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National

MD: Maryland High court rules sex offender registration qualifies as ‘punishment’

[By Guy Hamilton-Smith, an ACSOL board member, a 2019 JustLeadershipUSA fellow, and a contributor to The Appeal and Slate. You can read more of his writing on his website]

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.

Download opinion PDF:

Maryland-Court-of-Appeals-Opinion Sept 2019

Join the discussion

  1. CA cool RC

    so is this the 2nd State to rule that this is punishment?

  2. SR

    So if this is ultimately upheld by SCOTUS, what does that mean overall? Could people still be forced to register post completion of their sentence?

  3. Saddles

    I’m sure we all have to agree with the punishment issues in this double faced unconstutional type ordeal. The judge in this effort does see fit to understand this plight that many face. Yes my hats off to Maryland for this verdict and for adressing it. And yes the sex offender is looking for closure.

    The registry is black and white to many and is punitiv in many ways. Sure you did talk about electronic pillory and that could be even anything electronic such as radio influence. Even this registry holds a black streck of gloom and doom to some.

    One may even be sure a broadcast of the War of the World back in 1938 brought panic in a different prospective and was a bit of kayos back in the day. I’m sure this news is inspiring to many as I hope we can see the end of the registry on many of these types of issues or ordeals one has to undertake.

  4. steve

    That’s huge! There is hope.

  5. David

    I love it when a high court uses “the P-word”!! 🤗

  6. Jack

    Seems judge matsch’s reasoning is spreading. Slowly of course but surely.

    • David

      @ Jack: Forgive this dark reference, but I hope Judge Matsch’s reasoning spreads faster than COVID-19!! 👍

      (Many judges desperately NEED a serious attack of Common Sense!!!)

  7. New Person

    ****
    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.
    ****

    Couldn’t any state that puts any statutory sex offense onto the registry use this Aprrendi v New Jersey case law?

    Also, I recall many years ago that a local newspaper in CA printed where sex offenders lived in a certain part of the city. The next time they shared a map it was show another part of the city. That’s broadcasting the registry as opposed to be available to the public. I wished I would have kept those papers as evidence.

  8. M C

    @SR,

    This is a state case so the SCOTUS would not be involved as what is unconstitutional at a state level determined by it’s highest court. State decisions are final for that state and irrelevant to SCOTUS on a federal level.

    • TS

      @M C

      I believe SCOTUS would note state relevant cases though if presented at the federal level to show patterns of rulings in the topic in addition to Fed rulings. CJ Roberts may even read how his AK case was referred to.

      This is now several states to rule this way, e.g. CO (Fed), MD, PA…

    • Janice Bellucci

      @MC – I respectfully disagree with your statement that “state decisions are final for that state and irrelevant to SCOTUS on a federal level.” The fact is one way to attract the attention of SCOTUS on a topic, such as registration, is to have different decisions issued by several state supreme courts. SCOTUS also pays attention when there are different decisions on the same topic issued by several federal Circuit Courts of Appeal (such as 6th Circuit in Does v. Snyder). Decisions like this decision, issued by a state supreme court, help us to get closer to SCOTUS and an admission that registration is punishment.

      • New Person

        Janice, thank you for identifying that conflicting judgments will force the SCOTUS to review this matter.

        BTW, Isn’t this the third state to rule against the registry?

        Michigan (Does v Snyder)
        Pa
        Maryland

        Didn’t Pa also rule that the registry was unconstitutional or is that still underway? BTW, Maryland did find a way to get around the registry due to its constitution, but this latest judgement has me taken aback and didn’t even see it coming.

        What is an ideal way to create a similar conflict within Ca court system?

      • M C

        @Janice, i don’t really mean it’s irrelevant in that way and I think I kind of clarified it after TS response. It’s certainly relevant in getting closer to an admission that registration is punishment as you state. My point was meant to be that this specific case in particular wouldn’t go to SCOTUS for review as it’s my understanding there wouldn’t be a way for the state to appeal it to a federal court. In that way the states highest court is the final decision on the matter. It doesn’t stop it’s usefulness or role or would have in federal cases in the future and it’s ability to increase the likely hood the supreme court would revisit the Smith v Doe decision due to there being different decisions on the same topic.

