Ex Post Facto Clause as it applies to Registrants


Here is a good starting point for those whom are working with getting removed from the registry and want to ustilize the Ex Post Facto Clause. You can not be retroactively punished for a crime you committed before and ‘new’ law of punishment enhancement is enacted. This Ex Post Facto argument is also a good proposition to base many “punitive” arguments against the Registry.

“Ex Post Facto Clauses forbid states from enacting laws which impose additional punishment to that which was prescribed at the time an act was committed.” See also Gasper v. Gunter, 851 P.2d 912, 913 (Colo. 1993).

Because Congress cannot generally order states to comply with federal regulatory laws, SORNA[13] merely includes recommendations to states on how to implement a sex offender registry scheme but requires individual sex offenders to register with the state database where they reside, work, or are students.[14]
In Doe II, the Court of Appeals ruled an individual sex offender has no independent federal obligation under SORNA to register if doing so would be contrary to a state law that has been found, by the state’s highest court, to be unconstitutional.

Unfortunately, sex offender registration can lead to:

1)      Housing issues;

2)      Employment challenges; and

3)      Retribution and humiliation in professional and social circles.

In order to have a name removed from the Sex Offender Registry, the individual must file and appeal to have his or her name removed.

For those who believe they qualify to have their name removed under Doe II, it is important to seek legal assistance and move quickly.

[…]a criminal defendant can only be subject to the law governing the substance of the crime and the sentence at the time of the offense, and that there is an Ex Post Facto Clause violation when there is a “substantial risk” that the sentence will be greater now than it was then.

I’m in Illinois where the sex offender registry law implies that if a Ex-sex offender who completes his sex offender registration and is taking off the state sex offender database; he or she can be place back on the sex offender list after being convicted of any new non-sex offens
e felony…..and if your previous sex offense that only required a 10 year registration under the old law now requires a lifetime registration under the new law, that person now has to register for life. If that scheme of law doesn’t volate the ex post facto law I don’t know what does.

Judge overturns 15-year extension of sex offender’s registration time.
Offender’s attorney thinks KBI, JoCo sheriff’s office will appeal ruling
Posted: July 16, 2013 – 5:49pm

Hendricks concluded the Kansas Offender Registration Act “is effectively punitive” and “is excessive in relation to its alleged purpose of protecting public safety. These provisions have become oppressive to the point of punishment. Therefore, the KORA’s retroactive application assigns a new punitive measure to a crime already consummated in violation of the ex post facto clause.”
District Judge Larry Hendricks ordered the Kansas Bureau of Investigation and the Johnson County Sheriff’s Office to “immediately delete” all information required by the Kansas Offender Registration Act that is publicly displayed about the man.

On October 21, 2014 the Michigan Court of Appeals held in People of the State of Michigan v Boban Temelkoski that the sex offender registry is not punishment. At least, for purposes of a constitutional challenge such as cruel and unusual punishment or ex post facto. The intellectual contortions the court went through to reach this absurd conclusion staggers the mind.

2013 OK 43
305 P.3d 1004
Case Number: 109556
Decided: 06/25/2013


June 28, 2013
Oklahoma Supreme Court finds state’s new sex offender registration requirements punitive and thus limited by ex post facto doctrine
The full Oklahoma Supreme Court ruling is available at this link: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=470336

Another court has ruled the ex post facto implementation of the Sex Offender Registration Laws to be Unconstitutional, Punitive and no matter if the intent was civil, the effect is additional punishment…
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.”
link to full pdf: http://cfcamerica.org/index.php?option=com_content&view=article&id=1596:louisiana-judges-overturn-sex-offender-rule&catid=3:news&Itemid=96
ALASKA SUPREME COURT RULES RETROACTIVE APPLICATION OF THE ALASKA  SEX OFFENDER REGISTRY IS PUNITIVE AND UNCONSTITUTIONAL: http://www.cfcamerica.org/index.php?option=com_content&view=article&id=222:alaska-supreme-court-rules-sex-offender-registry-unconstitutional&catid=12:legal-issues&Itemid=12

Aug 6, 2009 – I. History of the Ex Post Facto Clause & Sex Offender Registries


Defining the Registry as punitive

Liberties Denied
A) Privacy,
1. Address
The Registrant’s privacy is violated because their personal information is available to the general public. Addresses are made public which creates a possible threat because the Registrant’s enemies, vigilantes, or anyone whom the registrant considers to be a threat have access to all of this information. Even if there is only a perceived threat, there is still a negative consequence, because a Person’s address being published involuntarily, affects ones peace of mind which in turn affects a person life and liberty as well as well as a person being put in Jeopardy of life or limb actually or feeling that they are exposed to danger and not safe. How can a person pursue happiness or feel at liberty when their personal information is available worldwide? Being denied privacy or the right to feel protected and safe is contrary to what is described in the Bill of Rights Amendment V, which clearly states; “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,without due process of law; nor shall private property be
taken for public use, without just compensation.”

