Friday, August 29, 2014

Weakening the Shield: Maryland Reforming Sex Offender Registry Laws for the Worse?

The sex offender registry has long been a system relied upon by the government to keep track of the residence and activities of sex offenders, including ones who have completed their court-ordered sentences.  It is also a shield designed to protect the public; however, the shield could soon be weakened when at least 1,200 names disappear from the State of Maryland’s registry.

The list of sex offenders on Maryland’s sex offender registry will drastically shrink as a result of the June 2014 Maryland Court of Appeals ruling in Dep’t of Pub. Safety and Corr. Servs. v. Doe (“Doe II”).  The case began in 2006 when John Doe, who is Robert Merle Haines Jr., pled guilty to and was convicted of one count of child sexual abuse.  This conviction was based on the allegation that Doe, a teacher, inappropriately touched a thirteen-year-old student twenty-five years prior during 1983-84.  The sex offender registry law in place during 2006 required Doe to register as a child sex offender; however, at the time of the offense, the sex offender registry did not exist and would not be created until about ten years later in 1995.

Doe came before the Court of Appeals in 2013 in Doe v. Dep’t of Pub. Safety & Corr. Servs. (“Doe I”) and argued that the “highly punitive and restrictive nature” of the retroactive application of Maryland’s sex offender registration law violates both the federal constitutional ban on ex post facto (after the fact) laws and both clauses of Article 17 of Maryland’s Declaration of Rights prohibiting ex post facto laws and restrictions.  The Court of Appeals agreed, holding that the application of a law passed nearly twenty-five years after the commission of the crime is unconstitutional under Article 17 and in violation of an individual’s rights.  Thus, Doe’s name was taken off the registry.  The Court of Appeals did not go into an analysis of the federal law and “specifically excluded any analysis of the federal Sex Offender Registration and Notification Act (SORNA)” because “federal obligations are not before [the court].”

The State re-opened the case in Doe II to argue that Doe should be placed back on the registry and to address the federal issue previously excluded in Doe I.  This time around, the State argued that even though the ex post facto law was unconstitutional under Maryland’s Constitution, federal law still requires sex offenders to keep their names on the registry.  Generally, Congress cannot order states to comply with a federal regulatory law such as SORNA, as it is merely a series of recommendations to states on how to implement a sex offender registry system, but it requires sex offenders to register with the state database.  The Court of Appeals ultimately ruled that individual sex offenders have no independent federal obligation under SORNA to register if it would be contrary to state law, which was already found to be unconstitutional in Maryland when applied ex post facto.

As a result of the Doe II ruling, offenders not only have no obligation to register under federal law, but “notwithstanding any requirements imposed upon sex offenders by SORNA, where we have declared the retroactive application of Maryland’s sex offender registry to be unconstitutional, the State must remove [Doe’s] name from the registry.”  In other words, corrections officials are now legally required to remove the names of all other offenders who also committed their crimes before 1995. 

Many offenders are disappointed with Maryland State laws, which retroactively added hundreds of offenders to the registry and even extended the time some would spend listed.  A Montgomery County man who was convicted in 2003 for a one-time sex-crime involving a minor who turned out to be an undercover officer was supposed to spend ten years on the registry, but the law added five more.  A Washington County man had a similar experience and sued the State, resulting in a victory allowing his name to be pulled off the registry.  Other offenders like him are using the Doe rulings as ammunition and fighting back.  “It’s not okay to retroactively make changes and not understand the impact on individuals,” one offender states, adding that “offenders have served their time and accepted their punishment, only to have it change after the fact.”

What impact does this ruling have on the community? Well, not a good one and their reservations are reasonable.  Rachel Perry, a young woman raped at the age of seventeen, is upset and scared that offenders could come off the registry in bulk.  Perry added that the trauma she and other rape survivors endure sticks with them for a long time, much longer than any prison sentence or time on a registry and says, “[t]he rest of my life I’m a survivor of sexual violence . . . that’s not something that goes away.”  Victim advocates are disappointed, as they see the registry as a useful tool to alert families of potential predators; however, the Maryland Coalition Against Sexual Assault (MCASA) says that only one in sixteen offenders is even prosecuted.  MCASA reminds the public that the registry shouldn’t act as a safety blanket because “[m]ost sex offenders are not on the registry.  What this decision does is it makes it even worse . . .  this is a wake up call.  We can’t rely on the registry,” adds Lisae Jordan, Executive Director of the Coalition.

What impact does this ruling have on practitioners?  It depends.  For prosecutors it may mean more lawsuits if the State does not remove the names from the registry automatically.  Prosecutors may also experience conflict with victims who learn that their attackers slate will not be on the registry anymore.  Defense attorneys will be sought after by registered sex offenders who seek to have their cases reopened and names removed.  Jordan from MCASA says that the ruling means that Maryland will now need to look at other ways to track dangerous offenders.  This Maryland ruling may affect prosecutors and defense attorneys in sister jurisdictions in the same manner.  Offenders in those states who also committed their crimes before their state sex offender registry was created can now use the Doe ruling as persuasive authority to have their names removed from their state registries. 

Right now, there are more than 8,000 names on the registry and the Court of Appeals ruling impacts almost 2,000 of those names.  The Department of Corrections has already started the process of removing names, estimating near 900 names have been removed so far and expecting to reach 1,400 by the end of the year. 

