Wisconsin Statute § 301.48(2)(a)(7) requires lifetime monitoring of offenders who have been convicted of a sex offense on two or more separate occasions. The plaintiffs sued alleging that the statute violates their rights under the Fourth Amendment. This tracking continues after the person has completed post-confinement supervision with no opportunity to have the obligation terminated. The tracking data is not monitored in real time; rather, officials review it every 24 hours or so to determine if an offender has been near a school, a playground, or another place that might raise a concern. The program is administered by the Secretary of the Wisconsin Department of Corrections; thus, the Secretary of Corrections was named as the defendant.

NARSOL feels strongly that it is unconstitutional to search a person and seize their private location data unless that person has had some due process. We see it as analogous to permitting search of a person, the person’s vehicle, or their home without any individualized determination that justifies the intrusion after the person is no longer under judicial control. Unfortunately, the Seventh Circuit does not agree with us.

The details provided by the court regarding the plaintiffs are these: Each of the plaintiffs has been convicted of multiple sex offenses involving children, offenses ranging from child molestation to possession of child pornography. The facts of each plaintiff should not matter because they served prison terms and completed their post-confinement supervision. It is only because they have been convicted of sex offenses on two or more separate occasions that they are subject to lifetime GPS monitoring.

The court noted that it has addressed this issue once before in Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016). The Belleau Court upheld a subsection of the statute that imposes lifetime monitoring on sex offenders who have been released from post-prison civil commitment. Applying the Fourth Amendment’s reasonableness standard, they held that the government’s interest in deterring recidivism by these dangerous offenders outweighs the offenders’ diminished expectation of privacy. See Belleau at 935–36. In this case, the court stated, “We begin with the background Fourth Amendment principles. The Fourth Amendment prohibits ‘unreasonable searches,’ and as a general matter, warrantless searches are presumptively unreasonable.” In NARSOL’s opinion, this should have ended the inquiry because there is no warrant requirement. This is simply a blanket statute in Wisconsin that mandates that recidivist offenders be monitored for life. This did not end the inquiry because the United States Supreme Court held in Grady v. North Carolina, 575 U.S. 306 (2015), that warrantless GPS monitoring of sex offenders could be reasonable under the Fourth Amendment, depending on an evaluation of the nature and purpose of the search and the degree of intrusion on reasonable privacy expectations. The narrow question before the Court in Grady was whether satellite-based monitoring of recidivist sex offenders qualifies as a search. In a brief per curiam opinion, the Supreme Court said yes, but it went no further. That is, the Court did not decide whether this type of search is reasonable, but instead remanded for the North Carolina courts to make that determination, with the following instructions: “The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.” See Grady at 310.

In Belleau, the Seventh Circuit had concluded that offenders like Belleau thus pose a significant danger to the public even after they are released from prison or civil commitment. Recognizing the difficulty of distinguishing Belleau from their case, the plaintiffs in this case sought to undermine its foundations. They argued that Packingham v. North Carolina calls Belleau into question. In Packingham the Supreme Court addressed a North Carolina statute that prohibited sex offenders from accessing websites of which minors are members. The Supreme Court held that the statute was impermissibly overbroad in violation of the First Amendment. NARSOL has consistently urged caution regarding Packingham. Too many want to read far more into Packingham than they should. In this case, the court stated, “The plaintiffs’ reliance on Packingham is misplaced. That case involved an application of the First Amendment’s overbreadth doctrine. This is a Fourth Amendment case. As we’ve explained, the application of the Fourth Amendment’s reasonableness requirement has long involved balancing the government’s interests against the individual’s reasonable privacy expectations—not overbreadth analysis. Packingham thus has no relevance here.” See Opinion at 12.

NARSOL will be discussing options in terms of whether a Petition for Certiorari will be filed with the United States Supreme Court.

Larry and Andy discussed this case on Registry Matters 231.

Shane Lewis was charged with involuntary sexual servitude of a minor, traveling to meet a minor, and grooming. At trial, he asserted the defense of entrapment. A Kane County jury found him guilty of the offenses, and the circuit judge sentenced him to six years’ imprisonment. On appeal, Lewis argued that his defense counsel was ineffective in presenting his entrapment defense where he failed to (1) object to the circuit court’s responses to two jury notes regarding the legal definition of “predisposed,” (2) object to the prosecutor’s closing argument mischaracterizing the entrapment defense and the parties’ relevant burdens of proof, and (3) present defendant’s lack of a criminal record to the jury. The appellate court agreed with Lewis and reversed his conviction, holding his defense counsel’s cumulative errors rendered the proceeding unreliable under Strickland v. Washington, 466 U.S. 668 (1984). As usual when an accused wins an appeal, Illinois sought review by the state’s highest court. It is clear that Illinois prosecutors did not want Lewis to have a new trial. The reason is an appellate court’s favorable decision, if allowed to stand, could open the proverbial floodgates because others have asserted an entrapment defense.

According to the opinion, the following evidence was presented to the jury. Geoffrey Howard, a special agent with the Department of Homeland Security (DHS), testified that he coordinated a sting operation with the Aurora Police Department and that the goal of the undercover operation was to arrest multiple people on the demand side of human trafficking. The operation involved posting an advertisement for an escort on Backpage.com. He described Backpage.com (Backpage) as a website that had advertisements for various goods and services and had an adult services section. The phone number in the ad did not link to an actual phone but rather went into a software system that allowed multiple officers to read and respond to text messages. The program created a record of all the messages. According to Howard, as a matter of protocol, the officers were to stop talking or texting with a suspect if the suspect wanted to have sex with an adult. Before posting the ad, agents reserved adjoining rooms at a hotel in Aurora, and in the “target room” an undercover agent posed as a mother who was offering her 14 and 15-year-old daughters for sex.

