Ex Post Facto Laws and Sex Offender Registries

Legislatures have long added additional restrictions to sex offender registry laws, but a recent case from the Sixth Circuit may allow ex post facto challenges to a large number of these laws

The Tennessee sex offender registry is the subject of a lawsuit by a man who claims it is unconstitutional because it violates the prohibition against Ex Post Facto laws. An ex post facto law is one that is designed to punish an individual for acts committed at a time prior to the enactment of the law.

The Founders included this provision in the U.S. Constitution, as they recognized the inherent unfairness and potential for tyranny. Ex post facto laws could be used to punish individuals by targeting specific conduct or by increasing punishment long after an original sentence had been rendered.

Regulation, not punishment

In the 1990s, legislatures across the nation, including Tennessee, created sex offender registries. These laws were designed to ostensibly to "protect children." A few, high-profile child abductions and murders had created near-hysteria and much energy was focused on identifying and locating sex offenders.

The sex offender registries were first developed for law enforcement, allowing police easy access to names and addresses of known sex offenders who had been released on parole or who had completed their sentences. But early on, in one of the federal laws, a clause was inserted to allow public dissemination of this information.

With the advent of the internet, the public no longer had to appear in a sheriff's office and look at a physical list but could access the information online. In addition, as legislatures and politicians wanted to demonstrate their "toughness" on crime, they continued to add more and more requirements and restrictions onto these laws.

Supreme Court precedent

In a case from 1999, the U.S. Supreme Court found that a Sex Offender Registration and Notification Act (SORNA) that required individuals to register did not violate ex post facto prohibitions because they were mere regulations, not criminal punishment. This was despite the fact that in many cases, the SORNAs had been made law after the individuals had been tried, convicted and for some, long after they had completed their sentences.

That precedent has prevented any successful challenge to SORNAs on ex post facto grounds until this year. The Court of Appeals for the Sixth Circuit, whose decisions control in Tennessee, recently decided a case involving Michigan's SORNA and found that legislators there had broken the camel's back by placing ever more restrictions into the SORNA. The constant, incremental piling on of additional restrictions had changed it from a regulation to a punishment and made it constitutionally defective.

SORNAs become more than a simple registry

No longer simply a "yellow pages" of sex offenders, the registries in most states now demand that an offender report at least once a year to a sheriff's office and verify their address and phone number, their vehicles and their internet identifiers. Some laws outright prohibit any internet access. Some offenders have to report every 90 days, often in multiple counties if they live, work or go to school in different locations.

Most now also prohibit an offender from living or working within a specific distance of schools and daycare centers. Many also include parks and bus stops and may not just prohibit living within a stated distance, but sometimes simply being within that distance, no matter if they are just passing through an area.

If you draw circles on the maps of cities with all of these prohibited spaces, some cities have no viable spaces where a released offender who has fully completed the terms of his sentence can live or work. This is not an inconsequential matter.

These "civil regulations" come with additional, potential criminal penalties, as failure to meet reporting requirements can lead to an arrest and a return to prison. These laws create a web of oppressive requirements and restrictions that can make it almost impossible for an offender to successfully be reintegrated into society. Some have been driven to suicide by the hopelessness of their situation.

Not just predators

These laws are often drafted as if everyone convicted of any sex crime was a violent "sexual predator." However, the SORNAs often apply to a far broader range of sex-related crimes. In 13 states, public urination can place you on the registry and in 32, exposing your genitals could make you a "sex offender."

Legislatures cannot say no

The problem is politicians who want to win reelection never want to be accused of "voting for sex offenders." So laws, no matter how ridiculous or unlikely to have any real value in protecting children, always win approval. In New York, legislation has been proposed to prohibit offenders from playing Pokemon-Go.

The Tennessee man who is now suing had pled no contest to a charge of attempted aggravated sexual battery involving his daughter before there even was a SORNA in the state. His probation ended in 1999 and he has committed no further crimes, but because of the SORNA, he has been forced to leave his own home because his grandchildren live next door.

Jacob Wetterling

Researchers have found that these laws have had increasingly detrimental effects on those subjected to them and may increase recidivism rates, as offenders are squeezed out of jobs and places to live.

They also fail in their supposed core function; that of protecting children. They are ineffective, as after a quarter century of ever-more severe legislation, the rate of sex crimes has remained relatively unchanged. This really is not surprising, as the number of cases involving child abductions from schools or daycare facilities by strangers is likely zero most years, and if they occur, they are far more likely to involve a parent or relative than a stranger.

One of the abductions that started the movement for SORNAs was that of Jacob Wetterling. The man who abducted and killed Jacob 27 years ago recently confessed and pled guilty to a different crime. Looking at the vast array of laws that have been enacted in those 27 years, what is most telling is that not one of them would have "protected" Jacob, as the man had never been convicted of a sex crime and would not have been on any registry.