Oklahoma Supreme Court: Retroactive Application of SORA’s Registration Requirements is Unconstitutional

In a landmark decision made by the Oklahoma Supreme Court on June 25, 2013, retroactive application of SORA's (sex offenders registration act) registration requirements has been deemed unconstitutional because it violates the ex post facto clause of the Oklahoma Constitution.

Case Background

On October 12, 1998, Defendant pled nolo contendere to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas, and received a deferred adjudication. That same year he moved to Oklahoma, and was therefore required to register as a sex offender under Oklahoma's SORA provisions for a period of 10 years. Prior to when Defendant's ten-year registration period was set to expire, the Department (Department of Corrections) assigned him a level 3 life-time registration classification which meant that he would be required to register for life. Defendant filed a petition in August 2009 pursuant to 57 O.S. Supp. 2008, § 582.5 (D) of SORA to have a court override his level assignment, and then filed his Plaintiff's Motion For Summary Judgment on December 10, 2010.

In addition to asserting that Defendant was required to register for life pursuant to the 2007 tiered risk level assessment amendment, the Department also opined that Defendant was subject to the 2004 amendment which changed the start time of the registration period from "the date of registration" to "the date of the completion of the sentence". Therefore, because Defendant was required to complete 10 years of community supervision, "this amendment, if applied retroactively, essentially doubled his registration period" to 20 years.

2011 Trial Court Decision

On May 10, 2011 the trial court granted summary judgment in favor of Defendant. The court opined that the legislative intent was not for SORA to be applied retroactively, and therefore Defendant was only required to register in Oklahoma for 10 years. The Department of Corrections appealed the trial court's decision to the Oklahoma Supreme Court. *Notably the trial court found that the registration period began when Defendant received his deferred sentence, but the Supreme Court would later disagree, stating that the registration period began when Defendant entered Oklahoma. However, because the there were no amendments made during 1998, the 10 year period was affirmed.

2013 Supreme Court Analysis and Decision

The Oklahoma Supreme Court delivered its opinion on June 25, 2013. In regard to the level assignment system created in 2007, the court was to decide whether or not it was intended to be applied retroactively. "If we find it was intended to be applied retroactively, then we must determine whether its retroactive application violates the ex post facto clause." The high court agreed with the trial court, and ruled that the level assignment system was not to be retroactively applied based upon legislative intent. The court stated that the continual amendments to SORA have increased the duties and obligations of a sex offender, and resultantly are substantive amendments. The court then cited from Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, 257 P.3d 416 and State of Oklahoma v. Timothy Lynn Smith, S-2009-944, filed October 28, 2010: "'clear expression' from the legislature is necessary before a substantive change may be made retroactive." Additionally, the court ruled that the Department of Corrections had applied the level assignments retroactively, and this application violates the ex post facto clause of the Oklahoma Constitution.

The next issue to decide was whether the 2004 amendments regarding the starting point of the registration period was intended to be applied retroactively, and if so, whether its retroactive application violates the ex post facto clause. Based upon the language of the amendment, the court found that the amendment was intended to apply retroactively. In applying its analysis in regard to ex post facto, the Supreme Court relied upon Smith v. Doe 2003 which was derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963). In Smith, the court ruled that a law can only be declared unconstitutional based upon the ex post facto clause IF the law is punitive, and not civil in nature. Using this analysis, the Oklahoma Supreme Court had to first answer two general questions: 1) was the legislative intent of SORA and/or its amendments intended to be punitive, and 2) if not, whether the scheme is so punitive either in purpose or effect as to negate its civil intent.

The court stated: "Although there is evidence pointing to a civil intent, there is considerable evidence of a punitive effect. Even if we assume the act as amended was intended to be a civil regulatory scheme that fact does not dispose of the issue. The second part of the test, whether SORA's effects are punitive, is dispositive."

Mendoza-Martinez Factors

To determine whether the registration scheme was punitive, the court utilized the Mendoza-Martinez factors that were used in Smith v. Doe (2003):

  1. "whether the sanction involves an affirmative disability or restraint";
  2.  "whether it has historically been regarded as a punishment";
  3. "whether it comes into play only on a finding of scienter";
  4. "whether its operation will promote the traditional aims of punishment—retribution [48] and deterrence";
  5.  "whether the behavior to which it applies is already a crime";
  6. "whether an alternative purpose to which it may rationally be connected is assignable for it"; and
  7.  "whether it appears excessive in relation to the alternative purpose assigned

Oklahoma Constitution versus U.S. Constitution

Prior to revealing its analysis, the court made it clear that the analysis was based upon the Oklahoma Constitution, which can provide a greater degree of protection than the United States Constitution:

"The people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it is the final authority. This is so even if the state constitutional provision is similar to the federal constitution. The United States Constitution provides a floor of constitutional rights – state constitutions provide the ceiling."

Alaska Requirements versus Oklahoma Requirements

Even though the outcome of Smith v Doe was that Alaska's sex offender registration requirements did not violate the United States Constitution, the high court analyzed Oklahoma's requirements which are substantially different. In its analysis, the court discussed requirements and issues such as:

  1.  "in person" registration and verification requirements, where failure to comply is a felony subject to 5 years imprisonment and a fine not to exceed $5,000
  2.  residency restrictions – "An offender may not reside, either temporarily or permanently, within a two-thousand-foot radius of any public or private school, educational institution, property or campsite whose primary purpose is working with children, a playground or park operated or supported in whole or part by public funds, or a licensed child care center. If a person owns a home within a prohibited area and becomes subject to SORA registration, they must vacate the property."
  3.  heightened driver's license renewal requirements – "A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years. Therefore registrants are required to pay four times the amount of a non-registrant."
  4. public dissemination of personal data – "Some courts have found such aggressive public notification of sex offender crimes 'exposes sex offenders to profound humiliation and community-wide ostracism.'"
  5. offenders to have the words "Sex Offender" placed on his or her driver's license
  6. "SORA determines who must register based solely on the criminal statute a person is convicted of violating and not any individual determination of the risk the person poses to the community."

IN CONCLUSION, the court determined that the sex offender registration scheme of Oklahoma's SORA was punitive, and therefore its retroactive application is unconstitutional under Oklahoma law.

"We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution. We also find the Department's retroactive application of the level [80] assignment provisions of 57 O.S. Supp. 2007, §§ 582.1 – 582.5, as amended, violates the ex post facto clause."

Congratulations to Attorney John M. Dunn, counsel of record, for your tremendous battle and ultimate success in this case!

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you have been charged with a sex crime and are seeking legal counsel, however, please contact our law office or visit our main website to read about how our lawyers can help you.

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