IL to Add Tens of Thousands of Names to Sex Offender List

cbs2chicago.com: Under Measure, No One Convicted Before Registry Took Effect Would Be Able To Skirt Requirement.

Springfield, Ill. (CBS) ―The names of tens of thousands of sex offenders may soon be added to the state registry. These are offenders who have come off the list or were never put on it because they committed their crimes prior to 1999.

State Sen. Iris Martinez (D-Chicago.) created the bill. Martinez doesn’t think there should be any grandfather clause when it comes to sex offenders.

The legislation would require all adult sex offenders to be registered no later than five days after the bill goes into law. The bill — which was also sponsored by State Rep. Deb Mell — is now headed to the governor’s office.

Adam Walsh Act Changes are a Win for States

stateline.org: Adam Walsh Act changes are a win for states.

The U.S. Justice Department has proposed major regulatory changes to the Adam Walsh Act, a 2006 federal law requiring all states to crack down on sex offenders by July or risk losing hundreds of millions of dollars in federal grant money.

The proposed changes, which were posted in the Federal Register on Friday (May 14) and face a two-month public comment period, address some of the most controversial provisions of the law, which many states have criticized as cost-prohibitive and overly strict.

As Stateline has reported, however, many states disagree with key provisions of the law that they see as too strict, including a stipulation that some juvenile sex offenders as young as 14 be placed on public registries. In Delaware, as the Wilmington News-Journal recently reported, some offenders as young as 9 are listed on the public sex offender Web site. Youth advocates and others have said that posting images and personal information of juveniles can lead to harassment, and that juveniles should not be grouped with more serious, adult criminals. The changes proposed Friday give states the discretion to decide if they want to include juveniles on their registries.

Under another proposed change, sex offenders whose crimes pre-dated the Adam Walsh Act, and who have exited the justice system, would not be forced to abide by its registration requirements. While courts have found the provision constitutional — holding that registration is not a new criminal penalty but a civil, regulatory requirement instead — states have argued that it is overly burdensome to track down and register sex offenders who already have served their time and re-joined the population. The Justice Department recognized that concern, giving states “greater latitude” not to register certain offenders. (This does not mean that states will remove retro-activity from their laws, but only that the AWA requirements will allow them to do so if they choose. States like Ohio, which already require past offenders to register would have to change their laws if they choose to remove past offenders from the registries….unlikely in this political climate)

“It may not be possible for jurisdictions to identify and register all sex offenders who fall within the (Adam Walsh Act) registration categories, particularly where they have left the justice system and merged into the general population long ago,” the new rules say.

Only one state — Ohio — has complied with the Adam Walsh Act so far. Several others have asked for a one-year extension to meet the law’s demands. U.S. Attorney General Eric Holder already has granted all states a one-year extension, underscoring the difficulty states have had in complying with the law.

While there is broad political agreement on the overall goals of the Adam Walsh Act, the changes proposed Friday show that states’ concerns are being heard in Washington, D.C. Members of Congress also have acknowledged that they may have overreached with the legislation.

ACTION ALERT: PROPOSED Additional Adam Walsh Act Guidelines

It has come to our attention, via Sexoffenderresearch and SentencingLaw&Policy, that today the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

* Gives jurisdictions discretion to exempt juvenile offenders from public website posting
* Provides information concerning the review process for determining that jurisdictions have substantially implemented
* Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
* Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
* Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
* Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
* Requires jurisdictions to have sex offenders report international travel 21 days in advance
* Clarifies mechanism for inter-jurisdictional information sharing and tracking.

They are posted in today’s Federal Register. Interested parties have 60 days to submit comments. Find the document here. Or here. Or here in PDF format.

Excerpts:

Overview
The Sex Offender Registration and Notification Act, which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109–248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901 et seq.) establishes minimum national standards for sex offender registration and notification in the jurisdictions to which it applies. SORNA directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA.