Agent Melissa Siffermann of DHS was the undercover agent waiting in the “target room” to meet Lewis. She posed as the mother of the two minor girls. She told Lewis that she likes to meet the guys first just to make sure that they’re not crazy. In addition, she told Lewis he looked like a nice guy and seemed like a good guy. Siffermann also told Lewis that, as their mother, she was ok with this, that she would tell them it’s fine. Eventually, Lewis put $200 on a nightstand. At that point, around 11:25 p.m., Siffermann proceeded to the bathroom. Seconds later Lewis was arrested.

A key issue for an entrapment defense to be successful is whether or not a person was predisposed to commit a crime. Lewis testified that he had never had any desire as an adult to have sex with a minor and that he agreed to do so only because the agents put an idea in his head that was never there before. He also explained that, whenever he expressed reluctance or doubt, the agents diverted the conversation and complimented him. Over the State’s objection, the circuit court granted Lewis’ motion to instruct the jury on the defense of entrapment. The court instructed the jury as follows with Illinois Pattern Jury Instruction. “It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant, he was incited or induced by a public officer to commit an offense. However, the defendant was not entrapped if he was predisposed to commit the offense and a public officer merely afforded to the defendant the opportunity or facility for committing an offense.”

The State argued that the appellate court erred in granting relief on Lewis’ ineffective assistance of counsel claim. Lewis argued that defense counsel’s cumulative errors support his claim of ineffective assistance of counsel. Lewis pointed out that the appellate court properly found that he was prejudiced by defense counsel’s errors in presenting his entrapment defense. Lewis requested cross-relief, arguing (1) that the State failed to prove beyond a reasonable doubt that he was not entrapped into committing the offenses, (2) that he was not guilty of involuntary sexual servitude of a minor where that statute applies to sex traffickers, not to patrons, and (3) his conviction and sentence for involuntary sexual servitude of a minor should be vacated because the statute violated the proportionate penalties clause of the Illinois Consstitution.

They Illinois Supreme Court affirmed the appellate court which had held that: “Defendant was prejudiced by defense counsel’s three errors, which constituted deficient performance. Strickland prejudice is defined as “a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different” (relying on Strickland v. Washington, 466 U.S. at 694). See Opinion at 25. The appellate court succinctly stated, “The effect of the State’s burden-shifting inducement argument and the jury’s confusion over predisposition was further compounded by defense counsel’s failure to inform the jury that defendant had no criminal history—a fact that would have bolstered the argument that defendant was not predisposed to commit the offenses before his exposure to government agents.”  Opinion at 25-26.

Based on the court’s recitation of the relevant facts, NARSOL finds this type of operation to be repugnant and a waste of resources. NARSOL is excited that the Illinois Supreme Court appears to have recognized the overreach on these sting operations. This decision may lead to the entrapment defense being raised more frequently going forward in the state of Illinois.

Trial Court History

United States District Court Richard Young, who serves in the Southern District of Indiana, handed down a fantastic decision back in 2019. We said at the time that the decision had the potential to help many similarly situated offenders who were: (1) convicted in other states and moved to Indiana; or (2) convicted in Indiana, moved away and returned again.

The case was brought on behalf of six named plaintiffs who asserted that the imposition of Indiana’s SORA is unconstitutional as applied to them. Plaintiffs Hope and Snider filed their joint complaint on October 21; Standish joined the case later in 2016. Plaintiffs Rice, Bash, and Rush filed a complaint on December 6, 2017. The court ultimately consolidated the cases. Plaintiffs sought a preliminary injunction which was granted. All but one of the six committed their offense prior to the enactment of Indiana’s registration, and five of the six committed their offense in other states and subsequently moved to Indiana.

Plaintiffs argued that Indiana’s SORA violates their fundamental right to travel, their right to equal protection of the laws, and their right to be free from retroactive punishment. The court examined two important cases. First, the court looked at Smith v. Doe, 538 U.S. 84 (2003) which is the landmark case from the U.S. Supreme Court. The court found the case distinguishable because none of the disabilities imposed by Indiana’s scheme were required by Alaska. Second and more relevant was the case of Wallace v. State, 905 N.E.2d 371 (2009). In Wallace, the offense was committed in1988; he pled guilty in 1989 and completed probation in 1992. After he failed to register in 2003, a jury found him guilty. He appealed and prevailed.

The court rejected all of Indiana’s arguments, and they did put forth some interesting theories. NARSOL said at the time, “The judge’s legal analysis is one of the best I’ve ever seen written, which will make it extremely difficult for the Seventh Circuit to reverse.”

Initial Seventh Circuit Decision

Appellate courts typically decide appeals by having the case reviewed by a three-judge panel. The three-judge panel did affirm Judge Young.

None of the challengers would have been required to register if they: (1) had not moved out of Indiana and returned after 2006; or (2) had not moved into Indiana after 2006. It was in 2006 that the Indiana law was amended to include the requirement that forced a person to register if they relocated to Indiana and had a registration obligation in that state, regardless of whether it is equivalent to an Indiana offense.

