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The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them. Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable to find a residence due to indigence and lack of support. Additionally, the IDOC does not permit any sex offender to use a homeless shelter as his or her host site. This group of people is also ineligible for work release programs that the IDOC provides.
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The Constitution thus entitles them to the same conditional liberty that all other releasees receive. The class-action suit remains pending on several still-unresolved matters, such as what manner of relief the plaintiffs are entitled to and other issues which are the subject of current settlement negotiations. See: Murphy v.
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Supreme Court cases—United States v. Carr and United States v. Comstock—involved challenges to such controls passed at the federal level. This report provides background information and examines relevant case law, with a particular focus on registration requirements and residency restrictions. Legislation enacted to protect the community from sex offenders is not a novel concept. At the federal level, Congress has passed a series of laws adopting the use of sex offender registries and community notification for sexually violent offenders and those committing offenses against children.
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The statute categorizes sex offenders into three tiers, with progressively longer and more scrutinizing registration requirements for each tier. Proponents argue that post-incarceration restrictions are necessary to reduce a demonstrably high recidivism rate, safeguard potential victims, and assist law enforcement in tracking offenders.
As some commentators question the efficacy of these controls, courts are assessing their constitutionality. Defendants have invoked a myriad of constitutional grounds in challenges to post-conviction restrictions. With some exceptions, federal courts have generally upheld the restrictions. For example, in a case, Smith v. Doe, the U. Applying Smith, federal courts of appeals have also generally upheld the federal registration law against such challenges.
However, as restrictions have increased in both number and severity, questions remain. Under what circumstances may these restrictions be applied? Can states and localities apply these restrictions retroactively? These are some of the issues likely to emerge in pending and future federal court cases.
Supreme Court cases— United States v. Comstock — involved challenges to such controls passed at the federal level. Opponents question the restrictions' practical impact on recidivism rates and argue that the controls may be disproportionate to the crimes committed. Doe , the U. Supreme Court upheld Alaska's sex offender registration requirements against an ex post facto challenge. Applying Smith , federal courts of appeals have also generally upheld the federal registration law against such challenges.
Is it possible that a statute's purpose or effect is so punitive as to negate a legislature's apparent non-punitive intent? The United States witnessed an increase in sex offender management policy at the federal, state, and local levels beginning in the s. As a result, laws have been enacted which impose a variety of post-incarceration controls on sex offenders. Three such controls—residency restrictions, registration requirements, and civil commitment—are especially at issue in judicial decisions in recent years. In two cases decided in the spring of , United States v.
Comstock 1 and United States v.
Carr , 2 the U. Supreme Court addressed questions raised by federal civil commitment and registration requirements. Residency restrictions are a matter of state law but also implicate federal constitutional guarantees. Proponents of strong post-incarceration controls argue that the restrictions are necessary to reduce a demonstrably high recidivism rate, safeguard potential victims, and assist law enforcement in tracking offenders.
Opponents question the restrictions' efficacy and argue that they are disproportionate to the crimes committed. As challenges to state and federal laws move through the courts, many questions remain. Should an offender be subjected to restrictions for crimes which occurred decades ago?
Should juveniles be subjected to the same restrictions as adults? These and other policy issues may be informed by judicial determinations. This report examines background and case law related to registration requirements and residency restrictions. The related issue of civil commitment was at issue in Comstock. In that case, the Supreme Court held that a federal statute authorizing the civil commitment of "sexually dangerous persons," 18 U.
For more information on United States v. Although specific requirements and parameters vary, all 50 states and the District of Columbia require persons convicted of sex offenses to register where they live or work. The obligation to register typically continues after a person has served a sentence, in some cases remaining in effect long after incarceration.
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Registration may have dual goals of assisting law enforcement and preventing future crimes. In many states, the latter goal is facilitated by making lists of registered sex offenders available to the public. During the past few decades, Congress passed laws encouraging states to enact progressively more rigorous registration requirements.
