SORNA Retroactivity Found Unconstitutional

Filed under: Criminal Law, Sex Crimes by Contributor @ March 21, 2013

The Court of Appeals of Maryland has decided that the retroactivity of Maryland’s sex offender registration and notification law violates both the federal constitution’s and Maryland constitution’s bans on ex post facto laws. An ex post facto law is one that creates penalties for an act that was performed in the past (when the act was legal), or creates additional penalties for an illegal act that was performed some time in the past, when the penalties were not as severe.

In the case at hand, John Doe v. Department of Public Safety and Correctional Services, a Maryland man committed a sex offense against a 13-year-old girl between 1983-1984. He was charged in 2005, plead guilty in 2006, and was incarcerated. There was no sex offender registration stipulation in his plea agreement. In 2008, however, he was released from prison and ordered to register as a sex offender.

At the time of his charging and plea agreement, Maryland’s 1995 sex offender registration statute did not require the man to register. In 2006, however, the Sex Offender Registration and Notification Act (SORNA) was passed. SORNA is a federal act that establishes a “comprehensive set of minimum standards for sex offender registration and notification in the United States.” In order to comply with SORNA, Maryland amended its 1995 statute in 2009 and 2010 to require registration and notification for offenders that committed their offense before October 1, 1995, but were convicted after that date. As such, the man was required to register as a sex offender, even though he was not required to when he entered his plea agreement.

The man appealed this additional punishment, and the Court of Appeals of Maryland agreed that the statute, as amended, violates the ban on ex post facto laws. In his opinion, The Honorable Clayton Greene, Jr. reasoned that the retroactive registration requirement “is tantamount to the historical punishment of shaming.”

Pennsylvania’s current sex offender registration law requires retroactive registration for individuals convicted of a sex offense in the past who were serving a sentence, including probation, for a “sexually violent offense” as of December 20, 2012. The problem with this is that someone with a legitimate defense could have taken a plea bargain just to avoid registration – and then subsequently be forced to register anyhow. Pennsylvania courts have not ruled on the constitutionality of this. If you have been charged with a sex offense, contact an attorney at Fairlie & Lippy today.

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