All six of the plaintiffs were required to register in Indiana based on a determination by the Indiana Department of Corrections (DOC) and local sheriff’s departments that they had committed a registrable offense or the out-of- state equivalent to such an offense and that they had been required to register in another jurisdiction. Indiana would not have required them to register on these grounds had they been living in the State at the time they committed their offenses and remained there continuously thereafter.

The Seventh Circuit’s initial decision relying on a Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009) recognized that registration requires more than simply appearing at the sheriff’s office. The person registering must be photographed and provide information including their name, date of birth, race, height, weight, hair color, eye color, identifying features such as scars and tattoos, social security number, driver’s license or state identification card number, vehicle description and license plate number of any vehicle the registrant might operate regularly, principal address, name and address of any employer or educational institution, any electronic mail addresses, any instant messaging user names, any social networking website user name and “[a]ny other information required by the [Department of Corrections (DOC)].” Ind. Code § 11-8-8-8(a). Most of this information is published on the public registry. If any of this information changes, the registrant must go in person to the sheriff’s office, within seventy-two hours, to report it. Ind. Code. § 11-8-8-8(c). Convicted sex offenders are required to maintain a valid driver’s license or state identification card, are prohibited from seeking a name change, and must allow a local law enforcement officer to visit their home at least once per year, and at least once every ninety days if the offender is a “sexually violent predator.” Ind. Code § 11-8-8-13(a).

In Wallace v. State, the Indiana Supreme Court concluded, “. . . the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies. … [and the] duties imposed on offenders are significant and intrusive.” SeeWallace v. State, 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana Supreme Court concluded that the Act had the “. . . effect of adding punishment beyond that which could have been imposed when his crime was committed,” and therefore the State could not impose the requirements of SORA on anyone whose offense predated the enactment of that statute. Id. at 384. To do so, it held, would violate the ex post facto clause of the Indiana Constitution. Id. As a result, Indiana does not require any person to register if the offense occurred prior to SORA— provided that person remains a resident of Indiana. This Seventh Circuit decision held that this different treatment “sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit.” Original Opinion at 26.

Recent Seventh Circuit Decision

The Seventh Circuit was very creative in how it managed to undo the previous victory. Judge St. Eve writing for the court noted that Wallace did not foreclose all retroactive applications of SORA because the same day that the state supreme court decided Wallace, it issued its opinion in Jensen v. State, 905 N.E.2d at 388. Unlike Wallace, Jensen pleaded guilty in 2000 which was after SORA’s enactment. At the time of Jensen’s conviction, SORA required that he register as a sex offender for ten years. Before the expiration of Jensen’s ten-year registration requirement, the Indiana General Assembly amended SORA to mandate that offenders like him register for life. He argued that this extension as applied to him violated Indiana’s Ex Post Facto Clause. Unfortunately, the Indiana Supreme Court disagreed. This is in contrast to Wallace, who had no obligations before the legislature amended SORA to cover him. The court said that the broad and sweeping disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. They found that merely increasing the length of an existing registration obligation did not rise to the level of punishment such that it violated the Indiana Constitution.

This case was decided in favor of Indiana based on the fact that these challengers were either required to register by another state or that the person was already required to register due to a previously existing registration requirement. They found that any increase of an existing registration requirement is not unconstitutional. On page 32 of the decision the court stated, “The plaintiffs have not carried their heavy burden of proving that SORA is so punitive in effect as to override the Indiana legislature’s intent to enact a civil law.”

It appears that the Seventh Circuit disregarded Judge Young’s analysis and simply deferred to the Legislature’s stated intent, which they say is not punitive. The court did concede, “While SORA goes farther than the Alaska law in some respects, it is not so far afield as to warrant a different outcome than in Smith.” See Opinion at 32. NARSOL is deeply disappointed that the decision of the full court was to not affirm the three-judge panel. We are not sure if the challengers will seek review by the United States Supreme Court.

This was discussed in more detail on Episode 190 of the Registry Matters Podcast.

In December 1993, Defendant Betts pleaded guilty to second-degree criminal sexual conduct (CSC-II). The trial court sentenced him to 5 to 15 years’ imprisonment. Two years later, SORA took effect. After Betts successfully completed parole, he failed to comply with SORA regarding his requirements. Specifically, in 2012, he failed to report his change of residence, his e-mail address, and his purchase of a vehicle within 3 days. Betts was charged with violating SORA’s registration requirements. He challenged the statute as being unconstitutional as applied to him since his offense occurred prior to the existence of registration in Michigan.

Parallel Federal Litigation

Due to the fact that there were multiple challenges pending, some mistakenly thought that the matter had already been resolved by the Does v. Snyder case decided by the United States Court of Appeals in 2016. See Does #1-5 v. Snyder, 834 F3d 696, 705-706 (2016). The Snyder case was initiated in 2012 by five plaintiffs required to register as Tier III offenders due to the 2011 SORA amendments. They sued Michigan’s governor and the director of the Michigan State Police, arguing that the 2011 SORA was unconstitutional on several grounds. In a series of opinions, the federal district court partially ruled in the plaintiffs’ favor, holding that the 2011 SORA’s student-safety zone provisions were unconstitutionally vague, that certain in-person reporting provisions were unconstitutionally vague, that certain in-person reporting provisions violated the First Amendment, and that registrants [litigants] could not be held strictly liable for violating the 2011 SORA’s requirements. However, the district court rejected the remainder of the claims, including their argument that the retroactive application of the 2011 SORA violated ex post facto protections. On appeal, the Sixth Circuit held that the various amendments imposed in 2006 and 2011 had tipped the legal analysis and that Michigan’s SORA was unconstitutional as applied to the plaintiffs.

