Time To Revisit Ex Post Facto Clause For Sex Offenders

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By Norm Pattis
Posted on 07.02.2011

Scores of folks have
sent me emails generated by a group called Citizens for Change. They want me to
hear their cries for justice, and to sign on to the fight to have the courts
declare retroactive application of the federal sex offender registration act
unconstitutional. My first response to the emails was a weary sigh. The ex post
facto clause is tricky, and most folks don’t get just how it has been gutted by
the courts.

The last time the federal Supreme Court heard an ex post
facto challenge to sex offender registration was in 2003, involving an Alaska
decision. The Smith v. Doe decision ruled that requiring a convicted sex
offender to register as an offender is not a violation of the ex post facto
clause of the federal constitution even if the registration requirement did not
exist at the time a person was convicted.

The ex post facto clause
prohibits lawmakers from passing laws that impose or increase punishment for
criminal offenses after the acts are committed. But the law applies only to
criminal laws, and not to civil laws. Most courts reason that registration
requirements are not punishment, they are mere incidents, or consequences, of a
criminal conviction. The purpose of registration, these courts say, is not
punitive; registration exists merely to protect the public, and are civil in
scope and purpose.

This is, of course, threadbare nonsense to the 700,000
or so folks required to register throughout the United States. These folks are
publicly identified as pariahs long after they have paid their debt to society
by way of the criminal sanction.

A recent article in the Fall 2010
edition of the Northwestern Journal of Law and Social Policy, Putting the Brakes
on the Preventive State: Challenging Residency Restrictions on Child Sex
Offenders in Illinois Under the Ex Post Facto Clause, by Michelle Olson, is a
model of the sort of pragmatic scholarship that litigants can put to use in test
cases. Olson argues persuasively that traditional arguments about the ex post
facto clause are losing their persuasive force as lawmakers yield to moral panic
over sex crimes.

Focusing on recent changes in Illinois law imposing
residency restrictions on those convicted of child sex offenses, Olson paints a
portrait of a body of law that grows without constitutional constraint.
Lawmakers are quick to pass new legislation, fearing the reaction at the polling
place if they should appear to have cold feet about isolating sex offenders of
all sorts. It matters not whether an offender is convicted of violent rape or
public indecency, lumping all offenders into one group and then dumping them
into seeming virtual concentration camps is all the rage among lawmakers. The
courts, it seems, are content to let this occur, relying on old and ancient
understandings of the ex post facto clauses in the federal and state
constitutions that regard registration as a mere civil incident to a criminal

But there is hope, Olson nots. The Supreme Courts of Kentucky
and Indiana have recently ruled that retroactive registration requirements cross
the divide from mere civil consequences to something akin to penal laws.
Although the public rationale for registration is protecting the public, a
registration regime that fails to distinguish those likely to cause harm from
those who do not is irrational. What’s more, these statutes sometimes require
folks who were never even convicted of a sex offense to register. And what of
the folks who are forced from family homes and support because they live too
near to a school? Is it sound public policy to render folks who have served
their sentence homeless?

Olson’s article opened my eyes to broad new
possibilities in the fight for sensible sex offender registration laws. It is my
understanding that Louisiana’s Supreme Court has also declared retroactive
registration to violate the state’s ex post facto clause. The federal Supreme
Court’s recent decision recognizing the importance of the collateral
consequences of a conviction for non-citizens in the Padilla case also suggests
that the high Court may be prepared to recognize that the line separating
criminal and civil laws isn’t as bright as was once thought.

States are
often regarded as laboratories by the federal Supreme Court. Lawmakers in the
fifty states experiment with laws and legal doctrines often well before an issue
reaches the United States Supreme Court. If three state Supreme Courts have
found reason to regard retroactive registration requirements as offensive since
Smith v. Doe, there is hope additional states will follow suit. In time, there
may well be grounds sufficient to return to the United States Supreme Court with
a case testing new federal registration requirements.

To all those who
have written urging me to take a look, thank you. I have done so. I’m in.

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