Maryland: Retroactive Sex Offender Registration Law Unconstitutional (2013)

A terrific, and far-reaching ruling was made today (March 04, 2013) by the Maryland Court of Appeals in the case of John Doe v. Department of Public Safety & Corrections: requiring an individual to register as a sex offender retroactively "as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights."

Pre- Court of Appeals Synopsis

On June 19, 2006 the petitioner plead guilty to and was convicted of child sexual abuse under Maryland law (Section 35A(a)(4)(i)). Sex offender registration was not mentioned during the plea agreement; however, the judge imposed this as a condition of his probation. Petitioner challenged this as an illegal sentence based upon various legal grounds. The Circuit Court agreed, and ordered that the he shall not be required to register.

In 2009, Maryland passed new sex offender laws based upon SORNA, that required Petitioner to register as a sex offender. He appealed, but was denied relief by the Circuit Court for Washington County and then by the Court of Special Appeals. Petitioner appealed to Maryland's highest court, the Maryland Court of Appeals.

Oral Argument – Maryland Court of Appeals (09/07/2012)

Court of Appeals Analysis and Opinion (03/04/2013)

Upon being denied relief by the lower courts, Petitioner appealed to the Maryland Court of Appeals, who considered the following question:

"Given the highly punitive and restrictive nature of Maryland’s newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions?"
 

In its analysis, the court departed from the United States Supreme Court's interpretation of ex post facto prohibition under Smith v. Doe (2003). In the latter case, the U.S. Supreme Court utilized a two-pronged test to determine if a provision constituted retroactive punishment forbidden by the Ex Post Facto Clause: 1) whether the legislature's intent in enacting the provision at issue was punitive, and if not 2) whether there is “the clearest proof" that the provision is "so punitive either in purpose or effect as to negate the intention to deem it civil.”

The Maryland Court of Appeal departed from this analysis, and reaffirmed their holding in Frost, that the “two critical elements” that “must be present” for a criminal or penal law to be an unconstitutional ex post facto law is that the law is retroactively applied to an offender, and that it disadvantages the offender.

As to the disadvantage standard, the Court stated" Article 17 prohibits the retroactive application of laws that have the effect on an offender that is the equivalent of imposing a new criminal sanction or punishment." The Court opined that requiring Appellant to register as a sex offender retroactively is the equivalent of imposing a new criminal sanction. In reaching this decision, the Court reasoned:

1) Requiring Petitioner to register has essentially the same effect on his life as placing him on probation:

"When the State imposed registration upon him in 2009, however, it had an effect that was the equivalent of placing Petitioner on probation for life as a result of his sex offense . Thus, although the statute may be labeled “civil” or “regulatory,” it effectively imposes upon Petitioner an additional criminal sanction for a crime committed in the 1980s."

2) Petitioner must disclose a significant amount of personal information:

"The result is that the dissemination of information about registrants, like Petitioner, is the equivalent of shaming them, and is, therefore, punitive for ex post facto purposes."

"…may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment"

3) If Petitioner fails to comply with these conditions, he faces terms of imprisonment:

"This is the same circumstance a person faces when on probation or parole; as the result of a criminal conviction, he or she must report to the State and must abide by conditions and restrictions not imposed upon the ordinary citizen, or face incarceration."

Conclusion

In conclusion, the Court stated:

"Therefore, we conclude that the imposition of the registration requirement upon Petitioner, as the result of amendments passed 25 years after Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights."

This case is a tremendous victory for all of those who were unfairly required to register retroactively when Maryland changed its laws in accordance with SORNA in 2009 and 2010. Undoubtedly the decision in this case will positively affect numerous other individuals in Maryland, and allow them to move on with their lives. It's relieving to hear an opinion that is not dis-attached from reality, and we commend the Maryland Court of Appeals for their judicial prudence, as well as Attorney Nancy S. Forster and Attorney Pat Cresta-Savage for their relentless pursuit of justice.