        • E

          If there is a federal constitutional question, the SCOTUS can and does overrule state supreme courts.
          http://media.okstate.edu/faculty/jsenat/jb3163/supremecourt.html

        • M C

          @E, agreed however in this case you would be asking the SCOTUS to overturn a state courts final interpretation of what is or isn’t punishment based on a state statute. Doing this would, at least in my opinion effect the states right of it’s judiciary to interpret it’s own law as it would like to. As long as such a decision itself does not create a situation whereby it continues to effect ones constitutional rights I don’t see the Supreme Court getting into considering a reversal of this MD court interpretation. What I forsee is that this ruling adds ammunition to a supreme court challenge when the ruling goes the other way elsewhere.

  9. Saddles

    MC I never understood SCOTUS why that bunch went snorkeling in the muddy water. In fact I’m sure one wonders why any some judges want to play pinball wizzard of Oz or for that matter officials of the county.

  10. David

    @ Saddles: Huh?? 🙁

  11. Saddles

    Dave Here in the Shenandoah Valley of Virginia we don’t see that much problem as big city’s. I’m just glad one can reason on this good or bad issues aside from this virus ordeal. Even TS said there is alway a silver lining to every dark cloud.

    One might even tend to think people are out in their yards chopping wood for exercise or to burn down capital hill…. I shouldn’t say that.

  12. Saddles

    Dave one even wonders if one has free speech today. Take a look at that church holding a service in the mist of this stay at home quarinteen. Who is the guilty one in that situation.

  13. Eli

    with this virus going on, how are we suppose to work at home if we are limited on what sites to goto or worse completely banned using a computer? How is it not a punishment when you are applying for a job and your application gets denied due to background check. :/

  14. David

    @ Eli: It’s similar to the way that POS Chris Smith of N.J. wrote the International Megan’s Law. Our U.S. government does not, itself, stop us from traveling internationally…… they just place “unique identifiers” on our passports and send out special “green” notices so the countries we traveled to will refuse to let us enter.

  15. Don

    I never thought I’d say this, but: Only 20 years [i.e. better then lifetime]? Thankfully the Petitioner won.

    However, I’m sure the government will come up with a new scheme to buy more time and screw people in the meanwhile. It’s all a game for them. Enter risk assessment instruments (RAI) like the Static99R and other forms of snake oil that the politicians love. “Oh you’re so-called ‘high risk?’ Lifetime registration, no questions asked. Forget about the fact we’re basing your risk on questionable pseudoscience. But maybe, just maybe you will get the chance to petition off in 20 years IF the DA, DOJ, LE and judge agree.”

    Yeah right!!!

  16. Dustin

    A question that will likely come up:

    When the registry is eventually and properly considered punitive, will states be allowed to require registration to those whose crimes were committed in other states? I would think not. A state imposing a criminal penalty for conduct committed outside that state has never seen the inside of a courtroom that I’m aware of.

    For example, a person in Georgia is convicted for a misdemeanor is fined the $1000 maximum. After the sentence is served and the fine paid, he moves to Texas, where misdemeanors are fined up to $4000 maximum. By the “conduct in another state that would be a crime in this state” reasoning, Texas would require the person pay another $3000 for his crime in Georgia. The idea is simply insane, but I wouldn’t be surprised if some DA somewhere tried it.

    State registration laws containing phrases like “convicted of a crime in another state that is similar to laws in this state” or “conduct in another state that would be a crime in this state” are common and (presumably, though very questionably) legal because most states consider the registry a civil administrative procedure. But if punitive, I would think that such provisions couldn’t stand.

    Am I wrong about this? Comments, thoughts?

    • TS

      Recognizing a conviction is one thing but to add more punishment to meet the new state’s law is another. Probably unconstitutional too. @AJ may know.

      Would they do this for DUI when one gets a new license in a new state?

    • M C

      If it’s punitive it would violate due process rights.

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