Time To Revisit Ex Post Facto Clause For Sex Offenders

Scores of folks have sent me emails generated by a group called Citizens for Change, America. 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 conviction.

But there is hope, Olson nots. The Supreme Courts of Kentucky, Indiana and Louisiana 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.

Also listed under: Sex Offenders and Justice

Comments: (33)

  • thanks for addressing this
    Thanks for taking time to research and explain the legal issues surrounding ex post facto and registry statutes. Hope to read more here in the future.
    Posted on February 7, 2011 at 2:48 pm by chris
  • Time To Revisit Ex Post Facto Clause for RSO's
    Thank you!!
    Posted on February 7, 2011 at 3:13 pm by Book38
  • Thankyou
    I appreciate you looking into how the sex offender registry may be unconstitutional. If there is anything I can do to help please let me know. May God bless You!
    Posted on February 7, 2011 at 8:29 pm by Kaye
  • Time to Revisit
    Perhaps time to revisit time-honored methods of bringing about change. Time for a Ghonin-led Tahrir Sq. event in the U.S. against "human rights abuses." If it was good enough for MLK, it's good enough for me. The lawyers, judges and politicians all have an interest in maintaining the status quo. Nothing will change, unless...
    Posted on February 8, 2011 at 1:54 am by william doriss
  • Ghonin freed in Egypt
    Ghonim freed:
    Posted on February 8, 2011 at 1:59 am by william doriss
  • Citizens for Change, America
    Louisiana also ruled the ex post facto is unconstitutional in the Jimmy Smith case. I have the pdf. Citizens for Change, America www.cfcamerica.org
    Thank you for returning our letters. Thank you.
    Posted on February 8, 2011 at 3:23 am by Amanda King
  • Ex Post Facto For RSO's
    Thank you, we certainly need your help!!
    Posted on February 8, 2011 at 4:29 am by George
  • Time To Revisit Ex Post Facto Clause For RSO's
    We've spoken before and all I can say is Thanks!! You give encouragement to those of us fighting these laws.
    Posted on February 8, 2011 at 4:35 am by Sue
  • retro active laws and my life
    My crime was 26 years ago. I never went to prison. I have just lost my second house because of these laws. The list of punishments goes on and on. 26 years and no other sex related crimes before or after 1985. I was 20 then. Please contact me. I have been fighting along with everyone else for many years.
    Posted on February 8, 2011 at 4:36 am by Charles McGonagle
  • Citizens for Change
    Thanks very much for your concern and hard work.
    Posted on February 8, 2011 at 4:57 am by M. Fisher
  • Fl.Registration laws
    I have now lived 14 years under this ex post facto law in Fl. It started as a once registration with Sheriff to this 4 times a year public registration. It's pure hell for me and I just wish I could die each time I have to go and do it again.
    Posted on February 8, 2011 at 5:27 am by david baker
  • Dunham
    Thank you for your intrest in this topic . My son in law is facing theese horriffic laws and we as a family certainly being penilised . Any help you can be will be appreciated
    Posted on February 8, 2011 at 6:56 am by Lois
  • Citizens For Change Oklahoma
    Thank You, Thank You, Thank You.
    Posted on February 8, 2011 at 9:56 am by Webmaster
  • A road map.
    I seem to recall that the Smith vs Doe decision included a "road map". That is the courts said it wasn't ex post facto because it didn't cross lines x y and z. Since, then, hasn't the registry (and its attendent laws) blatantly crossed all those lines? Any traction to be gained there?
    Posted on February 8, 2011 at 10:09 am by Lee J
  • ex post facto
    since all these responses are here, any suggestions we could get together and fight this? are you able to take us all the way? i am sure there are enough voices now and enough back up to change this. to many lifes are destroyed, these ARE retroactive, some thing needs to be done on a wider level. thanks for doing all you do!
    It is a matter of having a client willing to come forward and then finding the funds necessary to support the effort.
    Posted on February 8, 2011 at 10:40 am by renate
  • thank you
    thank you for your interest in these laws they are a scarlet letter on all of use who have to bear them i hope that it will change not everyone on this list is a dangerous or bad person i comited my offense when i was 17 and it has gotten worse for me and my family ever since again thank you and please let me know how i can help
    Posted on February 8, 2011 at 12:53 pm by casey
    THANK YOU!!! If you feel the need to review cases for context, you can have mine any time. I hope more from the legal black hole that is Florida get onboard with you. Anything I can possibly do to help just let me know.
    Posted on February 8, 2011 at 1:50 pm by Screwed in Florida
  • Retroactive Registration
    I think we should join together and fight this. You have our support!
    Thank you so much
    Posted on February 8, 2011 at 3:48 pm by Rob Smith
  • Civil rather than Criminal
    Thank you for this and all of your related posts. Very informative.
    I don't understand how this can be justified as civil rather than criminal. It's on 'crowd sourcing' of punishment by the masses.
    Posted on February 8, 2011 at 4:12 pm by Steve - RSOonline.org
  • class action civil suit?
