Tuesday, July 1, 2014

Great News in Maryland! Retroactive Mandate to Register for Convictions Before the Sex Offender Registry Existed Upheld as Unconstitutional and Now the State MUST Remove Those They Forced to Register

Only 17 of 50 States (and Washington D.C.) are certified as Adam Walsh Act/SORNA compliant by the SMART Office and Maryland is one of them. 

Maryland is also one of the states that have faced a court challenge against mandated retroactive registration with a ruling of unconstitutional action. They removed the one man (RSO) that took the 2013 challenge but refused to remove all the others they wrongly forced to register. 

Well yesterday the Court of Appeals upheld the decision and now the state of Maryland is supposed to remove all the additional citizens it forced to register for convictions prior to the existence of their registry (see article below). This will take time and money!!!!!!!!!! 

A similar ruling and result occurred in Ohio back in 2010. The state of Ohio had retroactively reclassified (increasing the classifications) its offenders years after their conviction. After their court ruled this action was unconstitutional they spent months and tens of thousands of dollars returning the original classifications to 26,000 offenders. 

If the law didn’t exist on the date a conviction was handed down, then the government can not apply the law onto the convicted person after the fact. Ex post fact- http://en.wikipedia.org/wiki/Ex_post_facto_law

Mandatory legal requirements can not be implemented without the ability for the citizen it affects to be involved in a fair proceeding. Due Process- http://en.wikipedia.org/wiki/Due_process

The SMART Office tells states they can apply laws retroactively to Registered Sex Offenders but that is a violation of ex post facto and a denial of due process, both are unconstitutional in America!  

States should stop blindly following the SMART Office’s instructions as “gospel”, because they will pay a hefty price in the end when they have to undo it all after a court rules against them.

Mary Devoy

Ruling could scrub quarter of sex offender registry
State's top court rejected fresh arguments by state officials

One-fourth of the names on Maryland's sex offender registry could be removed after the state's top court expanded Monday on an earlier ruling that adding offenders from before the list was created violated the state constitution.

The Court of Appeals declared last year that the state could not require the registration of people who committed their crimes before October 1995, when the database was established. State officials removed the one name in question in that case but maintained that federal law required them to keep older cases in the database. 

On Monday, the judges ruled in that case and another one that federal law doesn't override the state constitution.  

"Where we have declared the retroactive application of Maryland's sex offender registry to be unconstitutional, the State must remove [the men's] information from the registry," Judge Clayton Greene Jr. wrote for the court. 
Those who say the registries are punitive and do little to protect future victims hailed the ruling, but victims' advocates expressed disappointment. They see the registry as a useful tool to alert families to potential predators in their midst

As many as 1,800 of the state's 8,000 registered sex offenders could be affected by the decisions, and other cases are pending that could expand the number of people whose names are scrubbed. 

Maryland requires people convicted of certain sex crimes to register for 15 years, 25 years or for life, depending on the severity of their conviction, and publishes a searchable online database of those on the list. 

Lisae C. Jordan, the executive director of the Maryland Coalition Against Sexual Assault, said the ruling means Maryland will now need to look at other ways to track dangerous offenders. 

"We cannot rely on the registry," she said. "We need to take other steps." 

Nancy S. Forster, an attorney who argued the cases on behalf of the two men, said the court made clear that its decision should apply to anyone who was required to add their names to the registry even though their crimes took place before its creation. 

She pointed to language in Greene's ruling, noting that the constitutional issue applies not just to the men who had sued but also "individuals similarly situated in Maryland." 

"I believe this means that the state absolutely must remove these people automatically, without each individual having to go to court seeking removal," she said. "If the state does not remove them automatically, I will contemplate the need for a lawsuit." 
David Paulson, a spokesman for the Maryland attorney general's office, said the state's lawyers will review the decision before offering legal advice to the Department of Public Safety and Correctional Services, which manages the list. 

The state's high court was considering challenges brought by two men, who are identified in court records as John Doe and John Roe. 

Doe is Robert Merle Haines Jr., a former teacher who pleaded guilty in 2006 to a single court of child sexual abuse for a 1984 incident involving a 13-year-old student. John Roe has not been identified, but according to court records he was convicted of third-degree sex offense in 1997 for conduct involving a 14-year-old victim. 

The ruling last year was on Haines' case alone. It examined state laws from 2009 and 2010 that made registering a requirement even for those convicted before the creation of the database. 

The court ruled that requiring people to go back and register amounted to punishing them twice, a violation of the state's constitution. 

After losing that case, officials reluctantly agreed to remove Haines from the registry but vowed to keep on fighting.

They took the fight back to court, after a trial court judge ordered the removal of Haines' name from state and federal databases, and argued that federal law required that they keep the offenders' names on the list.

The Court of Appeals rejected that view. 

"The State cannot legally accept a sex offender's involuntary registration when that individual's registration is unconstitutional under Maryland law," Greene wrote. 

Forster, who used to head the state public defender's office, said she has other clients who are seeking to challenge their registrations. Some have been required under new laws to stay on the list for longer and others were convicted of offenses that did not originally lead to registration. 

Before the court ruling, Maryland was among 17 states that had earned good marks from the U.S. Justice Department for its compliance with federal sex offender laws.  

In a 2011 report, Justice Department officials thanked the state for "extensive work" in implementing the laws.

But Maryland has since joined six other states that have thrown out retroactive registration requirements as incompatible with their constitutions, according to a review of cases summarized in the opinion. Judges in Indiana also have rejected a similar federal law argument made by officials there. 

Jordan said that after the ruling, Maryland should start considering other ways to keep track of convicted sex offenders.

She proposed the creation of a private list only accessible to law enforcement and other officials, as well as a tool that examines the risk posed by any particular offender. 

Brenda Jones, executive director of Families Advocating Intelligent Registries, which opposes public offender lists, said some of Jordan's ideas make sense. A closed registry, she said, would allow law enforcement to concentrate on the most dangerous sex offenders. 

She welcomed the court's decision on the public registries. 

"They're a complete waste of taxpayer dollars," she said. "They do not protect anyone and only serve as a public shaming opportunity and way for vigilantes to cause problems for people who are just trying to move forward with their lives."