B) Freedom
1. Temporary Address
According to 775.21 (l) F.S, a temporary address is described as follows: “Temporary residence” means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state. This stipulation in the registry also invades the privacy and safety of others with whom the registrant associates with. For example; If a registrant spends more than 5 nights in a calendar year at any address other than his own, for example a friend, girlfriend or a relative…etc, he must provide law enforcement with that address, which is then posted on the Registry’s website, which could possibly affect the safety of others who need not be punished, or create a situation where the Registrant is denied the privilege of spending the night by a Friend or girlfriend because they don’t want their address negatively publicized thus denying the registrant liberty.

2. Electronic Mail Address
As per 775.21 (6) (a)F.S and 943.0435 (3) (d) F.S, Registrants must provide any “Electronic Mail Address” or “Instant Message Name” that is used by the registrant. This requirement leaves an opportunity for the Registrant to be unfairly accused of non compliance due to the lack of substantial verification of a Person’s true identity by electronic mail an instant message providers. Any person has the ability to falsely set up an email or instant message account, then report the “unregistered” account with law enforcement which would trigger adverse and unjust legal action against the registrant for violating the requirements of 943.0435 (3) (d) F.S. This action would unfairly cause the Registrant to loose their right to freedom by being arrested and incarcerated for a crime that was not committed.

3. Unfair restrictions on residency
There are two ways that current registration laws adversely affect the ability of Registrants to obtain housing: (a) Laws restricting persons convicted of certain sex offenses, and (b) Landlords and Rental companies that refuse to rent to Sex Offenders.

(a) Laws restricting persons convicted of certain sex offenses
775.215 (2) (a) prohibits anyone convicted of certain sex offense from living within 1,000 feet of any school, child care facility, park or playground. Being subject to this rule blocks off large sections of places a Registrant can live. Since school bus stops are very common, and designated and assigned to promote ease of access so that students may attend school, there can be many spread out and create large overlapping areas when many school bus stops are combined with schools, day cares, parks and playgrounds. This eliminates the majority of places one can live. With these restrictions in place it can be extremely hard to find a place that satisfies the registrants location, price, and housing needs, and may force the person to live somewhere that they don’t want to, which denies them the right to liberty, and the pursuit of happiness and essentially their freedom .

(b) Landlords and Rental companies that refuse to rent to Sex Offenders
Many landlords and Rental companies have the right to refuse to rent to anyone listed on the sex offender registry, and most exercise that right either because they feel that they are protecting their renters, or because their personal feelings about dealing with an offender. Furthermore, sex offenders are NOT protected by the Fair Housing act (Title VIII of the Civil Rights Act of 1968) as described in the joint statement of the Department of Housing and Urban Development and the Department of Justice’s description of rights for reasonable accommodations under the fair housing act: “ No, juvenile offenders and sex offenders, by virtue of that status, are NOT persons with disabilities protected by the act”.

Doe came before the Court of Appeals in 2013 in Doe v. Dep’t of Pub. Safety & Corr. Servs. (“Doe I”) and argued that the “highly punitive and restrictive nature” of the retroactive application of Maryland’s sex offender registration law violates both the federal constitutional ban on ex post facto (after the fact) laws and both clauses of Article 17 of Maryland’s Declaration of Rights prohibiting ex post facto laws and restrictions.  The Court of Appeals agreed, holding that the application of a law passed nearly twenty-five years after the commission of the crime is unconstitutional under Article 17 and in violation of an individual’s rights.  Thus, Doe’s name was taken off the registry.  The Court of Appeals did not go into an analysis of the federal law and “specifically excluded any analysis of the federal Sex Offender Registration and Notification Act (SORNA)” because “federal obligations are not before [the court].”