Michigan’s First Registration Law

“Although Michigan’s SORA as initially enacted was similar to the Alaska sex-offender registry at issue in the Smith, subsequent amendments have imposed additional requirements and prohibitions on registrants, warranting a fresh look at how the 2011 SORA fares under the constitutional ex post facto protections.” Opinion at 15. The Michigan Supreme Court cited Doe v. State, 189 P3d 999, 1017 (2008) wherein the Alaska Supreme Court held that because of intervening amendments of its sex-offender registry that increased requirements and restrictions on registrants, the retroactive application of its sex-offender registry laws violated ex post facto protections. Id at 15. This first version of Michigan’s SORA created a confidential database accessible only to law enforcement. It required persons convicted of certain sex offenses to register and notify law enforcement of address changes. Since then, the legislature has amended the act several times, altering both the nature of the registry and the requirements imposed by it.

Evolution Year by Year

Michigan’s registry became accessible to the public in 1997 when the legislature required law enforcement to make the registry available for in-person public inspection during business hours. Shortly thereafter, in 1999, the legislature required computerization of the registry and granted law enforcement the authority to make the computerized database available to the public online. And in 2006, the legislature allowed for the registry to send e-mail alerts to any subscribing member of the public when an offender registers within or when a registrant moves into a specified zip code. As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded as well. In 2002, registrants were required to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education. Two years later, in 2004, the legislature directed registrants to provide an updated photograph for addition to the online database. In 2011, more personal information, including employment status, electronic mail addresses and instant message addresses, vehicle information, and travel schedules were added. Registrants were required to update law enforcement of these changes within three business days, a substantial shortening of the time frame from the initial 10- day reporting window. The updates were also required to be made in person rather than by mail, telephone, or e-mail.

Unable to Stop While Ahead

As with most state legislatures, Michigan’s was not able to help itself, and they kept piling on more and more requirements and prohibitions. Specifically, amendments effective in 2006 created exclusion zones that prohibited most registrants from living, working, or loitering within 1,000 feet of a school. The legislature also added an annual registration fee of $50. In 2011, the legislature also enacted significant structural amendments of SORA. These amendments (designed to achieve AWA compliance) categorized registrants into three tiers on the basis of their offenses and based the length of registration on that tier designation. With this reclassification came lengthened registration periods, including a lifetime registration requirement for Tier III offenders. Registrants’ tier classifications were also made available on the public database.

Proving Unconstitutionality

For evaluation of whether registration is civil and non-punitive, the United States Supreme Court has provided seven non-exhaustive factors are relevant to the inquiry. SeeKennedy v. Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 644 (1963). Those factors are:

1. Whether the sanction involves an affirmative disability or restraint.
2. Whether it has historically been regarded as a punishment.
3. Whether it comes into play only on a finding of scienter.
4. Whether its operation will promote the traditional aims of punishment—retribution and deterrence.
5. Whether the behavior to which it applies is already a crime.
6. Whether an alternative purpose to which it may rationally be connected is assignable.
7. Whether it appears excessive in relation to the alternative purpose assigned

They went on to say, “Again, a challenging party must provide the clearest proof of the statutory scheme’s punitive character in order to [successfully] negate the State’s intention to deem it civil.” The Court continued, “In determining whether defendant has satisfied this burden, we do not examine individual provisions of SORA in isolation but instead assess SORA’s punitive effect in light of all the act’s provisions when viewed as a whole. We assess in turn each of the factors that the United States Supreme Court identified as relevant in Smith.”

The Court found that, of the five factors it deemed relevant, four weighed in Betts’ favor. Two of the factors were deemed not relevant for the analysis.

NARSOL found it highly significant where, on page 28,  the Court said, “Given the uncertainty of the 2011 SORA’s efficacy, the restraints it imposed were excessive. Over 40,000 registrants were subject to the 2011 SORA’s requirements without any individualized assessment of their risk of recidivism. The duration of an offender’s reporting requirement was based solely on the offender’s conviction and not the danger he individually posed to the community. Registrants remained subject to SORA—including the stigma of having been branded a potentially violent menace by the state—long after they had completed their sentence, probation, and any required treatment. All registrants were excluded from residing, working, and loitering within 1,000 feet of a school, even those whose offenses did not involve children and even though most sex offenses involving children are perpetrated by a person already known to the child. As described, this restriction placed significant burdens on registrants’ ability to find affordable housing, obtain employment, and participate as a member of the community…” Opinion at 28-29.

