Maryland’s attorney general is urging the U.S. Supreme Court to review and overturn the state high court’s decision that being placed on the sex offender registry is “punishment” that a judge must order and not a mere listing of offenders that an agency compiles to alert the public to potential sexual predators.
In papers recently filed with the justices, Brian E. Frosh said the Maryland Court of Appeals’ erroneous ruling struck down a state agency’s valid determination that a convicted human trafficker must register because his victim was a child.
Because registration is administrative and not punitive, the agency’s ordered registration was constitutionally permissible, Frosh added in the state’s request for Supreme Court review.
In its controversial 4-3 decision, the Court of Appeals said Jimmie Rogers’ plea of guilty to being a sex offender did not mention his victim was a minor, a necessary element for the “punishment” of being ordered to register.
The head of the Maryland Sex Offender Registry, an executive branch agency, thus usurped an authority left to juries and judges by concluding the victim was a child and punishing Rogers by requiring him to register, the court held in its ruling last March.
The court cited the public’s widespread access to the internet in deciding that registration is a form of punishment.
“The Internet has increased dissemination of the personal information of sex offenders, and anyone, at any time and for any reason, can look up a current listing of a registrant,” Judge Shirley M. Watts wrote for the majority. “Public availability and dissemination of sex offender registration expose sex offenders to ostracism, and may cause lost employment opportunities, housing discrimination, threats, and violence. In sum, we conclude that this factor – whether sex offender registration in Maryland involves an affirmative disability or restraint – weighs heavily in favor of registration having a punitive effect.”
Frosh, in Maryland’s petition for the justices’ review, cited the Supreme Court’s 2003 decision in Smith v. Doe that sex offender registries are “nonpunitive” and part of a “civil regulatory scheme” to protect the public. Rogers is a convicted sex offender whose agency-ordered listing on the registry administratively followed from that conviction, Frosh added.
“If unreviewed, the decision below (by the Court of Appeals) imperils Maryland’s ability to monitor the presence of sex offenders in the community, because it contemplates the removal from the registry of numerous offenders, like Mr. Rogers, for whom the trier of fact never made the determination of the age of the victim because it was not an element of the registrant’s offense,” Frosh wrote.
“(U)nder the Maryland court’s view, a requirement to register is now part of the conviction itself,” Frosh added. “As a result, many offenders who are on the registry as the result of pleading guilty to a registerable offense will seek to invalidate their guilty pleas on the ground that at the time of their conviction they were not informed of the registration consequences of their pleas.”
Rogers has until Dec. 1 to respond to the attorney general’s request for Supreme Court review. Rogers is represented by attorney Michael B. Kimberly, of McDermott Will & Emery in Washington.
Assistant Maryland Attorney General Michael O. Doyle is the state’s counsel of record in the Supreme Court petition.
The justices have not stated when they will vote on the state’s request for their review. The case is docketed at the high court as Maryland et al. v. Jimmie Rogers, No. 20-272.
Maryland State Police arrested Rogers after a search for a missing “young woman” led troopers to a post that resembled her on the now-defunct Backpage website, which provided advertising for prostitution, according to court papers. .
A trooper posing as a potential customer called the number and arranged a meeting at a Linthicum hotel, where Rogers was subsequently seen.
The trooper met the young woman – identified in court papers as M.H. – in one of the hotel rooms, where she told the officer that Rogers was her “boss,” had posted the ad on Backpage, had rented the hotel room, had required her to have sex with customers and then kept the proceeds, the court papers stated.
The troopers arrested Rogers, who pleaded guilty in 2015 to human trafficking. Under the plea agreement, the prosecution dropped a charge that Rogers was trafficking a minor, the papers added.
He was sentenced to 10 years in prison, with all but 548 days suspended, and two years’ probation.
Upon his release from prison, Rogers was administratively ordered to register as a sex offender.
He challenged the order in Anne Arundel County Circuit Court, saying he was never convicted of trafficking a minor.
The circuit court agreed, saying the registration requirement is punishment and applies only if it is pleaded to or proven beyond a reasonable doubt that the trafficking victim was a minor.
But the Court of Special Appeals overturned that decision last year, saying the circuit court was wrong to require proof beyond reasonable doubt. The registration requirement is not punitive and applies if the state can show by the civil standard of a preponderance of the evidence that it was more likely than not that the victim was a minor, the intermediate court held.
The Court of Appeals disagreed, saying that registration creates “an enduring stigma … akin to shaming” and “has developed in the direction of being punitive.”
Watts was joined in the majority opinion by Judges Robert N. McDonald, Joseph M. Getty and Brynja M. Booth.
Judge Jonathan Biran was joined in dissent by Chief Judge Mary Ellen Barbera and Judge Michele D. Hotten.
“(M)aryland’s sex offender registration regime is not punitive but rather achieves the remedial purpose for which the General Assembly intended it: to protect the public,” Biran wrote.
The Court of Appeals rendered its decision in Jimmie Rogers v. State of Maryland, No. 32, September Term 2019.