It's important to note, however, that the Court did not address whether Appellant would be required to register pursuant to SORNA under federal law. The State argued that the federal Sex
Offender Registration and Notification Act (SORNA) imposes an “independent obligation to register as a Tier III sex offender". This situation is generally similar to laws regarding marijuana use in Colorado: the State laws deem it legal, but federal laws deem it illegal. A fair assumption based upon other states that have declared SORNA to be unconstitutional, however, would be that this will not be an issue.

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. However, we have been made aware that the following two Maryland law offices are handling such cases: the Law Office of Nancy S. Forster in Towson, Maryland, and/or the Law Offices of Pat Cresta-Savage in Bowie, Maryland.

 

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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15 Responses to Maryland: Retroactive Sex Offender Registration Law Unconstitutional (2013)

  1. S M says:

    That is great news about the Maryland ruling of the retro sex offender registration law being unconstitutional!  Oh my!  That is Good! 

    I believe that some people are starting to realize how the offenders rights are really being violated, that they are PEOPLE too, and just how unjust these laws are.  I know there is still a ways to go, but this news is a good sign!

    Thanks for caring and sharing!

  2. Paid My Debt To Society says:

    So Ohio and Maryland have now found the retroactive portions of this new law unconstitutional and I believe New Jersey finds a majority of the new act unconstitutional as well, Pennsylvania listen to our surrounding states and do what is right.

    7/6/12
    Circuit Judge Jerry E. Smith wrote the majority opinion, which observes that "After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution." The majority opinion also includes a very interesting evaluation and rejection of the federal government's Commerce Clause justification for the particular registration requirement at issue.

  3. faeryedark says:

    Indeed PA needs to listen, as I know there's people gearing up for their own challenge to PA's enanctment of AWA and adding people to the registry or causing them to ahve to register for longer than their original sentence required. I know that my hubby would not have taken a plea to soemthing he didn't do, if he would have had to register for life initially. i wonder how many others are out there?

  4. Treatment Provider says:

    As a treatment provider I find this wonderful news. The punitive laws make good treatment more difficult and there is no EVIDENCE that registration reduces recidivism at all. It is a placebo for the masses. Well funded treatemnt programs are a better use of resources.

    Persons on the registry are assaulted and humiliated. It functions in much the same manner as the the scarlet letter.

    Hurray!!

  5. Happy4TheChange says:

    My husband and I are so excited to have found this information. It was not widely reported in the media and I'm not surprised. We had a plea deal which a lawyer said he could later have overturned but it turned out that his strategy was not a viable option for his case. He filed the petition after the sentencing but he failed to tell us it was rejected. We had to go to the court and pull this information ourselves a year later. It caused us to delay having children as my goal was for my first child to start school by the time the ten year registration ended. Well, when Maryland passed the changes in 2009/2010, it became a nightmare. We even had to move from a NEW HOME ten years ago because the county we moved to a year after his case was resolved told us that we were not allowed to live within a certain distance of an elementary school. A school not visible from our home! This was the this craziest thing as we were both fully employed and were never home during school hours. We were forced to sell our home only five months after moving in so that my husband would not face unnecessary consequences. We probably could have faught it but we were so stressed over it all that we had no fight in us after the initial battle. I have a wonderful husband and three beautiful children.  I look forward to the day, hopefully very soon, we can truly be a family without this albatross. Thank you for posting this information.

  6. John Lowe says:

    Sadly it appears the the Maryland Department of Corrections and Public Safety is not applying this decision boadly.  That is the MDCPS is requiring offenders to petition the department in a form and asking them to cite their specific leagal standing to the new Court of Appeals decision.  Instead of acknowledging that everyone registered but not part of their plea or registered ex post facto may not gain relief under this ruling.  I do hope this is brought to the attention of the court.  On the face of it this very narrow application of the law appears to be political rather than a reasonable and appropriate response to the judgement of the Court of Appeals.  Disappointing.  MDCPS appears to have become judge and jury on this one.