Disabilities & Restraints

In order for registration to be imposed retroactively, it cannot impose disabilities or restraints. See Smith v. Doe, 538 U.S at 100. The court noted that, “. . . the 2011 SORA’s student-safety zones excluded registrants from working, living, or loitering within 1,000 feet of school property. Unlike traditional banishment, these exclusion zones did not explicitly exile a registrant from the community. But they might have effectively banished a registrant from living within the community. For example, in urban areas that host several schools within their geographic borders, the 1,000-foot restriction emanating from each school might have eliminated access to affordable housing. Or, in rural areas with fewer schools but concentrated community areas, the 1,000-foot restriction might have eliminated a registrant’s access to employment and resources within the town or city center. And available homeless shelters might have also been encompassed by the 1,000-foot residency restriction.” Opinion at 18. Compare with Smith v. Doe, 538 US at 101 noting that the 2003 Alaska sex-offender registry, which the United States Supreme Court held did not violate ex post facto protections, left registrants free to move where they wish[ed] and to live and work as other citizens. The Court also found, “. . . THE 2011 SORA also resembles the punishment of shaming. The breadth of information available to the public—far beyond a registrant’s criminal history—as well as the option for subscription-based notification of the movement of registrants into a particular zip code, increased the likelihood of social ostracism based on registration. While the initial version of SORA might have been more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality…” Id at 18.

Conclusion of the Court

NARSOL is excited that the Court’s conclusion is unambiguous. “We hold that the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws. As applied to defendant Betts, because the crime subjecting him to registration occurred in 1993, we order that his instant conviction of failure to register as a sex offender be vacated.”

The appeals court stated, “While we fully acknowledge that, to date, the internet has become one of the most important places, if not the most important place, for people to exchange views and ideas, under the circumstances here, we disagree with both of Landis’s contentions.” The court briefly recited the facts underlying Landis’ conviction. “According to the affidavit of probable cause for arrest, Landis sexually assaulted his stepdaughter when she was ten years old. The evidence included his admission to police that he touched the victim’s vagina and breasts. In a negotiated pea, Landis pleaded guilty to one count of attempted sexual assault on a child.  The parties stipulated to a sentence to probation.

At the sentencing hearing, the prosecutor agreed with the recommendation in the presentence investigation report, that the court sentence Landis to sex offender intensive supervision probation (SOISP) and require him to comply with (1) the standard “Additional Conditions of Probation for Adult Sex Offenders” (the standard conditions) and (2) the recommendations in the sex offense specific evaluation (SOSE). The court sentenced Landis to seven years of SOISP. As for the two standard conditions restricting use of the internet and social media, the court required Landis to comply with those conditions but modified them to allow for such use required by his employment at the electronics installation company.

Landis argued that he should not be required to comply with the two standard conditions prohibiting use of the internet and social media without prior approval from his probation officer. He emphasized that he is required to use the internet in his ongoing employment at an electronics installation company. He also argued that the conditions violate his constitutional rights based on Packingham v. North Carolina (2017) which invalidated a statute creating a new felony offense for violation of post-custodial restrictions on sex offender access to social media.

The court emphasized that probation is an alternative to prison and is intended to be rehabilitative Opinion at 4. Colorado Revised Statutes, Section 18-1.3-204(2) lists the various conditions of probation that a district court may impose, which includes a catchall for “any other conditions reasonably related to the defendant’s rehabilitation and the purposes of probation.” The court relied on People v. Brockelman, 933 P.2d 1315, 1319 (Colo. 1997). The court stated, “We conclude from our evaluation of the five Brockelman factors that the probation conditions at issue restricting Landis’s use of the internet and social media are reasonably related to his rehabilitation and the purposes of probation. First, the conditions are reasonably related to Landis’s underlying offense. To be sure, Landis did not use the internet in attempting to sexually assault his stepdaughter. However, he engaged in sexual conduct with a child, and it was reasonable to place restrictions on Landis’s use of a medium that easily can be used to facilitate contact with children.” According to the SOSE, objective testing indicated that Landis’s highest sexual interest is toward juvenile females. It also concluded that he was in high denial regarding his offense. The SOSE recommended that he be “monitored carefully while in the community” and “not have contact with [the victim] or with anyone younger than 18.”

The Supreme Court specifically pointed out in Packingham that “of importance” to the Court was “ . . . the troubling fact that the [North Carolina] law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system.” The Supreme Court repeated the same point soon after, concluding that “It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.”

The Colorado Court of Appeals concluded that Packingham is distinguishable on that basis. Unlike the defendant in Packingham, Landis is quite obviously still serving his probationary sentence for a sex-related offense. They went on to say, “As the United States Supreme Court held in United States v. Knights, “Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled” ’ ” Opinion at 13. Finally, the Court said that there are ample alternatives. “The probation conditions at issue still leave ample channels of communication for Landis to engage in everyday life. For example, Landis may still communicate in person, communicate over the telephone, receive news from television and newspapers, and write to his government representatives” Opinion at 18.

On December 1, 2008, Powell was indicted for having knowingly through the Internet contacted and communicated with a person whom he reasonably believed to be a twelve-year-old girl, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity in violation of SC Code Ann. §16-15-342. On April 2, 2009, Powell pled guilty to the indictment and was sentenced to two years’ imprisonment suspended to one year of probation. At sentencing, the court notified Powell that he would be required to register as a sex offender under SORA, which mandates lifetime registration for sex offenses, including criminal solicitation of a minor.

On November 21, 2016, Powell filed a petition in the circuit court for a declaratory judgment, claiming SORA does not permit publication of the state’s sex offender registry on the internet, and the lifetime duration of his sex offender registration constitutes excessive punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 15 of the South Carolina Constitution, deprives him of due process and equal protection, and warrants equitable relief in the form of his removal from the registry. After cross-motions for summary judgment by the parties, the circuit court held a hearing and granted Powell’s motion on all claims. The circuit court held SORA’s lifetime registration requirement is punitive under the Eighth Amendment and violates Powell’s rights to due process and equal protection. The circuit court also determined SORA does not permit publication of the state’s sex offender registry on the internet.

