A Raw Deal:  The Unconstitutionality of Florida's Sex Offender Registry Laws When Applied To People Whose Crimes Occurred Before the Law Was Passed

For People Convicted Of Sex Crimes Committed Prior to October 1, 1997, Florida Law Retroactively Enhances  Punishment

  In October of 1997, Florida's version of the sex offender registry laws began to take effect.  Florida has since became one of the most restrictive states in the country with regard to sex offenders.  Florida statute 943.0435 provides that anyone who has been convicted of one or more of the sexually motivated offenses enumerated in the statute and who completed their term of probation, incarceration, parole or other sanctions after October 1, 1997 is required to register as a sex offender and be subject to all of the various conditions associated with being a convicted sex offender in Florida.  There are too many problems with Florida's sex offender registry laws to properly address all of them in one article, so this article is narrowly focused upon the Constitutional ex post facto related issues created by retroactively applying the sex offender registration statute to people whose crimes were committed before the laws were even on the books.  This is problematic because the United States Constitution prohibits ex post facto laws.  Ex post fact laws are laws that punish retroactively by criminalizing conduct that was legal when committed or by enhancing the penalties for crimes after they have been committed.  It would appear to the legal layman that Florida's sex offender registry laws are a blatant ex post facto violation because clearly the punishment for the crime has been enhanced after the crimes have been committed for sex offenders in Florida.  This unfortunately is not the position that the courts have taken.   In the course of seeking to address this issue, I have personally spoken to hundreds of individuals who are required to register as sex offenders in Florida and whose crimes occurred prior to October of 1997 and the one theme which arises most often is the fact that theses people are subject to a lifetime sentence which they did not agree to or bargain for. 

People Who Resolved Their Cases Via Negotiated Resolutions Were Not Made Aware of the Consequences

  The vast majority of criminal cases in Florida resolve by way of a negotiated resolution.  A very low percentage of cases end up going to trial in Florida because if the charges are very weak, then often the State Attorney's Office will voluntarily drop the charges and if the defense is weak or if the maximum sentence following a conviction at trial is great, then it is usually going to be in the defendant's best interest to seek a negotiated resolution which involves imposition of a lesser sentence than that which the defendant could face from the court if he or she was to be convicted by a jury after a trial.  Herein lays the problem in that individuals who are facing sex offenses in Florida are often faced with the prospect of a lengthy prison sentence as the maximum sanction.  Prior to October 1, 1997 many people who were charged with sex crimes in Florida chose to resolve their criminal cases  via a negotiated plea much in part to that fact.  Many individuals who I have spoken to were offered a withhold of adjudication by either the State Attorney or the Judge in their cases along with a short probation sentence and they accepted the plea offer because given the knowledge that both they and their attorneys were aware of at the time, it seemed to be in their best interests.  People often chose to resolve their sex offense cases to relatively minor penalties rather than run the risk and expense associated with going forward with a jury trial where they could have been facing many years in prison  in they were convicted.  Without exception, the individuals required to register as sex offenders in Florida who I have spoken to who resolved their cases via a negotiated resolution prior to October 1, 1997 would have made a different decision had they been aware of the consequences.  No one who resolved their case via a negotiated resolution would have agreed to sign themselves up for what essentially amounts to a lifetime of sex offender probation had they been made aware that that is what they were signing up for by accepting a negotiated resolution to a sex offense.  

Both the Florida State Courts as Well as the 11th Federal Circuit are Following What is Slowly Becoming Recognized as An Outdated Method of Evaluating Ex Post Facto Claims

  Florida courts follow the legal approach enunciated by the United States Supreme Court in the seminal case on the issue, Smith v. Doe  which was a challenge to Alaska's sex offender registry laws that was decided by the court in 2003. While the logic set forth by the Court in reaching its decision 16 years ago may have possibly been a correct characterization of the sex offender registry laws at the time that the case was decided, the fact of the matter is that the laws have changed dramatically in the past 16 years and more and more state and federal courts throughout the country are beginning to recognize this.  There has been a substantial change in circumstances regarding the laws upon which the Smith decision was decided and it is time that the issue is revisited by the state and federal courts.   The Smith case was decided based upon the laws as they existed 16 years ago.  The change in circumstances has occurred in that the laws themselves have changed dramatically in Florida over the course of the last 16 years.  In Florida people who are required to register as sex offenders are provided with a list of obligation that they must comply with when they are required to report.  Failing to report as directed is a 3rd degree felony for which an individual may face up to 5 years in prison,  In addition to that, there is an ever growing list of obligations placed upon a person who is required to register as a sex offender in Florida.  There are at least 25 separate obligations placed upon sex offenders in Florida and this number is ever growing.  Additional obligations are added to the list of obligations frequently and a failure to comply with any of these obligations by the offender is punishable as either a 2nd or 3rd degree felony which means that an individual could face between 5 and 15 years in state prison for failing to strictly comply with the registry law.  A facet of the Florida law that is quite interesting is the fact that even though Florida is still following the law set forth in the United States Supreme Court case of Smith v. Doe which upheld the Alaska sex offender registry law, the Alaska Supreme court later struck down the very same law on ex post facto grounds based upon the fact that the the law was violative of the Alaska State Constitution.  Alaska no longer applies its sex offender registry laws retroactively but Florida still does.  