Since the publication of the SORNA Guidelines, issues have arisen in SORNA implementation that require that some aspects of the Guidelines be augmented or modified. Consequently, the Department of Justice is proposing these supplemental guidelines, which do the following:

(1) Allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public Web site posting. (allow states to take minors off of the public Internet registry only)

(2) Require jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a. (disallow Internet public registry to post offender’s email addresses and Internet identifiers)

(3) Require jurisdictions to have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate Federal agencies and databases. (to sneak in the proposed International Megan’s Law; restricts international travel and monitors such travel)

(4) Clarify the means to be utilized to ensure consistent inter-jurisdictional information sharing and tracking of sex offenders. (sharing information between states, and perhaps countries)

(5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations. (this is a legal protection effort by the Feds to protect themselves legally. Some jurisdictions already do this)

(6) Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements. (because only one state (Ohio) has “substantially complied”)

(7) Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony. (allow states to avoid retro-active implementation, but does not forbid it. This seems to allow continued retro-active implementation on anyone already on the registry.)

(8) Provide, for Indian tribes that are newly recognized by the Federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA.

IV. Retroactive Classes
SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction. See 73 FR at 38035–36, 38043, 38046–47, 38063–64. This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction. See 73 FR at 38046.

Experience supports a qualification of this assumption in relation to sex offenders who have fully exited the justice system but later reenter it through a subsequent criminal conviction for a non-sex offense that is relatively minor in character. (Where the subsequent conviction is for a sex offense it independently requires registration under SORNA.) In many jurisdictions the volume of misdemeanor prosecutions is large and most such cases may need to be disposed of in a manner that leaves little time or opportunity for examining the defendant’s criminal history and ascertaining whether it contains some past sex offense conviction that would entail a present registration requirement under SORNA. In contrast, where the subsequent offense is a serious crime, ordinary practice is likely to involve closer scrutiny of the defendant’s past criminal conduct, and ascertaining whether it includes a prior conviction requiring registration under SORNA should not entail an onerous new burden on jurisdictions.

These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.

This allowance only establishes the minimum required for substantial implementation of SORNA in this context. Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction’s registration law.

TAKE ACTION: Submit Your Comments (read and follow instructions carefully)

DATES: Written comments must be postmarked and electronic comments must be submitted on or before July 13, 2010. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.

ADDRESSES: Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531.

To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an electronic version of these proposed guidelines at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Linda M. Baldwin, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, 202–305–2463.

SUPPLEMENTARY INFORMATION: Posting of Public Comments
Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by
the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONAL IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want
redacted.

Illinois Retroactive Sex Offender Law Passes Unopposed

Illinois Voices reports that Illinois Passes Retroactive Sex Offender Registration Bill.

Senate Bill SB3084 96th General Assembly
Status: 5/7/2010 – Passed Both Houses
Short Description: SEX OFFENDER REGISTRATION-RETROACTIVE

Senate Sponsors
Sen. Iris Y. Martinez – William Delgado – John J. Millner – Toi W. Hutchinson – Jacqueline Y. Collins, A. J. Wilhelmi and Emil Jones, III

House Sponsors
(Rep. Deborah Mell – Raymond Poe – Dennis M. Reboletti, Linda Chapa LaVia, Jack D. Franks, Michael K. Smith, Charles E. Jefferson, Keith Farnham, Carol A. Sente and Robert F. Flider)

Synopsis As Introduced:
Amends the Sex Offender Registration Act. Provides that a person is required to register as a sex offender who was not previously required to register before the effective date of this amendatory Act because the sex offense that the person committed occurred before a specified date. Requires that person to register within 5 days after the effective date of this amendatory Act. Provides that if the person is confined, institutionalized, or imprisoned in Illinois on or after the effective date of this amendatory Act, he or she shall register in person with the local law enforcement agency within 5 days of discharge, parole, or release. Provides for the duration of the registration. Effective immediately.

Retro-active (or Ex Post Facto) laws are prohibited by the United States Constitution (Section 9) and by most State Constitutions, as well. See U.S. Constitution : Ex Post Facto Lesson. Illinois now joins the infamous ranks of Ohio and Nebraska as being one of the corrupt state governments which have enacted retro-active “punitive” laws upon any resident who has committed any sex-related offense anytime in their life. These laws impose punishment, restrictions and life-long requirements to register (often with imposed fees) on those who were convicted or pleaded of any sexually-orientated crime at any time in their lives.

