Friday, January 15, 2010

Sex Offender Laws & the Ex Post Facto Clause

During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. I’ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment. I also discuss the case of Carr v. United States, currently pending in the U.S. Supreme Court, which involves an Ex Post Facto Clause challenge to the retroactive application of the Sex Offender Registration and Notification Act (SORNA).

Hopefully, these cases will provide some assistance for those of you currently litigating similar issues in Kansas. And of course, if you're not litigating these issues, you should be. More on that in a later post.

Missouri

Earlier this week, the Missouri Supreme Court held that laws regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect. Here is the court’s opinion, and here is a KC Star article on the case.

Nebraska

As explained here, a federal district court judge enjoined part of Nebraska’s new sex offender law, holding that Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

The court held

[F]or offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”

Here is the full text of the judge’s order. Thanks to Doug Berman for the tip.

Maine

As detailed here, in State v. Letalien (2009), the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. The Maine Supreme Court held that the change in the registration law violated the US Constitution’s prohibition against ex post facto punishments, noting that the Federal and Maine Constitutions provide the same Ex Post Facto protections.

Thanks to Gideon and Meryl Carver-Allmond for the tip on this one.

Indiana

In Wallace v. State (2009), the Indiana Supreme Court held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the ex post facto clause of the Indiana Constitution.

Kentucky

In Kentucky v. Baker (Oct. 1, 2009), the Kentucky Supreme Court held that KRS 17.545, which restricts where registered sex offenders may live, could not be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. The court noted that the retroactive application of the statute was an ex post facto punishment, which violated Article 1, Section 10 of the United States Constitution and Section 19(1) of the Kentucky Constitution.

Ninth Circuit

The Ninth Circuit Court of Appeals declared in U.S. v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

Upcoming SCOTUS decision

In Carr v. United States, Docket No. 08-1301, the US Supreme Court will soon consider an ex post facto challenge to SORNA. Oral argument is scheduled for February 24, 2010. The issue to be decided is:

Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Here is a nice amicus curiae brief (written by Doug Berman, Wayne Logan, and Corey Yung) that argues that SORNA violates the Ex Post Facto Clause of the U.S. Constitution.

2 comments:

constitutionalfights@yahoo.com said...

Please don't forget Ohio, where there are four consolidated cases before the Ohio Supreme Court. Oral Arguments were heard on Nov, 4, 2009 and decisions are expected by Spring 2010. Read about the cases here:
http://constitutionalfights.wordpress.com/2009/11/04/ohio-supreme-court-oral-argument-videos/
and here:
http://constitutionalfights.wordpress.com/2009/11/03/ohio-supreme-court-oral-arguments-begin/

guitar said...

LA: Appellate Court Overturns Sex Offender Rule
March 31, 2010 Comments off

2theadvocate.com (Louisiana): Judges overturn sex offender rule.

Finally a sane court rules that these retro-active registration laws are indeed punitive in nature !

An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.

The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.

Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.

Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.

Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters. Driver’s licenses for sex offenders must be renewed annually.

The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.

The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.

In Smith’s case, however, the amendments adopted after his conviction are “so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him.”

The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says.
————————————–
This decision can be read here:
Case Numbers 2009 CA 1765 and 2009 CW 1169
JIMMY L SMITH VERSUS STATE OF LOUISIANA – March 26 2010