Is the sex offender registry punishment to the individual who is required to register?

   Now without addressing the utility or effectiveness of the registry laws themselves, the issue that is problematic is that the Smith case was based upon the Supreme Court concluding that Alaska's sex offender registry laws were not punishment.  The court reasoned that because the sex offender registry laws do not meet the definition of "punishment", then the ex post facto clause of the Constitution is inapplicable, thus freeing the states to apply their respective sex offender registry laws retroactively to apply to individuals who were convicted of sexually motivated offenses even before the registry laws were ever passed or even thought of for that matter.    The problem which this article seeks to address is the fact that the Florida legislature has essentially painted themselves into a corner with regard to the Constitutionality of retroactively applying its sex offender laws because as they have lopped on more and more restrictions with more and more enhanced penalties.  This has made it very difficult to plausibly take the position that Florida's sex offender registry requirements do not constitute "punishment" pursuant to a legal definition.  When evaluating whether a law is punitive in nature, a court is required to evaluate whether the law is punitive in either its intended purpose of effect.  See Smith  

  Given the enormous burdens placed upon sex offenders in Florida coupled with the social and professional stigma that come along with being required to register, it absolutely defies all logic and sense that those laws could be viewed as non-penal in nature.  As a criminal defense lawyer, I have not come across one single person who is required to register in Florida would agree with the characterization of sex offender laws as non-penal.  However, despite this inevitable common sense conclusion that the sex offender laws are punishment in their effect, the approach of the Florida courts has been to retroactively apply the laws to people whose crimes occurred before the laws were written because as far as the courts are concerned the registry laws do not punish.  The view of the Florida courts in keeping with United States Supreme Court precedent is that the sex offender registration laws are non-punitive civil regulations.  From the time that Smith was decided in 2003 until 2016, every challenge to the sex offender registry laws based upon the ex post facto clause was dismissed by the federal courts based upon the finding that the laws were non-punitive both in purpose and effect.  

   This view that the sex offender registry laws are not punitive in effect completely turns a blind eye to the realities of being a registered sex offender in Florida.  If a person is convicted of or has adjudication withheld to a sexually motivated crime in Florida then that means that they are required to register for life.  That means that for the rest of their life, even long after they completed their sentence, their name, address and picture will be on the Florida Department of Law Enforcement website.  Individuals are required to report in person either twice or four times a year depending on their level off supervision.  The police go to sex offender's homes and bang on their doors at all hours of the night in order to make sure that they are residing at the same address that they have listed with the registry.  Sex offenders are often relegated to low income hourly jobs so it is often difficult and burdensome for them to be able to take time away from work in order to fulfill those registration requirements.  If a person on the registry stays at another address for even a short time, then they are required to list that address with the police and then that address is also made available to the public as a location where a sex offender lives.   This causes an enormous burden on individuals who have family or friends that they would like to visit.  Just by visiting the friend or family member , they have caused that family member's address to become known as an address where a sex offender lives even if they were only there for a few nights.  This can actually lead to the family member being evicted from their home if they live in a development which does not allow sex offender.  Housing is one of the most difficult issues which people who are required to register as sex offenders in Florida are forced to deal with.  The housing options available to a person on the sex offender registry are very limited.  They are often forced to live in dirty motels and a startling percentage of sex offenders in Florida are homeless.  Many sex offenders have actually chosen homelessness over dealing with the burdens entailed in procuring housing and complying with the onerous address registration requirements.   Registered sex offenders have very limited employment opportunities available to them in Florida.  Many professional licenses can not even be applied for by a person on the registry.  Many areas of employment are off limits to sex offenders and most employers simply will not hire a sex offender.  People whose names are on the sex offender registry in Florida live in constant fear.   Some people who are required to register as sex offenders are afraid to leave their homes.  Many have had to seek professional counseling and treatment for the enormous anxiety that comes with always having to wear a scarlet letter.  Registered sex offenders driver's licenses have a notation on them designating that the driver is on the registry.  This informs anyone looking at a person's driver's license that the holder is a sex offender.  Individuals have been denied entry into theme parks with their families because of this notation.  The mark on the driver's license absolutely sets people up for "special" treatment by the police whenever they happen to encounter law enforcement in for instance a roadside stop situation.  Being a registered sex offender can make travelling very difficult and burdensome.  Individuals who are required to register as sex offenders in Florida are required to check in with law enforcement when they leave and when they return and they are required to notify law enforcement of their presence in the place that they are visiting.  In addition to this, sex offenders are often taken aside and questioned at airports and ports of entry making travel much more burdensome and stressful than it is other citizens.  The families of registered sex offenders suffer as well.  The children of sex offenders and their spouses are often socially ostracized and bullied and are forced to live with the burdens endured by their family member.  Many marriages have been destroyed by one of the spouses sex offender designation.  Being on the sex offender registry puts people at a terrible disability in terms of their ability to find a spouse of start a family and it tears apart families already in existence.  

