By Stacy L. Bettison
In late January, the Minnesota Legislature received the final report of the Criminal Sexual Conduct Working Group charged with recommending changes to the criminal sexual conduct statute. For over 13 months the working group—comprising victims/survivors, advocates, prosecutors, law enforcement, and criminal defense attorneys—met to consider a multitude of proposed changes to the law, designed primarily to strengthen the criminal statute. The working group membership was composed to reflect a broad spectrum of viewpoints and to be inclusive of marginalized communities.
While the working group’s mandate was to consider just the criminal sexual conduct statute, it became increasingly clear (particularly to the defense bar) that any discussion about expanding criminal liability must also include a discussion of the Predatory Offender Registry—the associated database that is home to over 18,000 people and poses an annual cost of over $1 million to Minnesota taxpayers. (I wrote about the POR at length in these pages in “The new scarlet letter: Is Minnesota’s Predatory Offender Registry helping or hurting?” Dec. 2019.)
Over the course of the working group’s meetings, concerns were frequently raised about the increasing number of people who will be charged with crimes under a newly strengthened statute, and the registry’s increasingly disparate impact on BIPOC, the homeless, juveniles, and other vulnerable people and communities. The Outcomes Subcommittee held several meetings to consider the registry, the net it currently casts, its impact upon both victims and the accused, and how it is serving public safety.
The primary concern voiced was that the registry covers too many people while yielding public safety outcomes that are questionable at best. Concerns in particular were raised about juveniles, people who are charged with a registrable offense but never convicted of that offense, and people who are on the registry for decades due to “restart” provisions that bear no nexus to sex crime recidivism.
There was general agreement that a Predatory Offender Registry Working Group be formed to examine the registry and propose reform. In February 2021, H.F.707 was introduced and referred to the Public Safety and Criminal Justice Reform Finance and Policy Committee. That bill, which featured bipartisan authorship, included revisions to the criminal sexual conduct statute proposed in the working group’s main report. It also included language that would establish a Predatory Offender Registry Working Group to convene in September 2021. (On February 25 the bill was re-referred to the Judiciary Finance and Civil Law Committee; as this article was submitted in mid-March it remained there.)
The Outcomes Subcommittee specifically focused on four principal concerns that were discussed in a supplement to the main report (Supplement 2) submitted to the Legislature.
Those four concerns:
1. Eliminate registration requirements for juveniles.
There was broad consensus to eliminate registration requirements for adjudicated juveniles. Registration requirements would continue for Extended Juvenile Jurisdiction and juveniles tried as adults. Given the overwhelming research showing that a child’s prefrontal cortex is still developing and maturing during adolescence (impacting decision making and the ability to evaluate consequences), the practice of holding children accountable to a registry for 10 years—and in many instances much longer, given the restart provisions (see below)—is contrary to the purpose of Minnesota’s juvenile justice system. In fact, the participants widely concurred that requiring juveniles to register creates more harm than good.
2. Require registration only for convictions.
Currently, registration is required not just for those convicted of a registrable offense, but for individuals “charged with” a registrable offense and convicted of an offense “arising out of the same set of circumstances.” There was broad consensus that requiring registration for offenses other than those that a person was convicted of is inappropriate. The practical impact of requiring registration on probable cause or “same set of circumstances” is that the prosecution and accused are both severely hampered by this framework. Under current law, once probable cause is determined, registration is required—regardless of a case’s disposition, even if it’s later dismissed or a plea agreement is reached that does not include a plea to a registrable offense.
3. Eliminate or modify restart provisions.
There was extensive consideration of the additional five-year registration required when a registrant is convicted for failure to register and the 10-year restart provision for conviction of a subsequent offense. The practical impact of these provisions is that once an individual is required to register, any misstep on the registrant’s part results in long-term registration requirements, even where such misstep suggests no heightened risk for committing a sexual offense. While statutory language was proposed, additional discussion was needed to more fully consider the restart options and solutions.
4. Provide opportunities for early termination of registration requirements.
Though Minnesota has no mechanism to allow a registrant to qualify for early termination of registration requirements, there was significant discussion on the benefits of providing such an opportunity — akin to expungement. While consensus was not reached, the Outcomes Subcommittee recognized the possible benefits to a “carrot-stick” approach that creates incentive for compliance, with the goal of providing registrants an opportunity to qualify for early termination.
