FILED: AUGUST 15, 2002
STATE OF OREGON,
Respondent on Review,
v.
LOREN MACNAB,
Petitioner on Review.
En Banc
On review from the Court of Appeals.*
Argued and submitted March 1, 2002.
Andy Simrin, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was David E. Groom, State Public Defender.
Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause and filed the response for respondent on review. With him on the response were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Gail L. Meyer, of Lerner and Meyer, Portland, filed a brief on behalf of amicus curiae SOHOPEFUL and John Does Nos. 6, 9, & 10.
DE MUNIZ, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from Benton County Circuit Court, Janet Schoenhard Holcomb, Judge. 170 Or App 538, 13 P3d 167 (2000).
DE MUNIZ, J.
The issue presented in this criminal case is whether the ex post facto clauses of the Oregon or the United States Constitutions prohibit defendant's criminal conviction for failure to register as a sex offender. (1) ORS 181.599 (1995). (2)
In 1990, defendant was convicted of sexual abuse in the first degree for an act of sexual misconduct that he committed in 1987. The court sentenced defendant to five years in prison. Defendant was released on parole in 1991. From 1991 to 1994, defendant's parole officer annually registered defendant as a sex offender, as required by former ORS 181.518 (1989), renumbered as ORS 181.595 (1995). Defendant's sentence expired in 1994. In November 1995, the Oregon State Police (OSP) notified defendant by letter that he had an obligation to register annually as a sex offender. In February 1996, defendant responded to OSP indicating that he had received their letter. In September 1997, the state charged defendant with failing to register as a sex offender in violation of ORS 181.599 (1995). (3)
Before his trial in 1998, defendant filed a "Demurrer to Indictment and Alternative Motion to Dismiss" arguing that "ORS 181.594 et seq. and ORS 181.599 are unconstitutional in that they violate the ex post facto clauses of the Constitution of the United States and of the State of Oregon." The trial court overruled defendant's demurrer. Defendant was convicted for failing to register as a sex offender and was sentenced to 60 days incarceration.
Defendant appealed to the Court of Appeals, arguing that, because Oregon did not have a sex offender registration law when he committed sexual abuse in 1987, requiring him to register as a sex offender under the 1995 law is an unconstitutional ex post facto application of law. The Court of Appeals rejected defendant's argument and affirmed his conviction. State v. MacNab, 170 Or App 538, 13 P3d 167 (2000). We allowed defendant's petition for review and now affirm the decision of the Court of Appeals.
Before this court, defendant asserts that, "[b]y imposing lifetime reporting requirements, subject to imprisonment for noncompliance, the legislature retroactively altered, to [defendant's] disadvantage, the situation of persons previously convicted of sex offenses." Defendant contends that subjecting him to retroactive application of the 1995 sex offender registration law violates the ex post facto clauses of the Oregon and United States Constitutions in that it "increases [his] punishment by extending [his] sentence." (4) The state offers alternative arguments in response.
As a preliminary matter, we address the state's assertion that there is no ex post facto issue in this case "because 'the law' was not applied retroactively." In other words, the state contends that the conduct for which the trial court convicted defendant is "failing to register," and that it is undisputed that that criminal conduct occurred after the legislature enacted the registration law at issue. We reject that contention because it misstates the legal challenge that defendant has framed. As noted above, defendant contends that requiring him to register as a sex offender imposes a punishment that was not part of Oregon law in 1987, the year he committed his act of sexual misconduct.
As to the issue that defendant has framed, the state contends that the sex offender registration requirement is a regulatory law that does not increase defendant's punishment in violation of either ex post facto provision. To identify the parameters of the constitutional issue that we resolve in this case, we briefly summarize the history of Oregon's sex offender registration laws.
Before 1989, Oregon did not have a sex offender registration law. (5) However, in 1989, the legislature enacted former ORS 181.518 (1989), which required convicted sex offenders to register with OSP for a period of five years. That statute also required an offender, during that five-year period, to report any change of address within 30 days. There was no penalty for noncompliance. The legislature added penalties for noncompliance in 1991 when it passed Oregon Laws 1991, chapter 389, section 4, making it a felony to fail to report a change of address if the offender's underlying crime was a felony. The law classified an offender's failure to file an annual report as a violation. Id.