Illinois citizens must contact their representatives ( and bill sponsors who are listed above) to express to them your opposition to this illegal legislation. Remember that these people are your servants and they work for you, as a voting citizen. You should be respectful (only because they will not listen to you otherwise) but firm and direct. You should tell them to repeal this illegal law immediately.

Then, all those affected directly by this law need to begin the process of legally challenging this law in the Courts. See here for sample legal motions and information about how you can challenge the law pro se (yourself without an attorney). Illinois people should also contact the Illinois Public Defender Office to urge them to assist, as the Ohio Public Defender Office has in these efforts.

US Supreme Court Denies Kentucky AG Petition

On October 1, 2009, The Supreme Court of Kentucky ruled that a law limiting where registered sex offenders can live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented. The law prohibits sex offenders from living within 1,000 feet of playgrounds, daycare centers and schools, and changed how the distance is measured.

The court, in a decision dated Oct. 1, said the law is punitive in nature and violates the ex post facto clause in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes.

Kentucky Attorney General Jack Conway tried to resist this ruling and continued to enforce the law retroactively (and illegally) while he petitioned the United States Supreme Court for further review. His petition was denied by SCOTUS on March 8, 2010.

Case Nos. 2006-SC-000347-CL
Kentucky Attorney General’s Office (502)-696-5342
1024 Capitol Center Drive
Frankfort, KY 40601
jason.moore@ag.ky.gov

LA: Appellate Court Overturns Sex Offender Rule

2theadvocate.com (Louisiana): Judges overturn sex offender rule.

Finally a sane court rules that these retro-active registration laws are indeed punitive in nature !

An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.

The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.

Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.

Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.

Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters. Driver’s licenses for sex offenders must be renewed annually.

The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.

The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.

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.”

The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says.
————————————–
This decision can be read here:
Case Numbers 2009 CA 1765 and 2009 CW 1169
JIMMY L SMITH VERSUS STATE OF LOUISIANA – March 26 2010

Excerpts:
“Based on the particular facts of this case we find that the application of the amended provisions of LaRS51454 as amended by 2007 La Acts No 460 and as amended by 2008 La Acts Nos 462 and 816 to Mr Smith is so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him. Louisiana Megan’s Law has a legitimate civil purpose – to alert and protect the public from sex offenders who may offend again. The provisions of Megans Law were already imposed on complied with and fulfilled by Mr Smith. Thus the purpose of Megans Law has been served. To now impose additional time on Mr Smith duty to register after his duty had already terminated either for his lifetime or for an additional five years imposes a
significant affirmative obligation on him. Because Megans Law’s non punitive purpose has already been served by Mr Smith’s compliance with the statute, this new additional affirmative obligation is excessive in relation to Megans Law’s non punitive purpose as it is being applied without regard to Mr Smith risk of re offending. Thus placing the burden on Mr Smith to re register as a sex offender for the duration of his life or for an additional five years after his duty to register had already terminated constitutes another punishment for his offense.”

“Additionally requiring Mr Smith either for the duration of his lifetime or for an additional five years to re register as a sex offender and to comply with the community and public notification procedures would also impose a new financial burden on Mr Smith.

“An offender who serves the entirety of his sentence and upon release is subjected to a new financial burden that was not in place when he committed his crime is not merely subjected to a regulatory cost but rather an affirmative disability amounting to punishment.”

“As we have concluded that the application of the amended provisions of La RS 51454 as amended by 2007 La Acts No 460 and as amended by 2008 La Acts Nos 462 and 816 transforms what was intended as a civil remedy into a punitive one for him thereby increasing the penalty by which his crime is punishable the retroactive application of those amendments to Mr Smith violates the United States and Louisiana constitutional prohibitions of ex post facto. Accordingly the judgment of the trial court ordering Mr Smith to register as a lifetime sex offender pursuant to the amended provisions of La SR 51454 is hereby reversed.”

“Furthermore because we can find no statutory authority nor have we been directed to any other applicable statutory authority by which the State can command Mr Smith to reregister as a sex offender for the duration of his life or any further time period as Mr Smith has already fulfilled his duty to register as a sex offender for the requisite period of time under the provisions of former La SR 51454 applicable to his case we hereby render judgment prohibiting the State from enforcing the provisions of LaRS 51450 et seq against Mr Smith
with regard to the convictions for the two sexual offenses addressed herein.”