Proposed statutory language
The suggested statutory language for enacting the changes suggested in Supplement 2 is as follows:
243.166, subd. 1b. Registration required.
(a) A person shall register under this section if:
(1) the person was charged with or petitioned for convicted of a felony violation of or attempt to violate, or aiding, abetting, or conspiracy to commit, any of the following:, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:
. . .
(2) the person was charged with or petitioned for convicted of a violation of, or attempt to violate, or aiding, abetting, or conspiring to commit any of the following and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:
. . .
(4) the person was charged with or petitioned for, including pursuant to a court martial, convicted of violating a law of the United States, including the Uniform Code of Military Justice, similar to the offenses described in clause (1), (2), or (3), and convicted of or adjudicated delinquent for that offense. or another offense arising out of the same set of circumstances.
(b) A person also shall register under this section if:
(1) the person was charged with or petitioned for convicted of an offense in another state that would be a violation of a law described in paragraph (a) if committed in this state and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances
Note: The working group noted that the amendments to Minn. Stat. 243.167 (“Registration under predatory offender registration law for other offenses”) would also require revisions. Additionally, any revisions may need to provide that registration would still be required in extended jurisdiction juvenile (EJJ) and certified cases. Finally, there was discussion about revisions being applied prospectively only – for convictions on or after a specified date.
243.166, subd. 6. Registration period.
. . .
(c) If a person required to register under this section is incarcerated due to a conviction for a new offense or following a revocation of probation, supervised release, or conditional release for any offense, the person shall continue to register until ten years have elapsed since the person was last released from incarceration or until the person’s probation, supervised release, current registration period, or conditional release period expires, whichever occurs later.
Subd. XX. Petition for Relief. A person who is required to register as a predatory offender under this section may commence a proceeding to terminate their registration requirements by filing a petition in the district court in the county in which the person was convicted or adjudicated of an offense that requires current registration.
(a) A petition for early termination of the registration requirement shall state the following:
1. Why early termination is consistent with public safety;
2. What steps the petitioner has taken since the time of the offense toward personal rehabilitation, including treatment, work, or other personal history that demonstrates rehabilitation.
3. Petitioner’s criminal conviction record indicating all convictions for misdemeanors, gross misdemeanors, or felonies in this state, and for all comparable convictions in any other state, federal court, or foreign country, whether the convictions occurred before or after the arrest or conviction for the offense that prompted the registration requirement, including all criminal charges that have been continued for dismissal or stayed for adjudication, or have been the subject of pretrial diversion;
4. All pending criminal charges against the petitioner in this state or another jurisdiction; and
5. All prior requests for early termination made by the petitioner, whether for the present offense requiring registration or for any other offenses, in this state or any other state or federal court.
(b) The petitioner shall serve by mail the petition for early termination and a proposed early termination order on the prosecutorial office that had jurisdiction over the offense that triggered the petitioner’s current registration requirement, and all other state and local government agencies and jurisdictions whose records would be affected by the proposed order.
(c) The prosecutorial office that had jurisdiction over the offense that prompted the registration requirement shall serve by mail the petition for early termination and a proposed termination order on any victims of the offense.
(d) A victim of the offense for which early termination is sought has a right to submit an oral or written statement to the court at the time of the hearing describing the harm suffered by the victim as a result of the crime and the victim’s recommendation on whether early termination should be granted or denied. The judge shall consider the victim’s statement when making a decision.
(e) A hearing on the petition shall be held no sooner than 60 days after service of the petition. A victim of the offense for which early termination is sought has a right to submit an oral or written statement to the court at the time of the hearing describing the harm suffered by the victim as a result of the crime and the victim’s recommendation on whether early termination should be granted or denied. The judge shall consider the victim’s statement when making a decision.
(f) The Court shall grant the petition following the hearing if:
a. Petitioner has completed, or has been discharged from, probation; or
b. Petitioner received an executed prison sentence, Petitioner has completed conditional and supervised release; and
c. The Court finds by clear and convincing evidence that terminating the registration requirement is consistent with public safety.
STACY BETTISON practices complex civil litigation and criminal defense at Kelley, Wolter & Scott, P.A. in Minneapolis.