   The key inquiry in an ex post facto analysis is not whether or not it is just to place burdens upon people who have committed a sex crime.  That is of no concern to this analysis.  The analysis required to for an ex post facto claim in this context is simply one of whether or not the registration requirements constitute punishment.   It defies all reason to take the position that a person who is burdened with all of the disabilities outlined above is not being punished.  

Doe v. Snyder

   In 2016, the Unites States Court of Appeals for the Sixth Circuit decided the case of Doe v. Snyder which is a landmark case in that it was the first time that a United States Circuit court found that a state's sex offender registry laws were punitive and thus violated the ex post facto clause of the Constitution.  The Snyder court struck down Michigan's sex offender registry laws with regard to their retroactively punishing individuals whose crimes occurred prior to the time that the sex offender registry laws were on the books.  The court in Snyder ruled that Michigan's sex offender registry laws were not rationally related to the non-punitive purpose of public safety.  The Supreme Court's decision in Smith was based upon the Court's belief at the time that the recidivism rates of sex offenders was "frightening and high".  For the first time in Snyder the court questions this previously held belief and  concludes based upon the evidence that the recidivism are no higher and possibly lower for sex offenders than for other types of crimes.  Of further importance, the Court in Snyder found that the sex offender registry laws did not make people less likely to commit new crimes thus they did nothing to make the community any safer.  Some studies have actually concluded that the sex offender registry laws make people more likely to commit new crimes because the stigma makes it so difficult for people to re-integrate back into society.  

The Smith Case was decided by the Supreme Court based upon a now debunked myth regarding recidivism rates

  In March of 2017,  New York Times published an article written by Adam Liptak entitled "Did the Supreme Court Base a Ruling on a Myth?".  The article traces the genesis of the belief that recidivism rates are "frightening and high" for sex offenders which formed the basis for the Supreme Court's decision in the Smith case.  Justice Anthony Kennedy who wrote the opinion included the statistic that the recidivicm rates of untreated sex offenders is as high as 80 percent.  Liptak's article traces the origin of that statistic to a 1986 article in Psychology Today which was not supported by any evidence whatsoever.  Amazingly this 1986 magazine article which was unsupported by any evidence has formed the basis for jurisprudence and legislation with regard to sex offenders for the last 16 years.  

What would happen if the Florida courts followed  the sensible and logical precedent set in the Doe v. Snyder case?

   If the Florida state courts or the United States Court of Appeals for the 11th Circuit applied the same approach and followed the precedent set in the Snyder case, then the result would be that in Florida individuals whose crimes occurred prior to October 1, 1996 would no longer be required to comply with the sex offender registry laws.  That is the current state of the law in Michigan.  The attorney general's office sought certification to have the Snyder decision reviewed by the United States Supreme Court, however the court refused to hear the case or to address the issue.  The United States Supreme Court has not addressed the issue of whether or not sex offender registration laws constitute punishment in over 15 years and during that time the laws have grown more and more burdensome on the lives of those on the registry through the continuous addition of more restrictions and more requirements which must be complied with.  This is an issue which is more than ripe for review by the U.S. Supreme Court because the laws have changed so dramatically in the last 16 years.  

  In addition to the Snyder  court, a number of state and federal courts have taken the sensible, common sense approach to evaluating the Constitutionality of the ever evolving sex offender registration laws.  In 2016 The Supreme Court for the Middle District of Pennsylvania ruled that the state's sex offender registry laws violated the ex post facto clause of the Pennsylvania State Constitution.  Ohio courts have taken a similar approach and in 2011 the Supreme Court of Ohio ruled that the ex post facto clause forbade retroactive application of the state's sex offender registry laws to people whose crimes occurred prior to the time that the laws were passed.  The Ohio Supreme Court, just like the federal court in Snyder concluded that the sex offender registry requirements constituted punishment.    The Maryland Supreme court has taken the same view as Snyder and has taken the view that it violates the ex post facto clause to retroactively apply the sex offender registry to people whose crimes occurred before the laws were passed.   Maryland, Ohio, Pennsylvania and Michigan are all states that have had their sex offender registry laws invalidated based upon ex post facto grounds.  A federal judge in Colorado recently invalidated that state's sex offender lifetime registration requirement based upon the fact that it constitutes cruel and unusual punishment.  Yet the Florida courts have refused to acknowledge that lifetime registration is punishment at all! 

  Even Florida courts have have began to view the ex post facto clause applicable to aspects of some local sex offender residency restrictions.  See Doe v. City of Palm Bay, Also See Doe. v. Miami Dade County  

846 F.3d 1180 .