UPDATE 2-15-2011: Corrected Ohio references, it does have a ex post facto clause, in a different section of its constitution.1-13-2011 National:
Given the recent opposition of states to enact into their state laws, the Adam Walsh Act (SORNA Title), one wonders if there is a conflict with respect to state ex post facto clauses. In other words, "Can a State Constitution's Ex Post Facto Clause PREVENT a State from enacting the Adam Walsh Act's Retroactive requirement?"
After reviewing all state constitutions and enacting laws of U.S. Territories who are subject to SORNA, I've found some very interesting things that should be mentioned. I am bypassing consideration of any Tribal laws, sources are most difficult to find and may even delve into traditional beliefs rather than actual law. I'll leave that for some scholar in their spare time. Further, according to this news article "There are a total of 248 Sex Offender Registration Jurisdictions." which means there are some 198 Tribal laws to also be amended.
STATE EX POST FACTO CLAUSES: Generally in state constitutions: "No ex post facto law shall [ever] be enacted," some include "ever." Yet, other State Constitutions have wording that may go farther, or are subject to interpretation, they are:
|Maryland||Art. 17. That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.||Colorado||Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.||Massachusetts||Article XXIV. Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.||Missouri||Section 13. Ex post facto laws—impairment of contracts—irrevocable privileges.—That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.||Ohio||§ 2.28 Retroactive laws: The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.||Tennessee||11. Ex post facto laws: That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.||New Hampshire||[Art.] 23. [Retrospective Laws Prohibited.] Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses.|
Of these ex post facto clauses, New Hampshire is the only one that covers both, civil and criminal laws. Remember, courts are ruling AWA is regulatory (civil) and not criminal. But, unfortunately, NH's version does not say "shall be made" it says "should be made" and I can see some judge playing with that distinction based on public safety. And, it will be interesting to see what happens when these states make changes according to SORNA and see how they dance around their ex post facto clauses.
STATES WITHOUT EX POST FACTO CLAUSES: There are six states that do not have a "ex post facto clause" in their state constitution. They are Delaware, Connecticut, Kansas, New York, Vermont and Hawaii. I will assume the Virgin Islands has none as well since I could not find their enacting laws.
The SMART Office has said -as of 1-1-2011- that, four states are in compliance with SORNA, Delaware, Ohio, Florida and South Dakota. And of those four one has no ex post facto clauses: Delaware.
So how do we explain Florida and South Dakota being declared in compliance? We don't but I would look to those states for the next lawsuit based on their State ex post facto clauses. However, their case law may stop such lawsuits, someone will have to look into that aspect.
DEFINE EX POST FACTO VIOLATION: Lets start with these definitions:
A misnomer in that actually two Constitutional clauses are involved. The U.S. Constitution's Article 1 Section 9, C.3 states: 'No Bill of Attainder or ex post facto Law shall be passed,' and Section 10 says: 'No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law. . . .'
The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).
Quote from Calder: "I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender."
: a criminal or penal statute that imposes a punishment for an act not punishable when committed, or alters to the defendant's disadvantage the punishment prescribed at the time of the act, or takes away from the substantial protection afforded the defendant by the then existing law; also : a civil or criminal law enacted with a retrospective effect.
"Changes the punishment" has been the cry, but look closer at the four points from Calder -v- Bull. Maybe the courts have lost the subtle four by only thinking, or being directed by a State Attorney General, to "changes the punishment." I challenge everyone to study those four points and look again at the FACTS of cases which courts have said, there is no ex post facto violation. Maybe lawyers also need to study AWA and present cases slightly differently?
IS THE ADAM WALSH ACT AN EX POST FACTO LAW? Despite what you read and hear around the Internet, AWA -SORNA Title- is NOT a ex post facto law (EPF)! If SORNA was a EPF law, courts would have issued an injunction to stop its operation 100%, and no one would have to follow it.
SORNA is a federal law, and using Guidelines, SORNA directs State lawmakers to conform state registration laws to the requirements of SORNA. But, we must remember those Guidelines have no force of law, in other words, states can simply ignore them and make no changes. I'm skipping SORNA twisting state arms if they do not make changes, that for another day. i.e., 10% reduction of Federal Byrne Grant Funding.
So, using the Federal Guidelines state lawmakers make changes to their state registry laws. Now, in order to run into a state ex post facto violation, some change made by state lawmakers, has to violate the state Constitution's ex post facto clause. Mere belief that a law is a ex post facto violation will not make it so, facts of a case, applied to the new law must show the violation.
Example: State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Ohio changed its classification system to one required by SORNA. SORNA merely assigns a tier to a registrant based on the crime they committed years ago. Ohio assigned its State Attorney General's office (the Executive branch of government) to make these changes under a new state law which resulted from the federal guidelines. The problem that caused is, prior to the new law (actually two laws), all classifications (tier assignments) were done by Judges in a hearing (the Judicial branch of government).The Adam Walsh Act was not held to be a ex post facto law by Ohio's Supreme court. Right now I cannot think of another situation where, SORNA required a state to do something, and the state did it, and a case took that action to court like in Ohio, and the state supreme court handed down a decision saying the state's ex post facto clause was violated.
After many Ohio registrants took the State to court, the court issued a decision but it did not say, the new law was a violation of the state's ex post facto clause! WHY? Instead, the court said, the two new laws violated constitutional separations of powers requirement.
Now, what the court effectively said, is, that judicial decisions cannot be undone by a different branch of government. i.e., The State Attorney General's office action had to be reversed. However, not every registrant classified by the AG had to be reversed, only those whose prior classification were done by a judge, before the date of the two new laws.
In essence, the Ohio Supreme court upheld the principle of "ex post facto" and upheld the new law that flowed from SORNA as to those AG classifications done after the date of enactment of the new law.
Yes, there are cases still in courts and maybe have raised similar issues, but as of right now, those courts have not rendered decisions. When they do, if it relates to the state's ex post facto clause, I will return to this paper. If anyone knows of such a case, I'd love to review it and post it here.
For now, have a great day and a better tomorrow.
All court decisions are now posted in our "Sex Offender Court Decisions" blog.
Case Listing from the Ohio Office of Public Defenders
NOTE: Each state is linked to a legal source (U.S. Supreme court source Justia) for that state's constitution, or, where the Justia's link was no longer active, a source from a URL that was under that state's control. The idea was to link only to official or reliable sources. Please see "Legends in Chart" following the chart.Legends in Chart:
(@@) Means no source law existed to check;
(**) Means there was something unusual about the wording with respect to their ex post facto clause;
(#) Means, the source is a state URL and not the U.S. Supreme court case law site Justia site;
(No EPF) Means that state has no ex post facto clause in their state constitution;
Alabama (1875 Const) The most recent Alabama Const. is 1901, but for unknown reasons it simply does not exist on the Internet, and apparently others have tried to obtain copies as well, all have failed. Accordingly, I have resorted to using the 1875 Constitution.