Sex Offender Registration Penalty Changes Cannot Affect Offenders Retroactively

Amendments added to Michigan’s Sex Offender Registration Act that retroactively apply to sex offenders violates their constitutional right against ex post facto punishments

Does v. Snyder, 2016 BL 276689, 6th Cir., No. 15-1536, 8/25/16.

   The Sixth Circuit ruled that Michigan’s Sex Offender Registration Act (SORA) and its new amendments could not retroactively affect offenders in the state because it would violate the Constitution’s Ex Post Facto Clause. The clause prevents the changing of punishment for actions that have already happened, after the fact. While civil and regulatory laws like SORA cannot violate the Ex Post Facto clause on their own, if a plaintiff shows there is a criminal penalty then the clause comes into play. The court found that certain amendments in the past ten years have changed how the state “imposes punishment,” rather than affecting civil penalties, thereby violating the Ex Post Facto Clause.

   The court made sure to distinguish its decision from Alaska’s sex offender registry law, which was upheld by the United States Supreme Court. The circuit court found that SORA went beyond what was decided by the Supreme Court because it regulated where “registrants may live, work, and ‘loiter.’” The restrictions put significant burdens on the registrants, not the “minor and indirect” effects found in the Alaskan registry.

http://www.bloomberglaw.com/public/document/Does_v_Snyder_No_15153623462486_2016_BL_276689_6th_Cir_Aug_25_201.

Lifetime Registration for Sex Offenders Limited to Recidivists

The lifetime sex offender registration requirement that applies to persons convicted of “two or more” sex offenses does not apply to offenders who have multiple charges in their first prosecution

A.S. v. Pa. State Police, 2016 BL 263364, Pa., No. 24 MAP 2014, 8/15/16

Commonwealth v. Lutz-Morrison, 2016 BL 263370, Pa., No. 28 MAP 2015, 8/15/16.

   The Pennsylvania Supreme Court clarified the state’s rule that places a sex offender on a lifetime registry for committing two or more sex offenses, now only requiring sex offenders who have been prosecuted two or more times to be placed on the registry. Before, state police were requiring first-time sex offenders with multiple charges to register with the lifetime sex offender registry in the state.

   The court found that the lifetime registration should be reserved for repeat offenders who have failed to reform themselves, while first-time offenders and those who commit less serious crimes can still have a chance through rehabilitation. The court further held that the structure of the schemes, with the graduated tiers of registration requirements, reveal that the legislature had a “recidivist philosophy” in mind.

http://www.bloomberglaw.com/public/document/AS_v_Pa_State_Police_No_24_MAP_2014_2016_BL_263364_Pa_Aug_15_2016.

http://www.bloomberglaw.com/public/document/Commonwealth_v_LutzMorrison_No_28_MAP_2015_2016_BL_263370_Pa_Aug_.

Registration Deadlines for SORNA Clarified.

The concepts of being required to register, and failing to register, are separate within the Sex Offender Registration and Notification Act.

 

United States v. Gundy, 2015 BL 295714, 2d Cir., No. 13-3679-cr, 9/14/15

    The defendant was in prison when the sex offender federal registration requirements were deemed retroactive. The U.S. Court of Appeals for the Second Circuit held that he violated the law by traveling interstate even though it occurred while he was still in custody and before he had finished serving his sentence. 

    In 2005 the defendant had been convicted of a sex offense in Maryland. This conviction violated the terms of his federal supervised release, so he was transferred to a federal facility in Pennsylvania in 2011, and in 2012, to a halfway house in the Bronx, N.Y. The government indicted him for his failure to register as a sex offender and then traveling interstate. Their argument remarked that the SORNA requirements had been made retroactive in 2008.

    The defendant claimed that he did not have to "initially register" until he had completed the sentence of imprisonment.

    The court found that the defendant conflated the statute's deadlines for registering initially with the section of the statute that establishes mandatory registration conditions. The court stated that the defendant's  argument did not give enough credence to the fact that 18 U.S.C. §2250(a) treats being required to register and failing to register "as separate and distinct elements of the criminal offense."

    The court did not determine whether his travel falls outside of Section 2250 because he remained in federal custody the entire time. They indicated that the district court had not ruled on that point.

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Gundy_No_133679cr_2015_BL_295714_2d_Cir_Sept_14_2