Mark Keel, Chief of the State Law Enforcement Division (“SLED”), and the State of South Carolina, were not happy with the circuit court’s decision. The state filed a motion to alter or amend the judgment, which the circuit court considered under Rule 59(e), South Carolina Rules of Civil Procedure (SCRCP), and denied. Thereafter, the state appealed to the court of appeals, which transferred the case to the Supreme Court pursuant to Rules 204(a) and 203(d)(1)(A)(ii), SCACR. The South Carolina Supreme Court affirmed the circuit court and held SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending. Unfortunately, they reversed the circuit court and held that subsection 23-3-490(E) permits dissemination of the State’s sex offender registry information on the internet.

The South Carolina Supreme Court has previously recognized the state’s legitimate interest in requiring sex offender registration. The court noted, “We find the initial mandatory imposition of sex offender registration satisfies the rational relationship test in light of the General Assembly’s stated purpose. In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), the U.S. Supreme Court found that due process does not require a pre-deprivation hearing where the registry requirement is based on the fact of previous conviction. The South Carolina Supreme Court overruled itself and stated, “. . . notwithstanding this finding, we hold SORA’s lifetime registration requirement without any opportunity for judicial review to assess the risk of re-offending is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending.”

The court noted that the development of a judicial review process is a matter best left to the General Assembly and stated, “We are confident in the General Assembly’s ability to fulfill our request to fashion the particulars of the hearing process. Nevertheless, we require the hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration be conducted with reasonable promptness and meet standards of fundamental fairness.” NARSOL is hopeful that the General Assembly will find it within its power to create a process that is fair and offers all registrants a way to be removed from the registry list and resume a more normal life. Our advocates in South Carolina are optimistic that legislators will do the right thing as ordered by the state’s highest tribunal.

The question before the court was whether Montana can force Menges to register as a sexual offender for his Idaho conviction. Menges is required to register in Montana for having consensual sex in Idaho with a 16-year-old when he was 18 years old back in 1993. Normally that would not have triggered a registration obligation in Idaho, but he engaged in homosexual activities, and Idaho convicted him of crimes against nature, which is on their list of registerable offenses.

He was sentenced to 15 years imprisonment. Upon release, Menges was required under Idaho law, and still would be required, to register as a sexual offender in Idaho if he lived there. At some point, Menges re-located to Montana. Unfortunately, he could not escape the registration requirement because he was required to register under Montana’s Sexual or Violent Offender Registration Act as he was covered by the catchall clause many states have in their law. Under Montana law, a sexual offender is anyone who has been convicted of a sexual offense. Critical to this case, a sexual offense includes “. . . any violation of a law of another state . . . for which the offender was required to register as a sexual offender after an adjudication or conviction.” See Idaho Code § 46-23-502(9)(b).

Menges also filed a lawsuit in Idaho challenging the constitutionality of the underlying statute. In response, Montana requested that the court stay the matter in light of the parallel Idaho federal court action along with various other motions. The Court set a hearing on the motions and provided advance notice of its intent to consolidate the hearing with a trial on the merits. Neither party objected to the consolidation, and the hearing commenced on March 30, 2021. Menges testified, and the Court heard argument from counsel on the legal issues presented. The state’s request to stay this proceeding is the inevitable outcome of him having the parallel lawsuit in Idaho. Fortunately for him, the judge denied their request for a stay.

Montana also contested that Menges had standing to bring the challenge. The court had the following to say in response. “At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset of the case. In order to establish standing, Plaintiffs must show (1) [they have] suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” See Opinion at 9.

The Montana attorney general has vowed an appeal and stated this decision will blow a gaping hole in the registry. We don’t think this is the case because the underlying criminal statute which obligates Menges to register in Idaho, and, accordingly in Montana, does not concern itself with the age of Menges’ sexual partner. As the court noted, “…Menges’ underlying criminal conviction is not for having sexual contact with a minor, it is for having sexual contact with another male. And that is why Montana requires him to register—not for having sexual contact with a minor, but for having sexual contact with another male.” See Opinion at 42.

As noted earlier, Menges asserted several constitutional violations. It is our opinion that the Equal Protection Clause was most significant. The court stated, “In sum, Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male when he was 18, but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 at the age of 18 for engaging in vaginal sex with a 16-year-old female. Consequently, that operation of Montana law flouts the guarantee of equal protection and Menges enjoys actual success on the merits of his equal protection claim.” See Opinion at 58.

The Court concluded and NARSOL agrees that “. . . enforcement of Montana’s registration requirement against Menges has inflicted upon him three distinct constitutional violations. This includes his constitutional rights to substantive due process, equal protection, and privacy.” We are gratified with the decision and hope that the United States Court of Appeals for the Ninth Circuit will affirm.

The two John Doe plaintiffs each brought a separate action against the governor of the state of Tennessee and the director of the Tennessee Bureau of Investigation, each in their official capacity only. In their respective complaints, plaintiffs alleged  that the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution, (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.