  7. Another Win says:

    Its good to see Judges making real Constitutional rulings on laws that were created to serperate citizens, and take away their Civil Liberties. Maybe someday We can be truely free of any form of Discrimination, Liberty infringment, and type of Witch Hunt behavior.

    I believe that Sex Offender Laws create a second class Citizen, and is Discriminatory in nature.. They place Sex Offenders into a form of second class citizen, that do not have the same rights or as any other free Citizen by taking away their Civil Liberties. "Scarlet letter witch hunt"!!

    Civil laws, they are in Civil legal books. Criminal laws they are in Criminal legal books. Why are Sex offender laws are in Criminal Law books, and carry a criminal punishment if Civil in nature? Think this goes to show legislators intent here.. Its obviously punitive in nature, and cloaked in sheeps clothing under color of State Laws.

    When a person is convicted of any crime, they are sentenced by that court accordingly, and given their punishment according to factors. When, and if released they are once again equal free Citizens as like any other free Citizen who has no conviction. Why do Polititions feel the need to go out beyond Court sentencing proceedures by making new laws. Do they feel as if they have a blank check to go beyond due process? Do they not have faith in Our current Courts in handing out poportionate sentencing?

    The current Sex Offender  scheme is nothing more then a Witch Hunt.. You would think American Legal system has learnt something from Racism, Womans Liberties, Equal Rights, Gay Rights, German Jews, and The Salem Witch Trials long time ago. People who were treated differently, and made into a second class of Citizen.

    Regardless of conviction or its nature..  A Sex Offender becomes a second class Citizen, and automatically treated as one when it comes to housing, employment, education, and just living everyday life when Laws like these are implemented…..

    To be a "LABELED" as a Sex Offender today. Is to wear the Scarlet Letter "A" !!!

  8. brad schultzen says:

    i have first hand experience with the registry and the damage it does to families. I was convicted at 22 years old for an offence that occured when i was 15 years old. they charged me as an adult because of my current age. i went to prison for 10 years and lost everything including my wife and family. When i got out i was required to register for 10 years once a year and in 2009 the law changed to every 3 months for the rest of my life. Why are juveniles on the registry for the rest of there life, the rest of your life is finished and you dont get another chance. I worked hard and went to school for a jurneymans license in the mechanical trades. i made very good money for the last 8 years until laws further punished me. I lost three jobs straight and now work on my own.I am currently going through another divorce and have a 7 year old boy which makes it difficult to goto school activities as well as other activities. Once again im losing it all when iis it ever enough… 

  9. D. RC says:

    Congrats to all this decision helps out in an already struggle to survive as well as deal with everything in your life!  I am a sex offender, internet crime, down loaded some movies with underage minors.  It was very interesting to hear the arguments presented and how the restrictions put onto the sex offender after the punitive punishment has been done concerning the sentencing is considered punitive as well.

    I know it is concerning the post facto laws in retrospect and only that but essentially everything the sex registration does or requires one to do is punishment.  It violates constitutional rights and violates privacy rights as well and puts the registrant at a great disadvantage if not just a dead end in progressing ones self in life.

    The registry was originally meant for violent offenders and stems from megans law?  Or maybe I am wrong but that guy who does the t.v. show who had his daughter or maybe his son I don't remember but terrible things were done to his son or daughter.  He is the one who got the sex registration thing going intended on violent offenders.  But now you can get caught urinating in a public place even though your being as descrete as possible about it and bam your a sex offender.

    Its very frustrating, I just wanted to say to everyone who is dealing with this useless crap which only makes the public think something is being done to protect them which the registry does not do, hang in there!!! There obviously are some judges who make decisions according to the constitution and not by their religious views or public opinion or pressure by outside sources. 

    Thank heavens for impartial judges.  We need more of them instead of do what you think will win you more popularity or keep you on the bench longer.  If there were more judges who went by what the constitution says or used to say there would be a much more just justice system without a doubt there would be.  

