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.