In 1993, the legislature enacted former ORS 181.507 (1993), renumbered as ORS 181.585 (1995), which allowed supervising agencies to classify certain offenders as "predatory" sex offenders. That classification permitted the supervising agency, pursuant to former ORS 181.508 (1993), renumbered as ORS 181.586 (1995), to notify "anyone whom the agency determines is appropriate that the person is a predatory sex offender."
In 1995, the legislature enacted a more comprehensive sex offender registration law. ORS 181.596(3) (1995) required that convicted sex offenders register annually, in writing, with OSP and to notify OPS, in writing, within 30 days of a change of address. ORS 181.599 (1995) made it a felony for a felony sex offender, with knowledge of the registration requirements, to fail to register. At the same time, ORS 181.588 (1995) prohibited public dissemination of the lists of registered offenders, or their addresses, unless a law enforcement agency declared that an offender was a "predatory" sex offender. If the law enforcement agency made that determination, then it also could notify anyone that it determined appropriate to receive notification. ORS 181.588(1) (1995). (6)
Because defendant was convicted in 1998 for violating the 1995 sex offender registration law, and because there is no evidence in this record that OSP has designated defendant a "predatory" sex offender, the 1995 sex offender registration law is the only one at issue in this case. (7)
Defendant raises both state and federal ex post facto challenges to the 1995 registration requirements. Although this court in the past has "construe[d] these particular state and federal provisions without distinguishing them," State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993), this court's constitutional methodology requires that we first consider defendant's argument under Article I, section 21, of the Oregon Constitution. See State v. Fugate, 332 Or 195, 210, 26 P3d 802 (2001) (citing State v. Cookman, 324 Or 19, 25, 920 P2d 1086 (1996), for ex post facto analytical paradigm). Doing so is particularly appropriate now because, in Cookman, and later in Fugate, this court did not defer to the federal ex post facto analysis, but instead relied on the formulation established in Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992), to ascertain the meaning of Article I, section 21. (8)
In Fugate, this court analyzed the meaning of Article I, section 21, by examining its text, the case law interpreting it, and the historical circumstances surrounding its creation. 332 Or at 210. The Fugate court concluded that, like the framers of the United States Constitution, the framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment. (9) See Fugate, 332 Or at 214 (concluding that four categories of laws identified in Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed 648 (1798), are ex post facto laws that Article I, section 21, prohibits).
Defendant argues that the 1995 sex offender registration law falls into the third category of ex post facto laws because requiring him to register as a sex offender increases his punishment beyond that annexed to his 1987 sexual abuse crime. Thus the issue is whether the 1995 sex offender registration law imposes a form of increased punishment that Article I, section 21, prohibits. See State v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000) (court should "apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise").
We begin with the text of Article I, section 21, and observe that all that can be gleaned from the text is that it forbids the passage of laws "after the fact." Cookman, 324 Or at 26. The word "punishment" is not a part of the text of Article I, section 21. However, in Fugate this court interpreted Article I, section 21, to forbid laws that inflict "punishment" not annexed to the crime at the time of commission. See 332 Or 211-13 (discussing four Calder categories).
Although the text of Article I, section 21, does not reveal the conceptual contours of "punishment," the framers had available to them a mid-nineteenth century law dictionary that contained the following comprehensive definition of punishment:
"some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor, by the judgment and command of some lawful court. Punishments are either corporal or not corporal. * * *. The punishments which are non corporal, are fines; forfeitures; suspension or deprivation of some political or civil right; deprivation of office, and being rendered incapable to hold office; compulsion to remove nuisances. The object of punishment is to reform the offender; to deter him and others from committing like offences; and to protect society."
John Bouvier, II A Law Dictionary Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union, 311 (1839) (citing Vide 4 Bl Com 7; Rutherf Inst B 1, ch 18). See Smothers v. Gresham Transfer, Inc., 332 Or 83, 92, 23 P3d 333 (2001) (referring to same dictionary to determine meaning of word "remedy," as intended by framers of Article I, section 10, of Oregon Constitution).
Thus, by the mid-nineteenth century, noncorporal sanctions such as fines, forfeitures and suspensions or deprivations of some political or civil rights, were included within the accepted legal dictionary definition of "punishment." Notably, each form of noncorporal sanction within that definition imposes on the offender some detriment, restraint, or deprivation that is intended to deter the offender and others from committing future offenses.
