Retroactive sex-offender registry struck down

A man who was convicted of sexual offenses committed before 1995 cannot be ordered to be listed on the state sex offender registry, which went into effect that year, Maryland‘s top court ruled Monday.

Requiring such registration would violate constitutional bans on imposing on convicts a criminal punishment that was not in effect when they committed their crimes, the Court of Appeals ruled in a fractured decision that yielded no majority opinion among the seven judges.

Judge Clayton Greene Jr., writing for a three-judge plurality, said the Maryland Constitution’s prohibition on ex post facto punishments applied to the state’s sex offender registry.

“The prohibition against ex post facto laws is rooted in a basic sense of fairness, namely that a person should have ‘fair warning’ of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive legislation,” Greene wrote. The defendant “could not have had fair warnings of, and should not face, any legally imposed sanctions beyond those provided for at the time of the commission of his crime.”

Two other judges, Sally D. Adkins and Robert N. McDonald, said the compelled registration of pre-1995 sex offenders also violates the federal Constitution’s ex post facto ban.

Judge Glenn T. Harrell Jr., in a separate concurring opinion, said the sex offender registry was not applicable to the case as it was never mentioned in the defendant’s plea agreement with the state.

The court’s decision “will deprive the public of valuable information but also gives the state an opportunity to re-examine the registration laws and evaluate whether we are using resources effectively,” said Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault. “We might be better served investing in sexual assault prevention and education.”

Jordan said the registry “has value [but] it also creates a false sense of security. Most sex offenders are not on the registry because most sex offenders are not convicted.”

She cited 2006 Justice Department statistics showing that only about 19.1 percent of sexual assaults on women were reported to police. Of the reported cases, 37 percent resulted in criminal prosecution and 46.2 percent of those ended with convictions.

Reported decades later

While the Court of Appeals referred to the petitioner as “John Doe,” published reports in an earlier phase of his challenge identified him as Robert Merle Haines, a former Boonsboro Middle School teacher who, in June 2006, pleaded guilty in Washington County Circuit Court to having sexually abused a 13-year-old female student during the 1983-1984 school year.

In September 2005, the former student reported the abuse to police.

Haines was sentenced to 10 years in prison, with all but four and a half years suspended, and three years’ supervised probation. The trial judge also ordered him to register as a sex offender, but that order that was withdrawn in November 2006 amid ex post facto concerns, according to the high court’s opinion.

Partially in response to the case, the General Assembly amended the registry law in 2009 to apply it retroactively to sex offenses committed before Oct. 1, 1995. Haines was then ordered to re-register. In 2010, the General Assembly changed the law again, which had the effect of classifying Haines’ crime as a Tier III sexual offense, requiring him to register every three months for the rest of his life.

Haines challenged the retroactive laws as ex post facto, losing in both the Washington County Circuit Court and the intermediate Court of Special Appeals in November 2011 before Monday’s win in the Court of Appeals.

The lower courts said retroactivity was permissible because registration is not considered punishment. Even on Monday, Greene’s plurality opinion refers to it as a “consequence” of the conviction and a “sanction,” without calling it punishment; he compared it to probation. However, the concurrence by McDonald and Adkins does refer to it as a punishment.

Haines’ attorney, solo practitioner Nancy S. Forster, hailed that recognition.

“Those who refuse to say it’s punitive are really closing their eyes to the obvious,” said Forster, a former head of the Maryland Office of the Public Defender.

People placed on the registry are regarded as pariahs by their neighbors and would-be employers, regardless of the seriousness of their offense or how long ago it occurred, she said.

It is far more punitive than probation, which is generally limited to five years, Forster added.

“You can’t be placed on probation for life,” she said.

Monday’s decision could be appealed to the U.S. Supreme Court, as it ultimately rested not on the plurality opinion but on the two additional votes — McDonald’s and Adkins’ — that the federal Constitution’s ex post facto prohibition applies.

David Paulson, a spokesman for the Office of the Maryland Attorney General, declined to address possible plans for appeal but said the decision is “under review.”

The Supreme Court, in its 2003 Smith v. Doe decision, held that application of Alaska’s sex-offender registry law to a prior offense did not offend the U.S. Constitution’s prohibition on ex post facto laws. The court said the state’s registry was a civil response, not a criminal punishment, and thus the ex post facto bar did not apply.

The Court of Appeals’ sole dissenter, Judge Mary Ellen Barbera, took that view on Monday, saying registration is a regulatory act designed to promote public safety.

Chief Judge Robert M. Bell and Judge John C. Eldridge, a retired jurist sitting by special assignment, joined Greene’s opinion.

WHAT THE COURT HELD

Case:

Doe v. Department of Public Safety & Corrections, CA No. 125, Sept. Term 2011. Reported. Opinion by Greene, J. Concurring Opinions by McDonald, J., and Harrell, J. Dissenting opinion by Barbera, J. Argued Sept. 7, 2012. Filed March 4, 2013.

Issue:

Does the retroactive application of Maryland’s sex offender registration laws violate constitutional bans on ex post facto laws?

Holding:

Yes; retroactive application denies offenders “fair warning of the consequences” of their actions.

Counsel:

Nancy S. Forster for petitioner; Stuart M. Nathan and Cathleen C. Brockmeyer for respondent.

RecordFax # 13-0304-20 (86 pages).