Maine House Vote OK’s Sex Registry Waivers…well maybe

kjonline.com: Maine House Vote OK’s Sex Registry Waivers.

Augusta — The House voted Tuesday to allow some people convicted of a single sex offense more than a decade ago to ask to be removed from the state’s sex offender registry.

(This appears to be a political con-job. Most prosecutions and plea agreements assure that at least two charges are made to avoid such laws. Laws such as those to “expunge a first-time felony” only apply to one charge. Thus, they avoid allowing anyone to successfully apply for such exemptions.)

The bill, L.D. 1822, reflected a December opinion of the Maine Supreme Judicial Court that forcing some people to register and notify police of their addresses violated Maine and United States constitutions by imposing what amounted to punishment after sentencing.

The first sex offender registry in Maine was created in 1992. More crimes were added to the list of those requiring registration during the 1990s. A 1999 law required convicts to notify police of their addresses annually or every three months, depending on the offense.

A 2001 law made the 1999 law retroactive so that anybody convicted of certain sex offenses after 1992 also had to register. The so-called “look-back” mechanism was extended to 1982 in 2005.

Four years later, lawmakers enacted a law allowing people with a single sex conviction between 1982 and 1992 and no subsequent felony or sex convictions to apply for a registry waiver. As of January, 430 of 3,200 registrants who potentially would be eligible applied; 175 waivers were granted, said Rep. Anne Haskell, D-Portland, co-chairwoman of the Criminal Justice and Public Safety Committee.

The bill voted Tuesday would also allow people with a single sex-offense conviction between 1992 and 1999 to ask the department for a waiver if he or she did not then commit another sex offense or felony.

“There are some people who we need to know where they are all the time, and there are some people who will never be a threat to us,” Haskell said. Haskell said she plans to introduce a bill to modernize the state’s sex offender registry and notification system next year.

Download LD 1822 here.

Bill Excerpts:
“Whereas, in order for the Legislature to respond to the Law Court’s concerns raised regarding
the constitutionality of certain provisions of the Sex Offender Registration and Notification Act of 1999
prior to the March 31, 2010 expiration of the stay of the Law Court’s decision in State v. Letalien, this
legislation must take effect as expeditiously as possible;”

“1. Exception. Notwithstanding section 11202, a person is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following:

A. The person was sentenced in the State on or after January 1, 1982 and prior to June 30, 1992
and was finally discharged from the correctional system at least 10 years prior to submitting documentation to the bureau under this section; the person was sentenced in the State on or after June 30, 1992 and prior to September 18, 1999 and was finally discharged from the correctional system at least 10 years prior to submitting documentation to the bureau under this section; the person was sentenced in another jurisdiction, was finally discharged from the correctional system at least 10 years prior to submitting documentation to the bureau under this section and has been in compliance with the registration duties as a resident required under
subchapter 2 since September 12, 2009; or the person was sentenced in the State on or after September 18, 1999 and prior to July 30, 2004 for a violation of former Title 17A, section 252 and was finally discharged from the correctional system at least 10 years prior to submitting documentation to the bureau under this section. For purposes of this paragraph, “finally discharged from the correctional system” includes completion of probation;”

“B. The person’s convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date;

C. At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense;

D. At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense;

E. Subsequent to the commission of conviction for the sex offense or sexually violent offense, the person has not been convicted of a crime under Title 17 or Title 17A in this State that is punishable by imprisonment for a term of one year or more; and

F. Subsequent to the commission of conviction for the sex offense or sexually violent offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less.”

State of Ohio vs Nixon – Contract Clause Challenge

NIXON v. STATE ; Bradley Nixon, Petitioner-Appellee,v. State of Ohio
2010-Ohio-767 – Appeal No. C-090219.
Court of Appeals of Ohio, First District, Hamilton County.
Date of Judgment Entry on Appeal: March 5, 2010.

Ohio Justice & Policy Center, Margie Slagle, and David A. Singleton, for Petitioner-Appellee.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellant.

