Maryland high court says sex offender registry is punishment

By Steve Lash . . . 

BALTIMORE, MD — A sharply divided Maryland high court ruled Tuesday that a convict’s placement on the Sex Offender Registry qualifies as “punishment” for a sex offense, meaning that all elements of the crime required for placement – such as the victim’s age – must be proven beyond a reasonable doubt at trial or conceded in a plea agreement before his or her name can be placed.

The 4-3 ruling marked the first time the Court of Appeals has held registration to be a punishment of the criminal rather than merely a post-conviction administrative act by a state official to alert the public to a convicted child sex abuser in their midst.

The Court of Appeals rendered its decision in holding that convicted human trafficker Jimmie Rogers’ name may not be placed on the Sex Offender Registry because he had not stated in his plea agreement that his victim was a minor. The high court said the head of the Maryland Sex Offender Registry had wrongfully added Rogers’ name, ruling that such a function rests with judges.

In its decision, the majority cited the U.S. Supreme Court’s 2000 Apprendi v. New Jersey ruling that the constitutional guarantee of due process requires that any fact that would increase a defendant’s punishment be proven beyond a reasonable doubt.

The Court of Appeals deemed registration a punishment based on the “affirmative disability and restraint” it places on sex offenders, including the stigma of being on the public registry. These disabilities and restraints also include the “plethora of personal information” registrants must provide, such as every address where they live or habitually reside and all their email addresses, computer log-in names and instant-messaging identities, the court said.

The court also noted the “punishment” of being on the registry for 25 years, which is generally longer than the prison sentence for the underlying sexual offense.

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    • #70608 Reply
      Tim in WI

      Always was always intended to be plain indenture.Clearly!

    • #70632 Reply
      Michael Norberg

      It has always been fairly evident that being placed in the registry is punishment and should be part of the original sentencing instead of arbitrarily being administered by the states. I have found that those that run the program will deliberately lie, deceive, and change the view point on it to make things more difficult for the registrar. There is no oversight when it comes to being on the registry, the state can punish as it sees fit. This ties in to the circuit courts just option that being on the registry is punishment and no one should be punished in perpetuity without their day in court.

    • #70630 Reply
      Jennie Cadwell

      So if part of the punishment is being on the registry then some should not get any jail time and beyond the registry only or vice versa or a combination of two is this how I’m reading it

    • #70631 Reply

      I’m still an Albertson guy.

      Albertson v. SACB, 382 U.S. 70 (1965)

    • #70656 Reply

      As part of any sentencing there is always probation after jail time. SOR should be administered by the courts as part of the original sentence instead of being used as tool by the states to garner more money from the federal government.

    • #70658 Reply

      Haven’t read the opinion yet, but going by the linked article, it looks to me like the dissent of such opinions are still grasping at straws to hold on to the “regulatory not punitive” nonsense.

      The dissent here claims that the registry is not shaming simply because everyone is subject to internet shaming, therefore doesn’t amount to an affirmative disability or restraint. They somehow overlook the residence, employment, and presence restrictions imposed on registrants by state law which I would think go well beyond the supposed purpose of the registry (informing the public of [perceived] threats in their midst) to affirmatively disabling and restraining registrants from being members of the public.

      Also, this is the first instance I have seen that points out that penalties for a registry violation often exceed those imposed for the crime that required registration in the first place. How that can be considered non-punitive is beyond me, and I imagine future dissenters again will simply overlook it.

    • #70680 Reply

      And the punishment endured by their families? And the cheap prosecutorial tactics used to keep their punishment going?
      And the onslaught of bad legislation that led to this whole agenda?

    • #70696 Reply
      H n H

      OK, how about this. I’d think the mods here must have information on acts of vigilantism, suicides, or other negative consequences which can be attributed to the existence of the registry. So… With that in mind, how do those deaths and acts of trauma correlate to documented individuals on the registry actually committing another sex crime?

