ST. FRANCISVILLE, La.—In a case that illustrates due process problems inherent in some state sex offender registry programs, the Louisiana Supreme Court ruled last Tuesday that Jimmy L. Smith will have to spend the rest of his life on a sex offender registry, even though his only "crime" was a single consensual sex act that took place when he was a teen. Adding horrible luck to lifetime injury, the act took place in two separate jurisdictions, leading to two separate convictions, which put him in jeopardy of the lifetime registration.
“Smith was accused of having sex, when he was 19, with a girl under the age of 17 in the back of a truck while a friend drove them from East Baton Rouge Parish to East Feliciana Parish,” reported theadvocate.com. “In 1995, Smith pleaded no contest in East Feliciana Parish to indecent behavior with a juvenile and guilty in East Baton Rouge Parish to carnal knowledge of a juvenile. He was sentenced to two concurrent three-year prison terms.”
The no contest plea also meant that Smith would have to register with the state sex offender registry for a ten year period following his release from prison, which took place in 1996 following 18 months of incarceration. Upon release, Smith met with his parole officer and informed him that he wanted to move to Mississippi. According to the Facts and Procedural History contained in the Louisiana Supreme Court ruling, “On December 24, 1996, following the direction of his parole officer, Mr. Smith registered as a sex offender with the Wilkerson County Sheriff's Office in Mississippi.”
Smith returned to Louisiana in 2003, where he registered with that state’s sex offender program through 2006, when he ceased registering. “The hearing transcript reveals that Mr. Smith believed his duty to register as a sex offender ended in December 2006, ten years from the date of his initial registration in Mississippi,” the LSC ruling stated.
Three years later, however, he was contacted by Louisiana and informed that because the sex offender law in the state had been amended several times in the intervening years, he had to start registering again annually... for the rest of his life. It turns out the new law imposed lifetime registration on people convicted in two separate jourisdictions. Smith's truck ride, of course, exposed him to the two prosecutions.
Smith registered for the sex registry in January 2009, but a month later filed a petition to “enjoin various state agencies from enforcing the sex offender registration law," arguing that "by subjecting him to the amendments of the sex offender registration statutes after he had completed his ten-year registration period, the State of Louisiana was violating the ex post facto clauses of the constitutions of Louisiana and the United States.”
A district court ruled against him, but the First Circuit overruled after determining that "Mr. Smith's obligation to register, under the law in effect at the time of his conviction, had terminated in December 2006, ten years after his initial registration in Mississippi,” that “the 1999 amendment... creating the lifetime duty to register, did not apply to Mr. Smith because it excluded persons convicted of a sex offense before July 1, 1997,” and that “the subsequent amendments in 2007 and 2008... also did not apply to Mr. Smith because their application would violate ex post facto principles.” Ex post facto laws that apply increased punishment retroactively are prohibited by clause 3 of Article I, section 9 of the U.S. Constitution.
In reversing the First Circuit, the Louisiana Supreme Court concluded, “We find the 1999 amendment as a multiple sexual offender. We further find no violation of the ex post facto clause in the application of the sex offender registration statutes to Mr. Smith. Thus, we reverse the ruling of the court of appeal, and reinstate the district court's judgment denying Mr. Smith's petition for injunctive and declaratory relief and ordering him to register as a lifetime sex offender.”
In its detailed justification for the finding, however, the court also exposed the significant level of impact the lifetime registration will have on Smith (and others in a similar position). “Some of the provisions of the registration statutes may be remotely similar to historical forms of punishment, such as public humiliation," the court admitted, adding that the "burden of the public and community notification process on convicted sex offenders" also causes them "to expend money they were not obligated to pay at the time they committed their offenses.”
Despite those burdens, the court found that “the extension for life of the time period for registration, as well as the added requirement of notations on Mr. Smith's driver's license or identification card, may be harsh, may impact a sex offender's life in a long-lived and intense manner, and also be quite burdensome to the sex offender"—but it did not infringe on "the principles of ex post facto.”
Why? Well, because “it is well-settled that Louisiana's sex offender registration requirements are not punitive, but rather, they are remedial and may be applied retroactively without violating the prohibition of the ex post facto clause."
In other words, they are for his own good.
But even if they are not, it is still okay to impose lifetime registration retroactively because the "onus placed on [sex offenders] by the legislation did not constitute a separate punishment for their offense, but rather, it imposed a condition of their release on parole or probation.”
In other words, we changed our mind. Get over it.
In the end it's hard to see how Smith has gotten anything but a raw deal, but he's not the only one who has had to adapt to a nationwide wave of increased sentences and post-incarceration supervision for low level non-violent infractions. The issue of fairness is something most states are dealing with as they try to comply with federal sex offender mandates imposed as part of the Adam Walsh Child Protection and Safety Act of 2006. Ensuring that the punishment fits the crime has been one of the biggest challenges facing these programs, and a case like this exemplifies how easily basic fairness can be overlooked.
It’s no wonder Smith’s attorney, Charles Griffin, reacted indignantly when he talked about the possibility of an appeal to the highest court in the land. .
“It’s going to take some guys up in Washington who have a little more insight into due process,” he said, proving that hopes springs eternal.