Constitutional Fights Repeal Adam Walsh Act Laws !

Sex Offender Laws & the Ex Post Facto Clause

Kansas Defenders : 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.

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/2009/11/03/ohio-supreme-court-oral-arguments-begin/
and here:
http://constitutionalfights.wordpress.com/2009/11/04/ohio-supreme-court-oral-argument-videos/

http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=122993&

source: http://constitutionalfights.blogspot.com/2010/01/sex-offender-laws-ex-post-facto-clause.html

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Published in: on January 21, 2010 at 7:35 am  Comments (4)  
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4 CommentsLeave a comment

  1. My name is Keith Smith. I was abducted, beaten and raped by a stranger. It wasn’t a neighbor, a coach, a relative, a family friend or teacher. It was a recidivist pedophile predator who spent time in prison for previous sex crimes; an animal hunting for victims in the quiet suburbs of Lincoln, Rhode Island.

    I was able to identify the guy and the car he was driving. He was arrested and indicted but never went to trial. His trial never took place because he was brutally beaten to death in Providence before his court date. 34 years later, no one has ever been charged with the crime.

    In the time between the night of my assault and the night he was murdered, I lived in fear. I was afraid he was still around town. Afraid he was looking for me. Afraid he would track me down and kill me. The fear didn’t go away when he was murdered. Although he was no longer a threat, the simple life and innocence of a 14-year-old boy was gone forever. Carefree childhood thoughts replaced with the unrelenting realization that my world wasn’t a safe place. My peace shattered by a horrific criminal act of sexual violence.

    Over the past 34 years, I’ve been haunted by horrible, recurring memories of what he did to me. He visits me in my sleep. There have been dreams–nightmares actually–dozens of them, sweat inducing, yelling-in-my-sleep nightmares filled with images and emotions as real as they were when it actually happened. It doesn’t get easier over time. Long dead, he still visits me, silently sneaking up from out of nowhere when I least expect it. From the grave, he sits by my side on the couch every time the evening news reports a child abduction or sex crime. I don’t watch America’s Most Wanted or Law and Order SVU, because the stories are a catalyst, triggering long suppressed emotions, feelings, memories, fear and horror. Real life horror stories rip painful suppressed memories out from where they hide, from that recessed place in my brain that stores dark, dangerous, horrible memories. It happened when William Bonin confessed to abducting, raping and murdering 14 boys in California; when Jesse Timmendequas raped and murdered Megan Kanka in New Jersey; when Ben Ownby, missing for four days, and Shawn Hornbeck, missing for four years, were recovered in Missouri.

    Despite what happened that night and the constant reminders that continue to haunt me years later, I wouldn’t change what happened. The animal that attacked me was a serial predator, a violent pedophile trolling my neighborhood in Lincoln, Rhode Island looking for young boys. He beat me, raped me, and I stayed alive. I lived to see him arrested, indicted and murdered. It might not have turned out this way if he had grabbed one of my friends or another kid from my neighborhood. Perhaps he’d still be alive. Perhaps there would be dozens of more victims and perhaps he would have progressed to the point of silencing his victims by murdering them.

    Out of fear, shame and guilt, I’ve been silent for over three decades, sharing my story with very few people. No more. The silence has to end. What happened to me wasn’t my fault. The fear, the shame, the guilt have to go. It’s time to stop keeping this secret from the people closest to me, people I care about, people I love, my long-time friends and my family. It’s time to speak out to raise public awareness of male sexual assault, to let other survivors know that they’re not alone and to help survivors of rape and violent crime understand that the emotion, fear and memories that may still haunt them are not uncommon to those of us who have shared a similar experience.

    My novel, Men in My Town, was inspired by these actual events. Men in My Town is available now at http://www.Amazon.com

    For those who suffer in silence, I hope my story brings some comfort, strength, peace and hope.

    For additional information, please visit the Men in My Town blog at http://www.meninmytown.wordpress.com

  2. Thank you Keith for sharing your story.

  3. Keith, I am so sorry to hear about what happened to you. I too was abused as a child, and I know how this pain affects victims of sexual abuse. When I was 21, I made a very poor decision at a party under the heavy influence of drugs and alcohol. I realize that my my actions affected this young lady adversely, however, It has been 12 years. The victim in my case was 21 and out of fear of sentencing I accepted a plea. I am not a predator. I have never been a predator. I spent my youth terribly confused regarding my own abuse, and struggled to see my own value as a person. I buried myself in drugs and alcohol to try to ease my pain. Consequently, in my state, I was unable to make any mature decisions regarding my behavior.

    I have not used a drug or taken a drink since that party. I have not re-offended, and I never will. I was recently married and just had my first child. My son is 4 months old. We had a difficult delivery and had to stay in the ICU for two weeks after he was born. When I went to the hospital for a follow up appointment, I, his own father, was denied access to the hospital due to my registration. I now live in fear of vigilante justice, as well as for the safety of my innocent wife and son. I have paid heftily for my mistakes. I was a stupid young man. I am a wonderful man today. I have been employed by the same company for 7 years, just bought a home, and I love my wife and son more than I can explain. Please see that even the worst of criminals may, if they want to, find a way to be better people. As far as those that have no empathy for anyone, re-offend, or show that they are predators, keep them where they belong and let those of us who have worked hard to change live our lives as people and not sub-humans.

  4. The post is written in very a good manner and it entails many useful information for me. I am happy to find your distinguished way of writing the post. Now you make it easy for me to understand and implement the concept.


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