our Criminal Defense Team Can Help You Achieve Relief from the Requirements of Retroactive Sex Offender Registration

Mike Iacopino, senior partner at Brennan Lenehan, has more than 30 years of criminal defense experience. He has represented hundreds of individuals charged with sex crimes. He serves as the Co-Chair of the Sex Offender Policy Committee for the National Association of Criminal Defense Lawyers. He has testified before the New Hampshire Legislature about sex offender policy and other criminal justice issues on numerous occasions. He has spoken at national conferences about the collateral consequences of sex offense convictions.  He has been recognized as a thought leader in the field.

Mike’s partner Jaye Rancourt is also highly skilled and extremely experienced in the defense of sex crimes and related sex offender policy issues. Jaye is known as a tireless advocate for her clients. Her dogged determination on behalf of her clients was most recently demonstrated by her efforts to overturn the conviction of Owen Labrie in the Superior and Supreme Courts.

If you are required to register as a sex offender in New Hampshire and wish to be relieved from that obligation under SB 468 or the John Doe Case you should call Brennan Lenehan at 603-668-8300 and speak with Mike or Jaye. 


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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. The receipt or viewing of this information is not intended to create an attorney-client relationship.