Brown & Little, P.L.C. » Arizona Constitution, Sex Crimes, US Constitution » Ex Post Facto Registration

Ex Post Facto Registration

I’ve written before about sex offender registration, which is required in Arizona for a variety of offenses. For many defendants, having to register is one of most unpalatable consequences of a conviction. It’s embarrassing. It forces them to remain in contact with the same evil government that rode roughshod over their rights to get a conviction in the first place. They end up living their lives being tracked like animals released into the wild, trying to move on but with a class four felony perpetually hanging over their heads.

Strangely, people who accept a plea knowing they face registration may be the lucky ones. Many defendants with old Arizona convictions and people moving here from other states have ended up having to register even though they had no idea when they were convicted that they might someday have to do so.

As is always the case, defense lawyers fought retroactive application of the registration statute from the beginning. At first, it even looked like they might succeed, and for good reason. Can you imagine a more obvious example of an unconstitutional ex post facto law?

In State v. Noble, one department of Arizona’s Court of Appeals fashioned a three-step ex post facto analysis in which it considered (1) whether the law is retroactive as applied to the defendant, (2) whether application of the law makes punishment for a crime more burdensome, and (3) whether the law imposes a criminal penalty. The court explained that the defendant was subjected to the registration statute for crimes that he committed before that statute’s effective date so it was retroactive, that it was clear that the statute makes more burdensome the sentences of those to whom it applies, and that the statute was penal in nature. It’s a great opinion; very clear, logical, and fair.

Unfortunately, another department of the Court of Appeals reached the opposite decision at more or less the same time. In State v. McCuin, the court concluded that the legislature’s purpose was regulatory rather than punitive. In the court’s make-believe world, apparently the registration requirement does not affirmatively inhibit or restrain an offender’s movement or activities. I’d like to see the deciding judges comply with registration for a decade or so and see if they feel the same way. They also claim it isn’t the kind of affirmative disability or restraint usually associated with criminal punishment. I’m sure that knowing the rich history of what things traditionally constituted criminal punishments will comfort all those unknowing defendants who are now saddled with oppressive registration requirements. Luckily, one judge on the panel didn’t have his head in the clouds, as he argued in a cogent dissent that, on balance, the statute is more penal than regulatory.

Facing two conflicting decisions from the lower court, the Supreme Court of Arizona granted review and got it dead wrong. D’oh! The court at least admitted that retrospective application of the statute altered the situation to the defendants’ disadvantage, but it determined the registration requirement was regulatory, not punitive. Although they claim their decision was close, they nonetheless concluded that requiring convicted sex offenders to register is not punishment. As is always the case, I wonder if they’d feel that way if they or a family member or loved one was facing registration.

So there you have it. If you were convicted years and years ago of an offense that Arizona has since decided requires sex offender registration, you must register. At least the court says it isn’t punishment, right? Hopefully that makes you feel a little better.

Filed under: Arizona Constitution, Sex Crimes, US Constitution · Tags: , , , , , , , , , , ,

One Response to "Ex Post Facto Registration"

  1. Lance Martinez says:

    Well, Mr. Brown, As you can see a legislator, a law degree, a judgeship, a president, a supreme court justice are insanely retarded. Any fool and “registered sex offender” positively knows that the Sex Offender Registration Act is indeed punitive.

    Once harm has been done, even a fool understands it.
    Homer, The Iliad

    It is almost ten years since my “so called crime”. I had no victim “adjudication withheld” another judicial farce and I live in seclusion isolated. Below is my testimony or statement to the powers that be!

    Tell Congress that the Adam Walsh Act (AWA) and the Sex Offender Registration Act (SORNA) is illegal and unconstitutional.

    Tell Congress that these laws are misrepresented as civil law with vindictive , retaliatory and punitive action that clearly offends our Constitutional rights as citizens of the United States of America, and is a disturbing, offensive affront to the supreme law of the land “Our Constitution of the United States”!

    It is my contention that the Adam Walsh Act (AWA) and the Sex Offender Registration Act (SORNA) are, in fact, a life sentence of imprisonment from ones family, friends, employment and society, in addition to lifelong humiliation, degradation and subjugation (a form of slavery) outside of prison (The Constitution of the United States, Article I, Section 9, paragraph 3 provides that:

    (“No Bill of Attainder or ex post facto Law will be passed.”) long after a court sentence was completed and satisfied as ordered punishment..

    “The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply – trial by legislature.” U.S. v. Brown, 381 U.S. 437, 440 (1965).

    Ex post facto is an adjective affecting a previous act, after, after the act is committed, after the fact, afterward, at a later period, at a later time, at a subsequent period, at a succeeding time, directly after, following in time, later, later in time, retroactive, thereafter

    Additionally, it should go without saying that our United States Constitutional 8th Amendment expresses protection from cruel and unusual punishment as:

    Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community.

    Last but not least, our Fourteenth Amendment of our United States Constitution is supposed to prevent states from denying its citizens certain fundamental rights that are deemed essential to the concepts of equality or liberty, including the right to autonomy, dignity and self determination.

    So you see! There are 3 distinct Constitutional laws trampled on by our Federal and State Governments. This behavior by our governing bodies will eventually extend directly into your freedoms if you do not take a stand and stop this illegal behavior from our legislators who act with total abandonment to our legal and civil rights.

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