Sex Offender Registration

• Jurisdiction: Maryland

XV. Sex offender registration

A. Sex offender registration is part of the sentence and the ex post facto clauses prohibit retroactive application

Sex offender registries came about in the mid-1990s. Originally, the statutory requirement to register as a sex offender was not considered part of the sentence. It was considered a mere regulatory requirement to provide the public with notice of who sex offenders are and where they live. See Young v. State, 370 Md. 686, 716 (2002). In Sweet v. State, 371 Md. 1, 8-9 (2002), the Court of Appeals held that, because registration was not part of the sentence, there was no constitutional requirement for the jury to make any finding, including a requirement to find that the defendant poses a risk of committing future sexual offenses as a predicate to sex offender registration. See also Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003).

In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535 (2013), the Court of Appeals held that the requirement to register as a sexual offender is part of the defendant's sentence, and it is not merely a collateral consequence. Legislatures, having previously assumed that the sex offender registration was merely a collateral consequence, often made the registration requirements more onerous and applied them retroactively.

Because Maryland now considers sex offender registration to be punishment, when the legislature creates new registration requirements that are both (1) more onerous, and (2) apply retroactively, the legislation is ex post facto by retroactively applying more onerous sentencing to defendants whose conduct pre-dates the new registration requirements.

In Doe, the defendant was convicted in 2006 of child sexual abuse for an incident that took place while he was a teacher during the 1983-84 school year. See 430 Md. at 538. In 2009 and 2010, the Maryland General Assembly amended the registration law and required registration of child sex offenders who committed offenses before 1995 but were convicted after 1995, who had not previously been required to register. Id at 540-41. Under the new law, the defendant was required to register as a child sex offender for life. Id. In Doe, a three-judge plurality held that the retroactive registration requirement violated Md. Decl. of Rights art. 17, which prohibits ex post facto laws. Id. at 553. The Court held:

Based on principles of fundamental fairness and the right to fair warning within the meaning of Article 17, retrospective application of the sex offender registration statute to [the defendant] is unconstitutional. [] . . . [The defendant] committed his sex offense during the 1983-84 school year. The Maryland sex offender registration statute did not go into effect until a decade later in 1995. As a result of the 2009 and 2010 amendments to the statute, the registration requirements were applied retroactively to [the defendant]. He could not have had fair warning that he would be required to register. In fact, during the 2010 trial court proceedings in the present case, the

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