Some Hope for Those Unfairly Forced to Register as a Sex Offender
However, the Sex Offender Registries that have evolved in all states over the last 15 years have included 2 fundamentally unfair and unconstitutional provisions.
1. Retroactive application. The registration requirements have been applied to people who pled guilty before the enactment of the statute. Prior to the sex offender registration laws, many innocent people would take a plea deal to a reduced charge to avoid the risk of losing the case at trial and spending many years in prison. The decision to plead guilty when faced with guaranteed probation vs. the risk of prison for 10 to 20 years or even for life was not a hard decision for some people to make even if they were innocent. Then, 20 or 30 years later, when the state would retroactively force them onto the sex offense registry – something that did not even exist when they took their plea deal – their lives were ruined. Lost jobs, lost marriages, public shame, humiliation, and ruined lives.
2. Lack of Due Process. Treating all sex offenders the same by making individuals who have been convicted of non-violent statutory sex offenses register for life and imposing many or all of the same conditions to their registration that are imposed upon those convicted of violent offenses and child molestation.
Sex Offender Registration laws were initially upheld by the United States Supreme Court in 2003 upon the claim by the states that the sex offender registry regulations were meant to be regulatory and were not meant to be additional punishment. Therefore retroactive application was not prohibited by the United States Constitution which only prohibits retroactive application of punitive laws. However, these laws have grown to become more intrusive and more unfair every year. They started as a non public list of names and address. Today they have grown to where individuals cannot live in most parts of the community, cannot work in most parts of the community, often require the offender to wear monitoring devices, and prevents parents from attending school and sports activities of their children or grand children. Even if their offense was 30 years ago and was not a child.
Finally, The United States Court of Appeals for the Sixth Circuit court has ruled http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pd that enough is enough! The Court ruled that even if current registration laws are not meant to be punitive they are nevertheless punitive in operation and effect because they now regulate and prohibit so much otherwise lawful conduct. Therefore the Court ruled that registry laws as currently designed cannot be retroactively applied to persons convicted of sex offenses prior to the enactment of the statute.
I have made these same arguments in other cases in State and Federal courts as have other lawyers in countless other cases only to be shot down time after time. So why now and why has it taken so long? Certainly the additional restrictions imposed by these laws every year, which have made them more restrictive year after year, has had an effect and we may have finally reached the tipping point where the courts are saying enough. Certainly it took the right judges who actually care about the constitution to hear the case. I also suspect that the current membership of the U.S. Supreme Court played a role in the Sixth circuit decision. The current make up of the U.S. Supreme Court is quite different than it was in 2003. Prior to Justice Kagan and Justice Sotomayor joining the Court, the decision by the Sixth circuit would have likely been reversed. However, with Justices Kagan and Sotomayor joining the Court, I believe the Sixth Circuit felt more confident to rule against the registry believing their decision may be upheld by the U.S. Supreme Court. If the State of Kentucky files to have the Supreme Court hear the case or if another circuit makes a contrary ruling and there is a split of authority between circuits I do believe the U.S. Supreme Court will take up the case – and we will see what happens then.
Who does this decision help? If you are currently facing new charges for a violation of the sex offense registry and your original conviction occurred before the registry statutes were enacted, this new case certainly helps you present a constitutional challenge to your charges and your lawyer can move for dismissal of those new registry offenses. If your conviction occurred prior to the sex offense registry law was enacted and you wish to file a legal challenge or lawsuit alleging that the law forcing you to register is unconstitutional and that you should be released from registration requirements, this new ruling by the Sixth Circuit gives you great ammunition. However, in both of these situations we will probably have to wait to see what the U.S. Supreme Court says until we know anything for sure.