Download Decision (PDF)

DINKELACKER, Judge.

{¶1} On July 27, 2001, petitioner-appellee Bradley Nixon pleaded guilty in a plea bargain to one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). The court accepted Nixon’s plea, found him guilty of gross sexual imposition, and imposed five years’ community control. The sentencing entry stated that Nixon was “found to be a sexually oriented offender.” Under former R.C. Chapter 2950, Nixon was required to annually register as a sexual offender for ten years.

{¶2} In 2007, the General Assembly enacted Am.Sub.S.B. No. 10 (“Senate Bill 10”) to implement the federal Adam Walsh Child Protection and Safety Act of 2006. Senate Bill 10 amended various sections of R.C. Chapter 2950. Nixon was notified that he had been reclassified under Senate Bill 10 as a Tier I sex offender and that he was required to annually register with the local sheriff for 15 years.

{¶3} Nixon filed an R.C. 2950.031(E) petition to contest his reclassification, challenging the constitutionality of Senate Bill 10. After a hearing, the trial court granted Nixon’s R.C. 2950.031(E) petition. The court found that reclassifying Nixon as a Tier I sex offender under Senate Bill 10 constituted a breach of his plea agreement and an impairment of an obligation of contract, in violation of Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution, because his plea agreement was a contract with the state of Ohio that he would be obligated to register as a sex offender for only ten years.

{¶4} The state’s sole assignment of error alleges that the trial court erred in granting Nixon’s R.C. 2950.031(E) petition on the basis that his plea agreement constituted a contract that he would have to register as a sex offender for only ten years.

{¶5} Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution provide that no laws shall be passed that impair the obligation of contracts. “[A]ny change in the law which impairs the rights of either party, or amounts to a denial or obstruction of the rights accruing by contract, is repugnant to the Constitution.”[ 1 ] Because plea agreements are contracts between the state and criminal defendants, principles of contract law are applicable to their interpretation and enforcement.[ 2 ]

{¶6} We held in Burbrink v. State[ 3 ] that the retroactive application of Senate Bill 10’s tier-classification and registration requirements to a sex offender who had pleaded guilty to a sexually-oriented offense pursuant to a plea bargain under former R.C. Chapter 2950 did not violate the Contract Clause of the Ohio and United States Constitutions, because when the offender entered his plea he had no reasonable expectation that his sex offense would never be made the subject of future legislation and no vested right concerning his registration duties. Senate Bill 10’s tier-classification and registration requirements are remedial, collateral consequences of the underlying criminal sex offense, and they do not affect a plea agreement previously entered between the state and the offender.[ 4 ]

(Once again, ignorant and uninformed judges refuse to find these restrictions and requirements as being the punishment that they clearly are.)

{¶7} We pointed out in Burbrink that, under former R.C. Chapter 2950, an offender who pleaded guilty to a sexually-oriented offense was by operation of law a sexually-oriented offender who had to register annually for ten years. By not requesting a higher sexual-offender classification, the state had fulfilled its part of the plea agreement.[ 5 ] Once the offender had pleaded guilty and had been sentenced, both he and the state had fulfilled their respective parts of the plea agreement, and no action taken after that time could have breached the plea agreement.[ 6 ]

{¶8} In White v. State,[ 7 ] we held, relying on Burbrink, that the retroactive application of Senate Bill 10’s tier-classification and registration requirements did not constitute a breach of White’s plea agreement or an impairment of his right to contract where the April 19, 1999, entry withdrawing White’s not-guilty plea and entering his plea of guilty to sexual battery stated that he would be classified as a sexually-oriented offender rather that a sexual predator.

{¶9} We hold in this case that pursuant to Burbrink and White the retroactive application of Senate Bill 10’s tier-classification and registration requirements did not violate the Contract Clause of the Ohio and United States Constitutions because it did not impair Nixon’s rights under any contract with the state of Ohio that, under his plea agreement, he would be obligated to register as a sex offender for only ten years. The application of Senate Bill 10’s registration requirements did not constitute a breach of Nixon’s plea agreement or an impairment of his right to contract. Therefore, the trial court erred in granting Nixon’s R.C. 2950.031(E) petition. The assignment of error is sustained.

