Maryland Court of Appeals Strikes Retroactive Sex Offender Registration

In John Doe v. Department of Public Safety and Correctional Services, issued March 4, 2013, Maryland’s Court of Appeals strikes down one of the most controversial components of the Sex Offender Registration Statute.

Maryland’s highest court, in a stunning rebuke, overturned the retroactive application of its Sex Offender Registration Statute.  The decision in large part is based upon a broadening of the Court’s interpretation of Article 17 of the Maryland Declaration of Rights, which prohibits the imposition of ex post facto laws.

In so doing, Maryland joins Alaska, Indiana, and Ohio in finding that requiring registration for sex crimes committed prior to the enactment of the sex offender registration statute is unconstitutional.

The prohibition against ex post facto laws essentially means that the Maryland’s Constitution specifically forbids punishment of acts committed in the past whose conduct is subsequently declared criminal.

The petitioner, John Doe, was a junior high school teacher who during the 1983-84 school year had inappropriate sexual contact with a thirteen-year old student.  Approximately 20 years after the incident, the student contacted the law enforcement and in 2005, the former teacher was charged with various sex related offences.

In 2006, a binding plea agreement was reached in which, among other things, the former teacher pled guilty to a single count of child sex abuse.  The binding plea agreement called for a period of incarceration and supervised probation upon release but did not address registration as a sex offender.

During the time period that the crime was committed, there was no sex offender registration law.

The first sex offender registration statute was enacted in 1995 and was applied prospectively.  However, in future amendments to the statute, notably in 2001 and again in 2009 a much larger net of mandated registration came into existence.  The amendments required individuals convicted of committing sex crimes prior to its enactment to register of sex offenders.

One of the most important points raised in the John Doe decision is the Court’s reliance solely upon Maryland law.  The Court noted, “[w]e conclude. . . that requiring Petitioner to register as a sex offender violates Article 17’s prohibition against ex post facto laws; thus, we need not, and do not, address whether requiring Petitioner to register violates the prohibition against ex post facto laws under Article 1 of the federal Constitution.”

Among the considerations given in the decision were the principles of fundamental fairness and the right to fair warning, which the Court observed, is embodied in Article 17.  The Court noted the petitioner would have no way of knowing that his conduct, no matter how reprehensible would later lead to mandated registration.

A significant recognition in the Court’s decision was that the sex offender registration statute is a form of punishment imposing, “significant affirmative obligations and a severe stigma on every person to whom it applies”.

Another important aspect of the ruling is that Maryland applies the prohibition against ex post facto laws more broadly than under Federal law.  Under Maryland law, the analysis examines whether a statute that has been retroactively applied, has disadvantaged an individual.  Under Federal interpretation, an individual must show that the characterization of the crime has been altered.

A compelling observation in this decision is that the Court of Appeals clearly has held that required registration as a sex offender is a form of punishment, an opinion which is in direct opposition to recent decision by the U.S Supreme Court.

If you have been unfairly required to retroactively register in Maryland due to the new laws enacted in 2009 and 2010 and are in need of a sex crime lawyer, please contact our office to schedule an immediate consultation. Attorneys Gary H. Gerstenfield and Rebecca Cosca are experienced litigators in sex crimes defense, and will fight to remove you from the registry.