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Constitutional or Unconstitutional: Sex Offender Registration

 
 
The Constitutionality of Sex Offender Registration, Public Registries and the ever changing and expanding Federal, State and Local restrictions and regulations (via law) is a regular topic for writers, reporters and attorneys. 

Yes, the U.S. Supreme Court Smith v. Doe, 538 U.S. 84 (2003), ruled that registration is administrative not punitive but since 2003 every state took that ruling and ran with it as permission to restrict anything. 

Every state has piled on with residency restrictions, employment restriction, loitering restrictions, bans for parks, lakes, beaches, amusement parks, public fairs, golf courses, ski resorts, bowling alleys, movie theaters, museums, libraries, fast food establishments with play areas, graduation ceremonies in public arenas/theaters, bans in the ability to participate in Easter, Halloween or Christmas activities. Bans from all social media, mandates for home, vehicle, computer and phone searches at any time, mandates for displaying year round signs stating a sexual predator lives at the noted address, quarterly and annual registration fees in the hundreds of dollars, requiring the offender to print and mail residence notification postcards within a certain radius of their home, statutes that are left open for interpretation like loitering "where children congregate" which could be ANYWHERE and the list goes on and on and on. 

Now, 10 years later if the U.S. Supreme Court were to take on a Sex Offender Registration punitive case they would most likely rule that it is no longer administrative because of what the states have done with their laws. 

Attorney and Law Professor Catherine Carpenter covers these points in a 1 hour and 11 minute video presentation that I recommend everyone watch, Summer 2013: Sex Offender Laws / Registry and Constitutionality Issues .

As numerous U.S. Congress members and their Judiciary Assistants have told me over the years reform of the registries and the laws must first occur in the States with court challenges and then it will force the Federal Legislators and the U.S. Supreme Court to make changes. 

Mary Devoy 

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SMART Office Case Law used to push states into implementing AWA/SORNA 


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The first list below is of Appellate Court or State Supreme Court rulings of Constitutional violations for AWA/SORNA mandated laws. 

These unconstitutional rulings may have been a portion of the law (the retroactive application) or the entire law. Also newer challenges may have occurred after the date listed where the ruling may have been upheld, it may have been overturned or the state/city may have written a brand new less-restrictive or more specific law to see if it can stick those later changes may be or may not be noted below. 

Note as of May 2014: These lists are still being updated, if anyone sees a state missing under a specific category please email me the details and I will add them immediately, thank you!  
  

·         Arizona
o        September 2013- Sex Offender Registration Rules and Restrictions do not apply to Tribal Lands 

·         California
o        May 2004- Failure to Register, a defendant MUST know of the duty to register for life as a sex offender in order to be convicted of failure to register 

·         Connecticut
o        2001- Struck down the state's sex-offender registry, the judge found that the law violated the constitutional rights of past offenders, because their names were placed on the list without a chance to prove they are no longer dangerous to society. 

·         Florida
o        March 2004- Failure to Register, a defendant MUST know of the duty to register as a sex offender in order to be convicted of failure to register 

·         Georgia
o        2010-  Retroactive application of residency restrictions when a new park is built can not be applied to a current offenders residence 

·         Hawaii
o        2001- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation 

·         Indiana
o        April 2010- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation

o        September 2012- The appeals court said the state would benefit by developing procedures to correct registry errors: “Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public,” the ruling said.

o        July 2013- Juveniles must be allowed an evidentiary hearing which provides clear and convincing evidence that they are likely to re-offend before they can be placed on the sex offender registry. If an evidentiary hearing is continued, the juvenile must have continued representation by counsel at the subsequent hearings.  

·         Iowa
o        2011- Failure to Register, a defendant MUST know of the duty to register as a sex offender in order to be convicted of failure to register 

·         Kansas
o        July 2013- Retroactive extension of time required to remain on registry declared punitive

·         Maryland
o        March 2013- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation  

·         Massachusetts
o        March 2014- Retroactive addition of ALL current Level-2 Offenders (6,200) to a public on-line Registry that had only listed Level-3 Offenders until a July 2013 law was passed is unconstitutional.
The new 2013 law to list Level 2 Offenders on-line who are convicted after July 2013 is valid but not those convicted BEFORE the law became effective.

·         Michigan
o        June 2002- ruled that Michigan's sex-offender registry is unconstitutional, saying it lacks a way for people to challenge the government's claim that they are a danger to society. The list fails to distinguish between sex criminals who pose a continuing risk and those who do not. U.S. District Judge Victoria Roberts said the law violated the 14th Amendment, which guarantees the right to due process.

o        November 2009- Mandate for registration in consensual sex is punitive not administrative, “cruel and unusual punishment” 

·         Missouri
o        2006- Retroactive mandate to register for convictions before the registry existed is an ex post facto violation 

Note: In 2007, Missouri Senators rewrote their State Constitution excluding RSO’s from ex post facto it passed. Then in 2009 on appeal all RSO’s that had been removed from the registry based on the 2006 ruling were put back on the registry. 

·         Montana
o        September 2009- Retroactive mandate to register for juveniles declared punitive not administrative 

·         Nevada
o        December 2011- Retroactive/mass re-classifications and residency restrictions. "The application of these laws retroactively is the equivalent of a new punishment tacked on to the original sentence," the judge wrote in the injunction. 

·         Oklahoma
o        June 2013- Restrictions imposed upon registered sex offenders are in fact punitive and not administrative. Also in the ruling the court stated that any retroactive application of laws including re-classifications and prolonging their required time to remain a registered offender are all unconstitutional.  