    • #70749 Reply
      James Coghill

      There used to be a website dedicated to listing all the SO’s who were killed by vigilantes that used the registry to find their victims. Recently I tried to find it but was unable to. Although you might have better luck finding it.

    • #70748 Reply
      James Coghill

      What a disappointment. I mean it’s great for the guy but it stops a thousand miles short of helping anyone but him. You would think that after my 20 years of dealing with this that some lawyer somewhere would have filed a successful pleading on this issue. The fact that they have not only indicates they aren’t trying very hard. This ruling is similar to the recent ruling in Michigan in the fact that it too is applicable to a small minority of people and not everyone.

      When a person has served their sentence the debt has been paid in full and your rights as a citizen have been restored. None of this criminal history stuff, of which the registry is just a tiny part, should affect you in any aspect of your life at this point. If it does then that becomes PUNISHMENT because it amounts to the restriction of a liberty interest. How hard can that be for a bunch of highly educated people to figure out? All those corporate policies we deal with every day that put a restriction of any kind against someone who has served their sentence is violating our Constitutional rights. Case in point, “We don’t rent to sex offenders.” We can’t fight them piecemeal at every turn and they know it. That’s how they get away with it and we have to rely upon a profession that created the mess in the first place to come tour aid. That’s about as messed up as it can get.

    • #70769 Reply
      Tim in WI

      The thing wrong with this ruling is that it neglects the plain text used to indenture. ” was just n prison for “X” crime”. The decision implicates minimal culpability by state and federal gov. I’ve a big problem with that aspect and so should every American.

      Let us not ignore the relational disposition between registrants and machine database. One is clearly subservient, many without process!
      The presumption that a regulatory regime based on benevolence of machine in favor of a free human society is ignorant at best. IMO every bit the ignorance of “separate but equal” doctrine.

    • #70893 Reply

      For three years I have lived in a shelter system in Brooklyn NYC. Federal funding for assistance in housing I do not qualify for as I am a registered offender. I am an essential worker and every week I must see a case manager to make passes for me so that I can go to work and keep my bed. I’ve had this job for over a year and I am happy that I am going to work. However, there are days where I must worry about having a pass in order to attend my needed duties at work. For if I do not have a bed pass to go to work I can lose my bed. (Thus all my belongings are packed up and I’ll have to wait for between 7 and 9am the next day to first get my property back, but I now may be subject to wait for a day or two to get a bed as well. So the federal government will not assist me with housing and the housing Specialist find it extremely difficult to place me. ((I’m not on parole or probation (18 years now) Amen.)) I must pay child support. I must pay my students loans and must contribute to society as a normal tax payer. (I’m not exempt from this.) However, to get out of a shelter system, where life can get dangerous, as with this Covid19 pandemic and not to mention a plethora of other life taking conditions do exist; I am at the bottom; if even on a list for my own places. ( I’ve not gotten into trouble. I do not use substances (Completed two drugs treatment programs. I’ve attened two Sex Offender Counseling programs and I have a Bachelor’s Degree in Social Work with my concentration in Geriatric.) My sentence was 5 to 10 years in 92. I’ve since had children, the oldest is 16 and youngest is 12. I travel as a normal citizen of society and comply with all regulations and registry requirements. So at what point does it begin to seem like protection probably is not the right term when it looks like punishment. I was even charged with neglect in a family court case because the system wanted me to do something more that was not required, but i was not even why the case was before the courts. A rare case that may have set precedence in all following cases. (Must I go on)

    • #70962 Reply

      It’s too political James. No person is going to go against the grain to fight for ESOs. It would surely ruin them. However, we have an attorney here in Baltimore (Towson) that was fired by the state while serving as the state’s chief public defender . Her recourse was to start a private practice. Shortly after, she went up against the state and challenged the registry based on the Maryland Constitution. In turn, causing the state to remove over 1,500 Marylanders from the registry. Google “TOP MD. PUBLIC DEFENDER IS FIRED.” This is an article written in the Baltimore Sun Newspaper. This explains what happened with her and the state. Further research will show what she did to challenge the registry. My point is, when someone has nothing else to gain from their peers or the public, they are more likely to fight for the ESO’s (as long as they have not been brainwashed). We need to keep an eye out for these people and approach them with our situation.