It first conditioned the receipt of federal grant funding on states' establishment of such requirements in They organize persons convicted of sex offenses into three tiers, calling for progressively more scrutiny and longer registration requirements for each tier. The requirements appear intended to create a comprehensive system to track convicted offenders as they move between jurisdictions. The deadline by which states and other jurisdictions were to have substantially implemented the SORNA guidelines was July 27, One aspect that has proven problematic is the application of public notification requirements to persons whose convictions for sex offenses occurred when they were minors.
In addition to the registration requirements and guidelines, SORNA established a new federal criminal provision, 18 U.
Court holds that retroactive extension of sex offender registration is punitive
To reach that conclusion, courts rely on the statutory text, which defines a "sex offender registr[y]" as a "registry of sex offenders, and a notification program maintained by a jurisdiction," without specifying that the registry must be one that implements the guidelines promulgated pursuant to SORNA. Another key question that arose with regard to the criminal provision was the extent to which it applies retroactively.
The statute authorizes the U. Attorney General to "specify the applicability of the requirements A more complicated question regarding the retroactive application of SORNA's criminal provision arose in cases in which a defendant's interstate travel, rather than only the sex offense conviction, predated SORNA's enactment. In a June ruling, United States v. Carr , 27 the U. Thomas Carr, the defendant in the case, was convicted of first degree sexual abuse in Alabama in and subsequently registered as a sex offender in that state.
In an unpublished opinion, the district court rejected both arguments, 30 and the U. Court of Appeals for the Seventh Circuit affirmed. The U. Instead, it resolved the case by agreeing with the first of Carr's grounds for challenging his conviction. In an opinion by Justice Sotomayor, the Court reached that conclusion after a review of the statutory text and framework.
Nevertheless, fact scenarios distinct from the circumstances at issue in Carr are likely to trigger constitutional questions. The most common constitutional theories argue that the provisions violate the Ex Post Facto Clause; exceed Congress's Commerce Clause power; violate a defendant's Fifth Amendment due process rights; or represent an unconstitutional delegation of legislative power. Constitution prohibits the enactment of any ex post facto law. There appears to be broad consensus that Congress's intent when it enacted SORNA was to establish a civil regulatory scheme rather than a criminal one.
Doe , 44 a case in which the Court upheld an Alaska registration statute. In Smith , the U. Mendoza-Martinez , 46 the Supreme Court reversed. The factors require a court to consider whether a law 1 involves an affirmative disability or restraint; 2 has historically been regarded as a punishment; 3 comes into play only on a finding of a requisite mental state; 4 will promote the traditional aims of punishment—namely retribution and deterrence; 5 applies to behavior that is already considered criminal; 6 has an alternative purpose to which it may rationally be connected; and 7 appears excessive in relation to the alternative purpose assigned.
The federal statute differs from state laws such as the Alaska law at issue in Smith in ways that some commentators argue are legally significant. With one exception, U.
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Echoing the Supreme Court's rationale, they have generally emphasized Congress's non-punitive intent in enacting SORNA and thus rejected ex post facto challenges. The exception to that trend is a decision by the U. Juvenile Male. However, the underlying conviction for a sex offense occurred when the defendant was a juvenile, as a result of non-consensual sexual activity that occurred when the defendant was 13 to 15 years old.
Doe , but noted that the factors serve only as "useful guideposts. Thus, the court held that unlike convicted adults, the federal registration requirements impose a new stigma on former juvenile offenders in violation of the Ex Post Facto Clause. In June , the Supreme Court issued a per curiam i. However, ex post facto questions continue to arise in other cases. Although federal courts have rejected broad challenges on ex post facto grounds, questions remain in Juvenile Male , and could reach the Supreme Court in another case involving unique punitive impacts or grey area timelines.
For example, one concern is that ex post facto concerns may be implicated if a defendant's failure to register occurred too soon after the federal law took effect. Regarding notice, the general rule is that ignorance of the law is no excuse. California , 64 the Supreme Court struck down a conviction under a Los Angeles ordinance on lack-of-notice grounds.