·         Ohio
                                Four State Supreme Court rulings against AWA:
o        June 2010- Retroactive/mass re-classifications
o        April 2011- Retroactive mandate to register for convictions before the act existed
o        July 2011- AWA registration declared punitive not administrative
o        April 2012- Retroactive mandate for lifetime registration for juveniles 

·         Pennsylvania
o        January 2014- Mandate lifetime registration for juveniles violates their rights under the Pennsylvania Constitution
o        November 2013- Mandate lifetime registration  for juveniles declared unconstitutional for improperly treating juveniles the same as adultso
 

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The next list is of Appellate Court or State Supreme Court rulings of Constitutional violations for State or Local (County/City) laws that carry criminal penalties that are not mandated by the SMART Office to be AWA/SORNA certified. 

These unconstitutional rulings may have been a portion of the law (the retroactive application, etc) or the entire law.  

Also newer challenges may have occurred after the date listed where the ruling may have been upheld, it may have been overturned or the state/city may have written a brand new less-restrictive or more specific law to see if  the revised version would be upheld in a new challenge. These follow-up cases may be or may not be noted below.
 

1- Residency Restrictions - Local (City, County) 

2003/2013:
o        Colorado
2009:
o        New Jersey
2010:
o        Pennsylvania
2011:
o        New York 

2- Residency Restrictions – State 

2007:
o        Georgia
o        Missouri 
2007/2008/2013:
o        Ohio
2008:
o        Indiana
2009:
o        Kentucky
2010:
o        California 

3- Employment Location Restrictions (distance from a school, daycare, bus stop, park and/or library) 

2007:
o        Georgia 

4- Employment as a State Transportation Employee Revoked for Being a Registered Sex Offender 

2004:
o        New Mexico 

5- Retroactively classifying a Defendant as a Sexually Violent Predator (SVP) under an expanded statute 

2008:
o        Indiana 

6- Classifying a Defendant as a Violent Sexual Predator (VSP) / Sexually Violent Predator (SVP) Without an Evidentiary Hearing Violates Due Process 

2009:
o        Idaho 

7- Prohibiting and Criminally Charging Registered Sex Offenders from Loitering in “Community Safety   Zones” 

2011:
o        South Dakota 

8- Including a Dance Studio Under the Loitering in School Safety Zone Statute 

2008:
o        Delaware 

9- Access to Social Media/Facebook/Twitter/My Space/ Instagram/ Twitter/ Pinterest/ Match.com/ LinkedIn/Chat rooms/

2009/2012:
o        Nebraska
2012:
o        Louisiana
2013:
o        California
o        Indiana


* May 2014- I believe there are laws banning RSO's from Facebook also in New York, New Jersey and Illinois, I am not aware of any court challenges in those states- Mary D.

10- Access to Public Libraries 

2012:
o        New Mexico 

11- Access to Churches, Temples and Mosques

2010:
o        Georgia

12- Charging Registration Fees 

2008:
o        Nevada
2013:
o        Wisconsin

13- Making Homelessness (no specific residence to Register) a Crime 

2008/2010:
o        Georgia 

14- Mandating Email Addresses, Instant Messenger, User Names, On-line Identities, Internet Providers and/or All On-line Passwords be Given to Authorities 

2013:
o        California

15- Required all RSO to subject themselves to searches, monitoring of their computers and cell phones 

2012:
o        Nebraska 

16- Requiring a RSO to re-register after a new arrest 

2012:
o        West Virginia 

The State Police did not have the right to arrest a Tyler County man for failure to re-register as a sex offender upon his release from jail in 2010, the West Virginia Court of Appeals said.

After a one-night stay in a Regional Jail, the Defendant returned to his previously registered home. Police arrested the defendant because he did not complete a new sex offender registration form. According to the State Police's form, an offender must re-register with three days "of release from an institution."

Sex offenders are only required to re-register their information following a conviction -- not after an arrest, the Appeals Court ruled.
 

17- Mandating Signs in Front Yard/on Front Door/ or on Vehicle 

See the 2009 Kansas Ruling below

18- Mandating Chemical Castration for First Time or Second Time Offenders

 
19- Crimes Against Nature (Oral and Anal Sex) Between Consenting Adults a Crime 

2013:
o        Louisiana
 

A decision in Kansas in 2009 State v Schad needed to be noted on this page but it did not fit neatly under any of the above categories.  

After pleading no contest a defendant was placed on 60 months' probation.  

A trial court imposed several probation conditions that included placing the defendant him under house arrest, forbidding him from grocery shopping, and ordering him to place signs, with letters at least 4 inches tall, stating that a "sexual predator lives here" on all four sides of his property AND stickers similar to what "campaign people" use on both sides of his car that state “sexual predator”. 

The defendant filed the appeal so then the State moved to revoke the defendant probation for failure to comply with the conditions of his probation. The State maintained that the defendant had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. 

After holding a nonevidentiary hearing, the trial court granted the State's motion to revoke the defendants probation. The trial court modified the language in its earlier order and required the defendant to place signs on his property stating that a "Sex Offender Lives Here" (instead of "sexual predator lives here") and on his car stating that "Sex Offender In This Car" (instead of "sexual predator").
 
In the 2009 decision the Court of Appeals severed the conditions of probation requiring the defendant to post signs around his house and on his car AND the no grocery shopping order.


U.S. Department of Justices Stance on Sex Offender Registration Being Constitutional: 

August 2013
Sex Offender Registration and Notification in the United States: Current Case Law and Issues                  http://ojp.gov/smart/caselaw/handbook_august2013.pdf 
 
January 2008-2009
Sex Offender Registration and Notification in the United States: Current Case Law and Issues                  http://ojp.gov/smart/caselaw/caselawsum.pdf
 
July 2013-
Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250