{¶10} The judgment of the trial court is reversed, and this cause is remanded for the trial court to enter an order reflecting that Senate Bill 10’s tier-classification and registration requirements are applicable to Nixon as a Tier I sex offender.

Judgment reversed and cause remanded.
Cunningham, P.J., concurs.
MALLORY, JUDGE, concurring in judgment only:

{¶11} I agree that the judgment of the trial court must be reversed in this case, but not for the reasons expressed by the majority. I would reverse the trial court’s judgment on the basis that the record does not contain sufficient evidence that Nixon’s ten-year registration requirement was a term of his plea agreement. The record simply does not support the trial court’s determination that there was an agreement between the state and Nixon as to his sexual-offender classification and registration requirements. Therefore, the retroactive application of Senate Bill 10’s tier-classification and registration requirements does not impair any contract between Nixon and the state or violate his constitutional right to contract.

{¶12} There may be a case in which the record demonstrates that the terms of a plea agreement between the state and a sexual offender constituted a valid contract as to the offender’s classification and registration requirements. I do not foreclose the possibility that in such a case the retroactive application of Senate Bill 10’s tier-classification and registration requirements may be an unconstitutional impairment of contractual obligations and a violation of the offender’s right to contract.

Transcripts of SCOTUS Ex Post Facto Oral Arguments

Sentencing Law & Policy: Today’s SCOTUS sex offender Ex Post oral argument transcripts

We now have a chance here to post the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341). I fear I won’t have a chance to read these transcripts for a while, but perhaps readers can note any important highlights we have missed.

Let us be clear: This case is convoluted, for sure, and difficult to follow the details of the facts and law. But the essence of this case is this:

1. Mr. Carr committed a sex offense in 2004 in Alabama. After his release , he registered in Alabama.
2. Later in 2004, he moved to Indiana where he did not register.
3. His failure to register in Indiana was discovered in 2007 when he was indicted under SORNA.
4. The Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act was enacted on July 27, 2006.

Therefore, this case argues that SORNA, which did not exist when Mr. Carr moved in 2004, should not apply. Mr. Carr moved before SORNA made it illegal for him to move and fail to register. Now, each state has its own registration laws and if Indiana law required him to register, then he could be held liable within that state. But this case revolves around a federal prosecution under a law which did not exist when Mr. Carr violated it.
So…while this is a retroactivity (Ex Post Facto) case, it is somehwat different than the Ex Post Facto challenges on SORNA itself, which challenge whether SORNA can be applied retroactively, as it relates to extending registration requirements. Having said that; it is a very important test case of how the US Supreme Court will rule on retroactive SORNA laws.

Excerpts:

JUSTICE BREYER: Well, what is the basic purpose of this statute? I’m having a hard time with it. Is it — is the purpose of the statute to try to get a lot of people to register who haven’t registered at all? Or is the purpose of the statute to get the people who had registered in one State and then moved, and make sure they register in another State?

MR. ROTHFELD: I think that the purpose was generally to encourage registration of sex offenders. Now, of course, when — when Congress wrote the statute, as — as has been pointed out, it was not apparent to them that it was going to apply to people who had committed sex offenses before SORNA was enacted at all. That turned upon the Attorney General’s subsequent determination.

JUSTICE BREYER: No, I mean if they are just trying to get people to register in general, and they are not particularly worried about travel, then they are using this travel as a kind of jurisdictional hook. And if they are using it as a jurisdictional hook, they would like to get everybody, as many as possible, that argues against you.

MR. ROTHFELD: Well, two points –

JUSTICE BREYER: I — I — I have a hard time seeing just what they are aiming at.

MR. ROTHFELD: Well, it — it’s — to — to be honest, I think it’s not entirely clear that Congress had anything specific in mind beyond a reaction to the prior regime in which there were inconsistent approaches being taken by the States.
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JUSTICE SCALIA: I don’t know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That’s the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that — that would later justify registration. It seems to me you are just making up the — the prior act that — that triggers the interstate travel requirement.

MR. GANNON: Well, I don’t think that we are making it up, Justice Scalia.