    The sex registry does nothing but punish offenders more after they have served their time and paid back society for the crime they committed at the time.  Everything after that is purely unconstitutional.

    • Jim says:

      The original Megan's Law was from NJ. Megan's mother who pushed for the law to go through has stated that the law was meant to stop VIOLENT offenders. from what i've read even she is upset at how the law has taken shape over time. its unfortunate that lawmakers have taken this good law and turned it upside down. the guy on tv.. John Walsh had his own adjenda after his son Adam was killed by a sex offender so he pushed through the Adam Walsh Act which has basically taken Megan's Law and thrown it out the window. However, some states are smart enough not to adopt the walsh act like nj. NJ just recently tweaked the law a little bit but did not touch any of the registration requirements or adjust anything retroactive. from what i read all they did was extend jail time for some of the most violent offenses and individuals are now required to pay for their counceling instead of the state. those changes make sense and they are only for offenders who commit crimes after the law is signed. none of this retroactive stuff. in my opinion every state should be equal in regards to registration requirements. and all states should recognize your length of registration regardless of moving from one state to another. if you are given a period of 10 years, then regardless what state you live in that should be what you have to do. people should not be worried about moving from state to state if they wish. your time registering should be listed with the state and federal systems and regardless where you live, when your time is up its up.  if someone is on probation in one state for 5 years and moves to another state with permission, then that state can not place its probation requirement upon you. if you moved and have 2 years left, then thats it. its amazing how one offense in one state is a 10 yr requirement while the same offense in another state is lifetime. when i moved to PA it was before the new law took effect. In accordance with the states laws, my offense wasnt registerable. now i could have just not done anything, but i as a responsible person registered anyway because i did not want a gap showing up somewhere when i go to a judge to be released from my registration.

       

      As i have said many times in the past, i have no problem with updating the laws. they should be as the times change and everything, but DO NOT apply the changes retroactively. Say for instance maybe 10 years from now.. updates to the laws are enacted and they are retroactively applied. someone who has been off the registry for 8 years now gets a letter saying oh sorry you need to re-register because laws have changed and you are now deemed a risk. that certainly will not fly with anyone. this whole sex offender registry and all that has gotten way too out of hand in this country and across the board reform is needed.

  10. Steve says:

    I have recently been released from prison for a four year sentence in Maryland for one felony count of Sex Abuse of a Minor. I was a High School teacher and the "victim" was a senior at the school and was sixteen years of age at the time. I was convicted of the felony count, instead of a misdemeanor, because on one occasion the sex act took place on school grounds. The "victim" was a willing participant and the act, and the crime was reported by a third party over two years later.

    While I am willing to accept the consequences of my action, as someone classified in the most devious tier classification, the lack of fairness to any sex offender, including the registration process, is designed to permanently disable a person from ever overcoming their events. This is not to mention the so called treatment (daily call ins, gps, polygraph, psych eval) an offender must deal with that is painful and detrimental for a person to ever move forward.

    Does anyone know what happens to my registration process if I ever move to a state where my action is NOT against the law, i.e. where the consent age of 16 does not have any clauses like MD and many others?

     

    • Kevin says:

      In most, if not all, states their registry statute includes a clause stating that if you are required to register in your previous state of residence then you are required to register in your new state of residence as well. Depending on the state, your tier level assignment may be up to an registry administrator or panel of "experts" and not assigned by a judge. In all likelihood, if you are a lifetime registrant in Maryland you will continue to be labeled as a lifetime registrant (tier III) wherever you go. I'm sorry it can't offer better news, but that's just the way things are. 

    • jon says:

      Kevin is right. i met someone convicted of corruption of minors from texas. At the time COM was not a registration issue in PA, however because it was a requirement to register in texas for life, PA held up there life status and he had to register.

      It makes me wonder how a state can mandate registration and another state will hold it up but if your state does not require registration and you move to another you might be subject to their registration requirements.

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