      P.S. “ESO” stands for “Ex Sex Offender” I’m tired of being referred to as a “Sex Offender” It gives the impression that sex offending is what I still do. If we refer to other ex criminals as, “Ex Con”, “Ex Felon” or “Ex Offender”, to help refine their perceived image, then I want the same respect for me and all other registrants. We should demand it! Continuing to use the term “Sex Offender” is just another subtle way to shame us. Which sounds better? “There is a sex offender living down the street” or, “There is an ex sex offender living down the street.” Stand-up! Make the change!

    • #71001 Reply

      Internet shaming is covered by bullying laws. The government should not be aloud to do it ether. If it is punishment then it is double jeopardy.

    • #71083 Reply

      All i can say for any of those who say it’s not a punishment. Then if you think that then put your name and picture and all required information on the registry for 1 year. Then after 1 year tell me if it’s a punishment or not.

    • #71184 Reply

      I don’t get it. It is punishment but only if the victims personal information (age) has not been verified? So all that needs to be done is a little background information on the victim and it is not punishment?

    • #71193 Reply

      I’d be willing to bet most judges have child molesters in the front of their minds when they do legal gymnastics to uphold this draconian and byzantine code of AFFIRMATIVE RESTRAINTS. They all have kids, grand kids, neices, nephews, and maybe even great grand kids…all they think about is if one of those sorry……did something to one of theirs they’d kill them with their bare hands. The hate and animosity for the type of crime makes them willfully blind to the Unconstitutional nature of the whole regime. However, as Larry points out on “Registry Matters”. States could have a CONSTITUTIONAL REGISTRY IF….

      1. Registration was as simple as an initial report-in for photographing and address information and then thereafter verification by simply filling out a card and mailing it in with maybe a new photo every 3 years or so.
      2. If the registry law didn’t include any presence, residency, or work restrictions.
      3. If the penalties for noncompliance were in line with the penalties for violating other civil regulatory schemes.
      4. If registry administration and enforcement was in the hands of a civil regulatory agency since it’s supposedly civil and regulatory in nature.
      5. The strict liability clause was removed from the law so honest mistakes or unavoidable delays aren’t treated like intentional felonies.
      6. If the registry was not published on-line (preferable), but if it was to be on-line all it would say is “(Insert name) was convicted of or plead guilty to (insert offense) on (insert date). There would be no pictures, no addresses, no place of employment listed, no driver’s license numbers, etc….just a list of names, offenses, and dates. There would be no way for an individual to be identified and tracked down. Only the conviction record is public. Your place of employment, where you live, etc. is NOT a part of that record. The registry releases far more than just what is included in the public records.

    • #71192 Reply

      Why not drop “sex offender” altogether. I call myself and others PERSONS FORCED TO REGISTER. I refuse to let the words “sex offender” be linked with me or my fellow registrants in any way. That label only applies to those who are actively committing crimes because they haven’t been caught yet.

    • #71719 Reply

      a flash of integrity.

      so obvious congress itself waffled when it came to retroactivity. should all be impeached.

      civil restraint is still restraint. commercialized exploitation of a target. a right of ownership.

      PD charges me for data. google charges PD for data.

    • #75062 Reply

      If registering is punishment, how can Maryland punish someone convicted in another state by making them register?

    • #77232 Reply

      I am being targeted through the registry. My aunt used a pic of me and posts it in the area where I am residing. She uses the registry to find the address. I did time in prison, and now I must do my time in society. WHAT EVER HAPPENED TO DOUBLE JEOPARDY???

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