JUSTICE SCALIA: Well, what text do you base it on? One says “is required to register,” and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it’s after you commit the offense that you must travel on interstate. Where do you get that from?

MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders. The fact that the purpose of the statute is to recapture missing sex offenders, which are persons who engaged in interstate travel to elude the registration requirements that already apply to them as sex offenders. And so we think that when Congress invoked the — its powers to regulate travel and interstate commerce, in order to give that element meaning, we think that it makes sense to apply it to persons who already have the type of sex offense convictions that SORNA requires them to register for.

CHIEF JUSTICE ROBERTS: So your answer to Justice Scalia is that you don’t get it from the language? We get it from the anomaly, you get it from the purpose.
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JUSTICE BREYER: Do you find any where -where they were both phrased in present tense and it was pretty clear that Congress intended to catch activity that was — at least where the jurisdictional part took place before the statute took effect? You find that good an analogy anywhere?

MR. GANNON: I — I’m not aware of — of a provision that’s — that’s phrased like that-

CHIEF JUSTICE ROBERTS: I — I tried to find one and — and couldn’t. I mean, looking up travels in — in the code, in each of those cases that I found it’s always — it looks like it’s — it’s linked directly to the activity that’s meant to be covered. You know, traveling for the purpose of the — the activity that’s against the law.

MR. GANNON: It’s — that’s — that’s true — in most instances in which Congress has an interstate travel element, that’s true. In some — in some cases like the — the statute at issue in the Trupin case about possession of — of — of stolen goods that have traveled in interstate commerce, that -that’s — that’s — that’s an invocation of-

JUSTICE SCALIA: Yes, where — where it means prior travel, it says so, use of a firearm that has traveled in interstate commerce. They use the past tense when they mean it.
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JUSTICE ALITO: But all of those provisions refer now, as a result of the Attorney General’s determination that pre-SORNA convictions qualify, all of those provisions use the present tense to refer to activities that can have taken place in the past.

MR. ROTHFELD: That is correct. At the time that Congress wrote those civil provisions, this statute, on its face, applied prospectively only. The Attorney General had not yet retroactively applied it. Congress specifically gave the Attorney General the authority to apply it retroactively in defining which offenders had to register. It did not give him any authority to retroactively change the scope of the –
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JUSTICE ALITO: Well, Mr. Gannon may have made an argument that is not helpful to his position. But can you accept that the first provision means exactly what it says: “Is required to register.” And that takes effect on day when SORNA is enacted.

SCOTUS, SORNA and the Ex Post Facto Clause

scotusblog.com: SORNA and the Ex Post Facto Clause -Carr v. United States, Argument preview.

Below, Kate Neilson of Harvard Law School previews Carr v. United States (08-1301), one of two cases to be heard by the Supreme Court on Wednesday, February 24. Check the Carr v. United States SCOTUSwiki page for additional updates.

The federalization of sex offender policy began in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). Twelve years later, Congress expanded and strengthened registration programs in the Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act. Among other things, SORNA in 18 U.S.C. § 2250(a) created a new felony that penalizes sex offenders who are required to register under SORNA but knowingly fail to do so after traveling in interstate or foreign commerce. SORNA also authorized the Attorney General to determine whether and how the statute’s registration requirements applied to sex offenders convicted before the statute was enacted; on February 28, 2007, the Attorney General issued a regulation in which he indicated that SORNA’s registration requirements applied to all sex offenders, including those who were convicted prior to the statute’s enactment.

On February 24, in No. 08-1301, Carr v. United States, the Court will consider the application of SORNA’s registration requirements to individuals who not only were convicted before SORNA’s enactment but also traveled before the statute became law. This will be the Court’s first consideration of sex offender registration laws since it upheld two state statutes against Ex Post Facto Clause and due process challenges in 2003.

In 2004, petitioner Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender there after his release from custody. When Carr moved to Indiana at the end of 2004, however, he failed to register there – a failure that was discovered in July 2007, when he was arrested for an unrelated incident. After Carr was indicted for failing to register under SORNA, he moved to dismiss the indictment on the ground that his interstate travel pre-dated SORNA and a conviction would thus violate the Ex Post Facto Clause. The motion was denied; Carr entered a conditional guilty plea and appealed the denial.

