Archive for January 18, 2010

Sex Offender Laws & the Ex Post Facto Clause

January 18, 2010 Comments off

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.


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.


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.


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.


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.


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:
and here:

Sex-offender Residency Restrictions : Knee-Jerk Reaction

January 18, 2010 Comments off Sex-offender restrictions generate debate in Boulder County.

Research, lawsuits reduce popularity of Sex-offender restrictions

About 30 states restrict where sex offenders can live. Colorado doesn’t have a statewide law, leaving it up to individual communities.
Creating sex-offender-free zones became popular in 2005 after the highly publicized murder of a 9-year-old girl, Jessica Lunsford, in Florida by a sex offender who moved to her neighborhood. Since then, legal challenges and research calling into question the effectiveness of those measures have led some places to reconsider. Research generally shows that forbidding offenders from living near schools doesn’t reduce recidivism rates.

Boulder County Sheriff Joe Pelle said the law requiring sex offenders to register helps officers keep track of them. Impose residency restrictions, he said, and sex offenders are likely to go underground, move to remote areas or fail to register at all.

Restrictions dubbed “knee-jerk”

Another detractor is Michael Dell, who was convicted of sexual assault in Boulder in 1999 and is a board member of Colorado CURE, a national organization that advocates for prisoners and former inmates. He said residency restrictions are based on the false assumption that registered sex offenders are highly likely to reoffend and to target strangers. “The majority of offenses take place in the home from families or close associates (over 90% according to USDOJ studies) ,” he said. “Only a small number of cases involve strangers, but that’s what the fear is based on. Residency restrictions are a knee-jerk reaction and give a false sense of security.”

Broader questions include whether residency restrictions would hinder the reintegration of offenders into society, along with whether the restrictions would prevent sex crimes.

As far as Louisville police could determine, no registered sex offenders have reoffended while living in the city, he said. Louisville’s sex-offender registry also has never included a “sexually violent predator.” Lafayette’s police department looked into residency restrictions in late 2009 but decided not to move forward because, Police Chief Paul Schultz said, “I can’t find an expert who thinks it’s a good idea.”

He mapped out a 1,200-foot-buffer around schools, parks and swimming pools in the 9.3-square-mile city, which has about 45 registered sex offenders in all. The result, he said, was such a limited area where sex offenders could live that it would essentially banish them from the city.

Restrictions counterproductive?

Chief Schultz cited a 2009 research paper produced for Colorado’s Sex Offender Management Board in his decision to stay away from residency restrictions. The research suggests that residency restrictions don’t protect the community from sex offenders and can instead hurt public-safety efforts.

Cathy Rodriguez, who spent six months researching the paper for the Sex Offender Management Board, said residency restrictions tend to be popular. “It’s a feel-good thing,” she said. “The community wants to feel safe.” The problem is, she said, “When you sit down and look at it objectively, it doesn’t make sense. I’ve yet to read research that supports it.”

She said it’s already a challenge for many sex offenders to find places to live, especially those who’ve recently been released from jail. Living with family members is common, but that may not be an option when residency restrictions are in place. That can force offenders to move to remote areas, away from support systems, in turn increasing the likelihood that they’ll reoffend. Others may fail to register altogether. “Residency restrictions can create a huge barrier,” she said.

Rodriguez, the sex-offender management board researcher, said the verdict is still out on whether those are effective in reducing sex-offender recidivism rates.