The Sixth Circuit had previously upheld Tennessee’s sex offender registry laws against challenges similar to those plaintiffs brought in these two cases. SeeCutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999). The problem is that legislatures just can’t help themselves, and they keep piling on more and more restrictions. Prior to SORVTA (Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004), Tennessee’s registration requirement was known as the Sexual Offender Registration and Monitoring Act of 1994 (SORMA). SORMA was frequently amended, expanding SORMA’s scope and requirements and contracting registrants’ level of confidentiality. Notably, SORMA was amended in 2000 to require lifetime registration for those convicted of actual or attempted aggravated rape, rape, aggravated sexual battery, or rape of a child. On June 8, 2004, SORMA was repealed and SORVTA was enacted. SORVTA replaced the framework for sex offender registration and restrictions in Tennessee. While much of the former system continued, SORVTA created a new classification of registrants and a new series of requirements, depending on a registrant’s classification. In 2014, the General Assembly of Tennessee again amended SORVTA to create a new offender classification: “offender against children.” Registrants whose victims were twelve years or younger at the time of the offense became subject to lifetime registration, regardless of whether the underlying offense was categorized as “violent.” It was the violent classification that appears to have helped John Doe #1. He had no history of violence.

Quoting from the opinion, the court stated, “Indeed, the Sixth Circuit’s decision in Snyder I has reshaped how district courts in this Circuit analyze challenges to sex offender registration laws under the Ex Post Facto Clause. In their Partial Summary Judgment Motion, Plaintiffs rely heavily on the ruling in Snyder I, arguing essentially that SORA is substantially identical to the Michigan law at issue in Snyder I and is in violation of the Ex Post Facto Clause.” See Opinion at 19. In Snyder I, the Sixth Circuit held that Michigan’s Sex Offenders Registration Act imposed punishment and that therefore the retroactive application of MSORA’s 2006 and 2011 amendments was unconstitutional as violative of the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016). The court in Snyder I took issue with three parts of the statute, which cumulatively made the statute unconstitutional under the Ex Post Facto Clause: (1) the prescription of restricted zones where plaintiffs could not loiter, live, or work, (2) the public classifications to which plaintiffs were subject, and (3) the reporting obligations under MSORA.

There were some claims that survived the state’s motion to dismiss that were not decided by the judge. The plaintiffs asserted that the law violates the right to free speech guaranteed by the First Amendment and imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment. Those claims were not decided because the court was able to grant the relief, they sought on the Ex Post Facto Clause. This is standard for courts. They do not decide issues when it’s unnecessary; however, the court did make it clear that these issues are not frivolous, but they will have to wait for another day.

It is not known at this point if the state will appeal. Generally speaking, the odds are good that they will because they are hard wired to appeal every finding that a statute is unconstitutional. There is a slim chance that they may not in this particular case because the controlling precedent in the Sixth Circuit will be difficult for them to overcome, and they will have to be really creative to distinguish Tennessee’s registry from Michigan’s. There was a recent decision from the Sixth Circuit that held there is an independent duty under federal law to register.

Opinion Released 12-28-20

By Larry . . . This appeal was handled by Janice Bellucci, an attorney in California, who is well known for her work on behalf of those required to register. The case arises as a result of a ballot proposition approved by California voters in 2016. Proposition 57, known as the Public Safety and Rehabilitation Act of 2016, amended the California Constitution to provide that any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. The initiative also directed the California Department of Corrections and Rehabilitation, hereinafter referenced as “CDCR,” to “adopt regulations in furtherance of these provisions” and instructed the secretary of the CDCR to “certify that these regulations protect and enhance public safety.” Opinion at p. 1.

The CDCR adopted regulations implementing a nonviolent offender parole consideration process. Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act.” The CDCR contended that it is authorized to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.

The challenge was brought by Gregory Gadlin. Gadlin was convicted in 2007 of assault with a deadly weapon. The jury sustained allegations that Gadlin had previously been convicted of two serious felonies.  Gadlin had a 1984 conviction for forcible rape and a 1986 conviction for forcible child molestation. Both prior convictions require registration under the Sex Offender Registration Act. Following his conviction in 2007, Gadlin was sentenced to a total prison term of 35 years to life, consisting of 25 years to life for assault with a deadly weapon under the “Three Strikes” law. After the voters approved Proposition 57, Gadlin filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court. The petition challenged the CDCR’s determination that he did not qualify for nonviolent offender parole consideration, and specifically challenged the provision of the regulations excluding from nonviolent offender parole consideration inmates like himself who had been convicted under the Three Strikes law. Not surprisingly, the trial court denied the petition, finding that the then-applicable regulations properly excluded inmates serving third strike sentences from eligibility for nonviolent offender parole consideration. Gadlin appealed the decision to the California Court of Appeal. The appellate court held that the amended regulations improperly excluded him from nonviolent offender parole consideration based on his two prior sex offense convictions. See In re Gadlin, 243 Cal.Rptr.3d 331, 31 Cal.App.5th 784. Looking to the language of the constitutional provision, the appellate court determined that the reference to “convicted” and “sentenced” in conjunction with present eligibility for parole once a full term is completed makes it clear that early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history.

The California Supreme Court concluded that this categorical exclusion conflicts with the constitutional directive that inmates “. . . convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art.  I,§ 32(a)(1).) The Court emphasized that this determination does not require the release on parole of any inmate. The evaluation of an inmate’s suitability for parole and the processes involved in conducting that evaluation remain squarely within the purview of the CDCR and the Board of Parole Hearings.

The court held that nonviolent offender parole eligibility must be based on an inmate’s current conviction, and that an inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have defined as nonviolent. Opinion at 40.