    I am wondering why a massive class action civil suit has not been tried as far as i know. Mental torture, mental punishment, post traumatic stress disorder, depression, vigilantism, etc. A lot of us have the time, money, and willingness to fight this but we need an attorney, firm, or organization to pull all available resources together to fight this from every conceivable angle. Who is our Martin Luther King? Because we are the new slaves and the new war.
    Posted on February 8, 2011 at 6:20 pm by bobby
  • Thank You
    Finally someone who can see this is additional punishment. Wrong for our families and just plain wrong
    Posted on February 9, 2011 at 2:33 am by Patricia
  • Ex Posto Facto
    Thank you for joining the cause, the law is unfair to those having to register for a previous crime but what about those folks that are registering now how do we protect them have they not paid their debt to society and then some? for a non-violent crime?
    Posted on February 9, 2011 at 5:17 am by dee
  • alaska supreme court ruling
    After the federal Smith vs Does loss One of the Does attacked registration in state court. It took 6 years but in 2008 the alaska supreme court ruled all offenders on the list for offenses prior to 1994 had to be removed because the laws as they had evolved were so punitive in effect that the did violate the Ex-post facto clause under the Alaska Constitution. See alaska's sex offender registry web page and scroll down to 2008 notes.
    Posted on February 9, 2011 at 9:40 am by hrwog
  • Thank You!!
    Thank you for helping to give this situation bigger voice. Together then maybe we will be noticed and heard.
    Posted on February 28, 2011 at 5:42 pm by Marie
  • Class Action Lawsuit for Ex Post Facto Clause
    I can tell you that my husband and I have been looking for some where or someone to start this process. He was majorly affected by the ex post facto laws and it seems like such a no brainer with his case but class action is the way to go because if an individual stands up there wanting to change something for themselves all the courts see when they look at that person is the flood gates opening but if we all stand together the can't ignore us all!!!
    Posted on March 18, 2011 at 8:16 pm by court made example
  • I Just want to live
    i recently moved from Ohio to Oklahoma. I am only required to register once a year for ten years. Oklahoma is now telling me that I have to register every 90 days for the rest of my life. How is this possible? The laws that do not apply to me in Ohio is now being forced upon me in Oklahoma. Is there anyone i can turn to for assistance?
    Posted on April 10, 2011 at 7:54 pm by D.Bridge
  • Not Guilty on Possession
    The US Supreme Court of Appeals clearly states that possession of Child porn is not illegla here is why!
    FILED: January 6, 2011
    Hope this will stir some Defense lawyers into Looking into this further.
    Posted on November 6, 2011 at 9:16 am by Liberty
  • thank you...........
    You have givin me a little hopeas i have just lost my good job because of this added on punishment.
    Posted on November 29, 2011 at 3:31 pm by j.m
  • sex offender laws
    i served over 14 years of my life for a sex crime guilty or not to me is not the issue the issue for me is that i did my time why then am still being puinnish when i have paid my dept and otheres have paid there dept to the country i have been out since 2005 these laws are wrong for those that are trying to live life free and freedom is what america stands for i believe, but you no longer to me deserve the gifts of this country if you do the same crime twice you should never get out of prison. thank you
    Posted on January 19, 2012 at 9:41 pm by thomas fluke
  • Class action
    I plead and found guilty in 1988, served 3 years in TDC. RELEASED IN 92, finished my parole in 98 with no violations. Was told I was done and Good luck. In 2008, was arrested for failure to register. Was facing 20 years plead guilty sentence 2 years. Released in 2011. I have to register 4 times a year for life. How is this not Post Ex Facto? I wish there was some type of class action here in Texas. I would put my name in please help...
    Posted on May 7, 2019 at 1:12 am by Jack
  • Sex offender registration
    I've registered for 21 years supposed to be for 10 now my family and I are being forced into homelessness and hopelessnesswith new I acted city ordinances of 2500 foot buffer zones no where to live where I can have public transportation or nearby jobs their 1 offender yet must register2 times a year instead of 1 time a year help HELP.FAMILY OF 5
    Posted on June 5, 2019 at 4:15 pm by Todd Bigel
  • Our Law Suits are Coming!!!
    Thank you for standing up for those being constitutionally violated every day in this country.
    Posted on June 24, 2019 at 8:02 am by Fight for Freedom!
  • Sex Offender
    My story is like many others. For 17 years I was a free citizen of the USA. In 2008 I was told I must register or go to jail. I explained that my conviction and time served was years before any registry was formed. I was still subjected to register because of the Ex Post Facto law. This violated my constitutional right as a citizen. So add me to your law suit. I promise 100% I can change this action and win in the courts.
    Posted on January 22, 2020 at 11:24 pm by James K Martin

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