Mahira N. Khan

Staffer, Criminal Law Practitioner

Photo by Brian at Flickr Commons

12 comments:

  1. While a fearsome prospect, the effect of the law is against government, not against private citizens who may choose on a local, state or even national level to take those names to be removed and restore them on private websites, including those of NGOs who, as a public service, could make such names available to the public. Defamation should not be an issue for obvious reason and state invasion of privacy statutes would give weigh to the common defense of the public interest.

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    1. "Defamation should not be an issue for obvious reason and state invasion of privacy statutes would give weigh to the common defense of the public interest. "

      So you are advocating someone publish the names of people who are not required to register as sex offenders on a web site identifying them as such, and it would not be defamation as it serves the "public interest"? You cannot be serious... better get out your wallet.

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  2. This article is rendered pointless in the first paragraph - however intentioned, there is no, zero evidence that the sex offender registry has reduced sexual crimes. While it may have been intended to do so it has not, ever and has morphed into a perpetual and retroactive punishing and shaming mechanism that make any constitution loving American shudder.

    But all you have to do is throw the word "s-e-x" into the mix and rational thought goes out the door. But fret not - the rate this is going soon everyone will have a family member on this list.

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    1. "there is no, zero evidence that the sex offender registry has reduced sexual crimes."

      The registry is not about reducing sexual crimes but more about public awareness and protecting people. People want to and should know if they are living near an ex-offender- that's part of the punishment offenders receive for their crime. I fully agree that no one should be punished after the fact but people should know now that if they commit the crime, their name will be out there on that list to haunt them.

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    2. First of all, the sex offender registry is NOT part of the convict's punishment. It is strictly a civil consequence borne from a certain type of conviction, and as such NOT punishment. The Supreme Court of the United States of America has said so. That is the only reason it was able to be applied retro-actively in the first place. The punishment was handed down by a judge and everyone of these people has finished serving their sentence.

      Second, what is the point of public awareness if not to reduce crime? Shaming? Moral superiority? I think so.

      Third, if it all about public awareness and protecting people, why is there no registry for other criminals? Murderers, drunk drivers, wife beaters, etc. Do people not want to and should they not know about these offenders? I agree people should know about these ex-offenders? Are we not interested in protecting the public (children!) from those criminals? Seriously? Or did you merely forget to type the letter 's'? That would be kind of funny....

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    3. In some states, registration IS part of sentencing and is stated by the judge during sentencing. And when someone is convicted of something so inane as urinating in public, wouldn't you agree that forcing them to register and all that implies is indeed punishment?

      It appears you are advocating multiple registries, so are we to punish every crime for life no matter what the crime and no matter how reformed or rehabilitated the perpetrator has become in the years since their crime?

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    4. @AnonymousAugust 30, 2014 at 12:07 PM - Sorry but wrong. Simply wrong. Sex offender registration is not, is never ever part of the criminal sentence. Not in any of the 50 states. It is, as I stated, a civil, most often, mandatory consequence of a certain conviction. If you pay attention, any good reporter will write "Defendant was sentenced to x time in prison / jail or x time probation and ordered to register as a sex offender". Ordered, not sentenced. Never sentenced to register as a sex offender.

      As such it is not a "punishment". However, everyone, who has lived a week under these rules knows that it is punitive to the extreme. And not only the convict, their family as well.

      Registering people who have served their actual criminal sentence, and subjecting them to these retroactive restrictions, is not worthy of a civilized society, or at least one I do not wish to live in.

      I am most certainly not advocating for registration for all criminals. But I do have to ask the question... why register a guy who had a 16 year old willing girlfriend, for life, and not the crack dealer or wife beater or drunk driver or murderer?

      Why? What is good for the goose is good for the gander.

      AnonymousAugust 29, 2014 at 7:25 PM

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  3. If someone commits a crime, throw the book at them, but justice means not changing the rules every time someone else commits a crime and applying the gestapo tactic of punishing an entire group for the actions of another individual. Upholding this as constitutional scares me more than releasing sex offenders from the duty to live thousands of feet from a school, taking their kids to a park, or making it illegal for them to grow a mustache without taking a day off work to have a new picture taken. Since 95 out of 100 don't reoffend, when we say we have the right to be 'informed', often what we extrapolate from their registry status only makes us more ignorant. The Constitution doesn't give us the right to know anything about someone if it iimposes expost facto requirements on a group through bills of attainder. Sorry, but it's true. And to all those "victims' advocates"who think that this is the only way to help victims: SHAME ON YOU! There's no money for victim counseling or educating kids before the abuse happens, but we can dump millions into this? At some point we will have to be honest about a promiscuous teenage girl who seeks sex with older men is not victimized the same way as a young child who is 'legitimately' raped by an adult or person of trust. But let's call it rape because there's nothing traumatic about a teenager having an abortion. End this nonsense registry and use that money to help victims and to sentence actual predators, pedophiles and rapists to life behind bars...but that makes too much sense to ever get a room full of vote pandering politicians to agree to. Don't live in fear or fall for this fear mongering trap

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    1. Perfectly said! But I often wonder why people like you are not in politics to help make such changes AND if you WERE in politics, would you change your opinion due to pressure from your colleagues that you'll lose votes and not get that pay raise if you make this change?

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