SUMMARY OF THE DECISION

The appeals court reversed in part and affirmed in part the district court’s dismissal of an action alleging that the retroactive application of Idaho’s Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301, et seq., is unconstitutional. For the sake of limiting the length of this analysis, we are omitting discussion regarding the dismissed claims which were upheld by the appeals court. The appeals court held that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. Specifically, the appeals court held that the district court erred by (1) construing appellants’ ex post facto claim as an as-applied challenge; (2) applying the “clearest proof” standard at the motion to dismiss stage; and (3) finding the outcome of the Smith v. Doe, 538 U.S. 84 (2003) factors analysis to be controlled by precedent. The appeals court held that to survive a motion to dismiss, appellants only had to plausibly allege that the amended SORA, on its face, was punitive in effect and case law did not foreclose a finding that SORA was punitive.

HISTORY OF SORA

The state of Idaho began requiring sex offender registration in July 1993. It initially imposed only a duty for persons convicted of certain felony sex crimes to register with their local sheriff. In 1998, Idaho passed SORA, imposing the more expansive framework still in place today, designed to create public access to information about persons convicted of sexual offenses. In addition to creating a central registry of public sex offender information, SORA expanded the category of offenders required to register, codifying a catalog of eligible offenses in Idaho Code § 18-8304. The 1998 version of SORA required all registrants to undergo a “psychosexual evaluation.” Registrants convicted of a subcategory of offenses, listed in Idaho Code § 18-8312, and found to pose such a risk based on their evaluation, were deemed “violent sexual predators.” All registrants, except for violent sexual predators, were eligible to petition the district court for a show cause hearing to determine whether the person could be exempted from the registration requirements and its obligations after a ten-year period of registration. The 1998 act was applied retroactively to any person convicted of a newly-eligible offense after July 1, 1993. The act was also applied retroactively to anyone who entered the state of Idaho after July 1, 1993, who had been convicted of any crime that was “substantially equivalent” to the act’s listed offenses.

As what has been the practice in most states, the Idaho legislature did not stop heaping on requirements after the 1998 amendments. They amended again in SORA 2001, 2002, 2004, 2005, 2006, 2008, 2009, 2010, 2011, 2012, and 2013. Each set of amendments was applied retroactively in the same manner as the 1998 act. In general, these amendments expanded SORA’s framework, adding to the list of eligible offenses and heightening the obligations of registration. Opinion at 8. SORA was significantly changed in 2011. As in prior years, new offenses were added to the list of crimes requiring registration. There was also a significant increase in the amount of information required at registration and a decrease in the amount of time provided to comply. Additionally, registrants were newly required to provide advance notice of any travel lasting longer than seven days and to provide in-person notice of their presence to law enforcement in the jurisdictions they travel to. Opinion at 8.

MORE DETAILED ANALYSIS

We are focusing this analysis on the three most significant aspects of the appeals court’s decision. The appeals court held: (1) the district court erred in construing Appellants’ ex post facto claim as an as-applied challenge; and (2) it erred by applying the “clearest proof” standard at the motion to dismiss stage; and (3) it erred in finding the outcome of the Smith factors analysis controlled by precedent.

First, in Seling v. Young, 531 U.S. 250 (2001), the Supreme Court held that ex post facto claims based on the punitive effect of purportedly civil statutes cannot be construed as “as-applied” challenges.  Id. at 263–65; Young v. Weston, 344 F.3d 973, 976 (9th Cir. 2003). Rather, courts must evaluate a law’s punitive effect based on a variety of factors—such as the terms of the statute, the obligations it imposes, and the practical and foreseeable consequences of those obligations—in relation to the statute on its face. See Seling, 531 U.S. at 262; Young, 344 F.3d at 976. Opinion at 12.

Second, the “clearest proof” standard refers to a plaintiff’s ultimate burden to sustain an ex post facto challenge. When a statute is expressly civil in intent, the Supreme Court has stated that only the clearest proof is sufficient to override the legislature’s intent and render the putatively civil regulation a criminal penalty.  Smith, 538 U.S. at 92. To survive a motion to dismiss, however, Appellants only had to plausibly allege that the amended SORA, on its face, is punitive in effect. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Daniel v. Fulwood, 766 F.3d 57, 61–62 (D.C. Cir. 2014) (“At the motion to dismiss stage, of course, a plaintiff need only show that his ex post facto claim—like any other claim—is ‘plausible.’ ”).

The appellate court noted that, “Accepting the allegations in the First Amended Complaint as true, all Appellants are retroactively subject to lifetime registration terms. By the SORA amendments, Idaho has retroactively imposed—in addition to heightened registration obligations—restrictions on housing, employment, and travel. Registrants are prohibited from being on or within 500 feet of school grounds when children under the age of eighteen are present, with some exceptions. The same restriction applies to where registrants may reside. Registrants now must provide notice to law enforcement both before and during certain kinds of travel…” Opinion at 13.

Third, the appellate court explained the reason why Smith v. Doe is not controlling precedent. It appears that they have found the case of Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) to be persuasive. The Snyder court explained their reasoning why Smith was not controlling in their decision. They Snyder court held that, “A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.” Does v. Snyder, 834 F.3d at 705.

This case will be returned to the district court for further proceedings, which may include a trial on the remaining issues. Due to the volume of litigants and complexity of all the issues, this case is likely to drag out for years. In the end, NARSOL is hopeful that the case will result in a favorable outcome.

The discussion of this decision and this issue on the Registry Matters podcast with Larry and Andy can be heard here.