We turn next to this court's case law. Neither party refers the court to a case that makes clear the parameters of punishment that Article I, section 21, prohibits. Defendant asserts, however, that this court's opinion in Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), provides some guidance in defining prohibited punishment under Article I, section 21.
Brown required the court to determine whether a first offense driving under the influence proceeding for which no imprisonment was authorized was, nevertheless, a "criminal prosecution" that triggered a defendant's constitutional right to appointed counsel, jury trial, and proof beyond a reasonable doubt. The Brown court identified a number of "indicia" that it considered relevant in determining whether an ostensibly civil proceeding nevertheless retained "punitive traits that characterize a criminal prosecution." 280 Or at 110.
One of the indicia that Brown described as importing "punitive significance" provides some general guidance about the principles that underlie the concept of punishment. In that regard, the Brown court commented that the purpose of criminal law customarily is stated to be "'retribution and deterrence,' * * * meaning deterrence both of the individual defendant and of persons in his situation generally." 280 Or at 105. Nevertheless, the court noted that, because "deterrence is equally a purpose of other sanctions," identifying the deterrent effect of a law does not necessarily establish that a law is "punitive." Id. Finally, the Brown court acknowledged that at least one leading scholar had concluded that the "stigma of [community] condemnation" is the overriding principle that tends to separate criminal from civil sanctions. Id. at 106 (citing Hart, The Aims of the Criminal Law, 23 Law & Contemp Prob 401, 404 (1958)). Informed by Brown's "punitive significance" discussion, we turn to the historical circumstances that led to the creation of Article I, section 21.
Article I, section 21, was derived from Article I, section 24, of the 1851 Indiana Constitution. (10) See Cookman, 324 Or at 28 (so stating). The 1816 Indiana Constitution contained an almost identical ex post facto provision. (11) In 1833, the Indiana Supreme Court construed that 1816 provision. In doing so, that court noted its similarity to the federal ex post facto clause, and embraced Blackstone's definition of an ex post facto law:
"The first thing then to be determined is, whether [the law in question] is an ex post facto law? Blackstone defines an ex post facto law to be a law made after the commission of an indifferent act, declaring the act to be a crime, and inflicting a punishment upon the person who committed it."
Martindale v. Moore, 3 Blackf 275, 276 (1833).
Blackstone's definition of an ex post facto law also was deemed to be "precisely in the same light" as the meaning Justice Chase ascribed to the federal ex post facto clause in Calder. See Cookman, 324 Or at 30 (citing Calder reference to Blackstone).
Neither Martindale nor Calder defined "punishment" for purposes of the ex post facto prohibition. However, both cases referred to Blackstone to discern the meaning of the ex post facto clauses. Blackstone was also available to the framers of the Oregon Constitution when they adopted the Indiana ex post facto clause as Article I, section 21, of the Oregon Constitution. Blackstone's chapter 29 entitled "OF JUDGMENT, AND IT'S CONSEQUENCES" includes a detailed discussion of the common forms of punishment for the violation of criminal laws. Blackstone described those as follows:
"Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American colonies: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or face. Some are merely pecuniary, by stated or discretionary fines: and lastly there are others, that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for crimes, which arise from indigence, or which render even opulence disgraceful."
William Blackstone, 4 Commentaries on the Laws of England *370 (1769).
As noted, both Bouvier and Blackstone were available to the framers of the Oregon Constitution. The similarity of the attributes of punishment that they identify, and the respect accorded Blackstone in mid-nineteenth century jurisprudence persuade us that even the most expansive mid-nineteenth century understanding of noncorporal punishment included some form of detriment, restraint, or deprivation intended primarily to deter the offender and others from committing future criminal acts. (12) We conclude that the framers understood punishment to encompass those attributes at the time that they considered Article I, section 21. Accordingly, we examine the 1995 sex offender registration law to determine whether those punitive attributes (detriment, restraint, or deprivation intended to deter the offender and others) are present to such a degree that the application of the law to defendant violates Article I, section 21, of the Oregon Constitution.
When the legislature passed the sex offender registration law in 1991, it declared expressly that "[t]he purpose of ORS 181.517, ORS 181.518 and ORS 181.519 and sections 4 to 6 [making failure to register a crime] of this Act is to assist law enforcement agencies in preventing future sex offenses." Or Laws 1991, ch 389,