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."
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.
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