State High Courts Rule that Post-Conviction Registration Law Violates Constitution’s Ex Post Facto Clause

The U.S. Constitution prohibits laws that apply retroactively, or “ex post facto” laws. The state therefore cannot prosecute a person for an act that was not illegal when it allegedly occurred, and cannot impose punishment that was not part of the statute at the time of conviction. The Maryland Court of Appeals, that state’s highest court, recently ruled that a statute requiring a person to register as a sex offender violates the Constitution’s ex post facto clause, when the person’s conviction occurred before the statute was enacted. Doe v. Dep’t Of Pub. Safety & Corr. Servs., No. 125, September Term 2011, slip op. (Md. Ct. App., Mar. 4, 2013). This ruling diverges from U.S. Supreme Court cases on the topic, which have held that registration is not a “punishment” and therefore does not violate the ex post facto clause. The ruling could have substantial impact in drug crime cases and other cases with possible consequences beyond fines or jail.

The defendant in Maryland’s Doe case pled guilty to child sexual abuse in 2006 for an alleged incident that occurred in 1983 or 1984. His plea agreement did not mention sex offender registration. The judge sentenced him to terms of imprisonment and probation and ordered that he register as a sex offender. The court struck the registration order when the defendant argued that the sex offender registration statute in effect at that time did not retroactively apply to him. The Maryland General Assembly enacted a law in 2009, however, that required people who committed an offense before October 1, 1995 but were convicted on or after that date, to register. The defendant registered under protest. The state changed the law again in 2010, making the defendant, based on his conviction, a Tier III sex offender, “the most severe designation requiring lifetime registration.” Doe, slip op. at 7. By then, the defendant had already filed suit seeking a declaratory judgment that he was not required to register because the statute could not retroactively apply to him, and that registration violated the terms of his plea agreement.

The U.S. Constitution prohibits Congress and the states from passing ex post facto laws in Article I, Section 9, Clause 3, and Article 1, Section 10, Clause 1, respectively. The U.S. Supreme Court identified four types of unconstitutional ex post facto criminal laws in the 18th Century, including any law that criminalizes “an action done before the passing of the law, and which was innocent when done,” or that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798).

While a law that changes the legal classification of a conviction after the conviction has occurred might seem like a clear-cut violation of the ex post facto clause, courts and lawmakers have chipped away at ex post facto restrictions by narrowing the definition of “punishment.” The Supreme Court held in Smith v. Doe, 538 U.S. 84, 105-106 (2003), that a state’s sex offender registration law was not punitive, but rather a “civil regulatory scheme.” Id. It therefore held that the statute’s retroactive application did not violate the ex post facto clause. Subsequent cases have generally followed this decision.

The notion that registration in a publicly-accessible forum as a sex offender is not a “punishment” may seem unusual. The Maryland court appears to have considered that in finding the statute unconstitutional. It specifically cited the availability of registration information, including home addresses and more, to the public, and noted that these provisions “have an effect upon Petitioner that is tantamount to shaming.” Doe, slip op. at 40. It held that the law violates the Maryland Declaration of Rights, which has an ex post facto clause similar to those in the U.S. Constitution.

Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.

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