The Seventh Circuit consolidated the appeal with that of Marcus Dixon, whose offense and travel had also predated SORNA. In his appeal, Dixon made a similar Ex Post Facto argument but also argued that, as a matter of statutory construction, he did not violate SORNA because his travel occurred before the statute was enacted. The Seventh Circuit rejected the Ex Post Facto argument. In its view, such convictions did not violate the Ex Post Facto Clause as long as “at least one of the acts” “required for punishment” takes place after the statute went into effect and the defendant had a “reasonable time” in which to register after the Attorney General issued the regulation. The court of appeals thus affirmed Carr’s conviction, concluding that five months was a “sufficient grace period” in which to register. However, while it also rejected Dixon’s statutory argument, it nonetheless reversed his conviction on the ground that he had not had sufficient time to register.

Carr filed a petition for certiorari, which the Court granted on September 30, 2009. In his opening brief on the merits, Carr argues that SORNA’s use of the present tense “travels” demonstrates that the statute applies only to defendants who engage in current or future travel. Because Section 2250(a)’s other requirements of §2250(a) necessarily refer to post-SORNA activity, the “travels” clause should also be limited to post-SORNA activity. Any ambiguity in the language should be read in his favor, Carr suggests, under the rule of lenity and the presumption against retroactivity.

Carr next argues that SORNA was aimed at interstate travel by unregistered offenders as a harm in itself, which would threaten SORNA’s “uniform system of state registration requirements.” Unlike cases in which Congress has asserted its “full Commerce Clause power” by regulating activities “substantially affecting interstate commerce,” SORNA is limited to offenders who travel “in commerce.” This regulation of the channels of interstate commerce is inherently prospective; Congress cannot “keep these channels free from prior misuse that occurred before enactment of the governing statute.”

Finally, Carr argues that two different interpretations of SORNA both violate the Ex Post Facto Clause. First, even if SORNA merely requires defendants to comply with the Wetterling registration regime, then it impermissibly enhances the penalty for the same crime. Second, if SORNA in fact contemplates a new duty, then Carr was guilty of failing to register at the moment SORNA passed and its retroactive application would thus impose an “impossible duty.” His interpretation, by contrast, is consistent with the canon of constitutional avoidance, while the Seventh Circuit’s construction of the statute as allowing “a reasonable time” amounts to a rewriting of the statute.

In its brief on the merits, the government counters that Section 2250(a) criminalizes a sequence of events: an individual is guilty of failing to register when he first is convicted of a sex offense, then travels, and then knowingly fails to register, even if the travel occurs before SORNA’s enactment. The government argues that this interpretation better effectuates SORNA’s purpose of finding “missing” sex offenders who travel to another state and fail to re-register there. Although Carr suggests that such offenders could still be subject to state prosecution, the government emphasizes that SORNA was enacted precisely because state penalties were inadequate to ensure enforcement of registration requirements.

The government dismisses the canon of constitutional avoidance as inapplicable here. It contends that Congress’s Commerce Clause powers are not implicated by the timing of the travel because the logical connection between a failure to register and interstate travel is unrelated to when the travel occurred. Moreover, there is no “grievous ambiguity” that would justify invoking the rule of lenity.

Finally, the government argues that the law does not operate retroactively for purposes of the Ex Post Facto Clause because the full “course of conduct” criminalized by Section 2250 is not completed until an individual fails to register under SORNA, which necessarily occurs only after the statute’s enactment. The government also distinguishes between offenses under the Wetterling Act and those under SORNA: an individual who cannot register because a state does not have a registry that conforms to the requirements imposed by SORNA may invoke Section 2250(b)’s “uncontrollable circumstances” defense, but he is still liable under SORNA. The government agrees that Congress cannot criminalize conduct in a way that makes it impossible for a defendant to avoid liability, but it describes the allowance of “a reasonable time to comply with a statutory regime” as an uncontroversial “background principle of law.”

Wile this case focuses narrowly on interstate travel with a failure to register, it will be an important case to watch and may give some advance indication of where the Court will weigh-in on other constitutional challenges of SORNA and the Adam Walsh Act.