The Maryland Court of Appeals — Maryland’s highest court — issued an opinion this week that, effectively, calls a spade a spade: that being listed on a sex offense registry constitutes punishment. In Rogers v. State, the appellant had been convicted of a crime that would require registration if the victim was a minor. However, the age of the victim was not an element of the offense to which the appellant pleaded guilty, nor was the age of the victim established in the plea agreement. Subsequent to the appellant’s guilty plea, state authorities required that he register as a sex offender. The appellant complied with the state’s demand, but also filed a lawsuit asking the courts to declare that he was not required to register as a sex offender and to remove him from the registry.
Who wins depends entirely on whether or not the registry is punishment. In a completely separate case from twenty years ago, the United States Supreme Court held in Apprendi v. New Jersey that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In this case, if the registry is punishment, and the age of the victim determines whether or not an individual must register, then it is a “fact that increases the penalty” and thus must be proven beyond a reasonable doubt at trial (or stipulated to in a guilty plea), as opposed to state police making their own determinations as to whether or not someone must register.
The opinion analyzes at length the history of Maryland’s sex offense registry statute—and its present form—and concludes that it is clearly punishment: frequent in-person reporting requirements, the compelled disclosure of enormous amounts of personal information, the broad public availability of that same information over the Internet which “expose[s] sex offenders to ostracism, and may cause lost employment opportunities, housing discrimination, threats, and violence,” and the similarity to the historical punishment of shaming all factored into the Court’s decision. The Court even noted that, at least at some point, members of the public had been allowed to post comments on individual registrant’s pages which would then be viewable to the public — thus transforming Maryland’s registry into something not unlike from an electronic pillory.
The ultimate conclusion that the Court reached was that, because of the punitive evolution of Maryland’s registry, any fact that would require registration must be proven beyond a reasonable doubt in line with Apprendi. While it was certainly not the Court’s role here to make a determination about whether or not registries are good policy, or effective at their stated aims, it it heartening when any court is willing to tell the truth even—and perhaps especially—when it is an unpopular one.
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