Another opinion from eAdvocate
UPDATE: See the end of this article for the corrections.
In Tennessee individuals convicted of sex offenses must register as a sex offender with the State and are subjected to various living and working restrictions pursuant to the registration statute, T.C.A. 40-39-201.
In addition to the registry statute Tennessee also enacted a separate lifetime supervision statute, T.C.A. 39-13-524 with additional life time restrictions for any one convicted of certain classified violent sexual offenses.
On July 7, 2010 the Tennessee Supreme Court issued a ruling in Marcus v. State , 04-06910, which held that the Sex Offender Registration Statute, T.C.A. 40-39-201 may be applied retroactively to individuals convicted of their offense prior to the enactment of the statute because the legislature did not intend for the registration statute to serve as additional punishment but was meant to only "regulate" those previously convicted. The basis for the ruling was that the Ex Post Facto Clause of the Tennessee Constitution only prohibits retroactive application of laws enacted for punishment.
However, the Court also ruled in Marcus that the lifetime supervision statute, T.C.A. 39-13-524 was meant to be "punitive". This ruling could have important ramifications and could open the door to the challenge of some lifetime supervision sentences through the application of the U.S. Supreme Court decisions in Blakely v. Washington and Apprendi v. New Jersey. T.C.A. 39-13-524 requires that before a person convicted of certain listed sex offenses may be subjected to life time supervision the sex offense must have been committed on or after July 1, 1996. Apprendi and Blakely held that facts other than a prior conviction that increase the penalty for a crime beyond the statutory proscribed maximum must be submitted to a jury. Maximum sentence was defined as the sentence a judge may impose without any additional findings. Due to the fact that T.C.A. 39-13-524 requires the additional finding of the date of the offense to be on or after July 1, 1996, unless the date of the offense was submitted to the jury and the date of the offense was found by the jury to be on or after July 1, 1996 there is an argument that life time supervision may not be imposed. I would submit that the simple allegation in the indictment of the date of the offense is insufficient to constitute a submission of the date to the jury. In most cases the date of the offense is not an element of the crime, and in most cases the jury will not be instructed that they must determine the date, nor will their verdict reflect a determination of the date they found the offense to have been committed. In such instances even if there was an allegation of the date in the indictment or even testimony as to dates, unless the jury was instructed to determine a date and the verdict reflects a finding of the date, it seems clear that a sentence of lifetime supervision would be in violation of the rulings in Apprendi and Blakely and would therefore be unlawful.
It appears this person saw "not punishment" and thought it said "is punishment!" This was pointed out by someone via email.
Here is case: http://www.tsc.state.tn.us/opinions/tcca/PDF/091/WardMarcusOPN.pdf
"The aim of community supervision as elucidated in section 39-13-524(d)(1) is “to protect the public from the person’s committing a new sex offense, as well as promoting the rehabilitation of the person.” Tenn. Code Ann. § 39-13-524(d)(1). Section 39-13-524 provides that upon a sex offender’s completion of his or her term of imprisonment, he or she then falls under the supervision of the Board of Probation and Parole “in the same manner as a person under parole supervision” and is, by the Board, given individualized conditions to follow. Id. Even though it is referred to as lifelong, the sex offender can petition for release from community supervision after fifteen years. Id. § 39-13-525(a).
Given the protective and rehabilitative aims of sex offender community supervision and the similarities to regular parole, by extension of our supreme court’s reasoning in Jaco, we conclude that community supervision is not punishment but, instead, a collateral consequence of the petitioner’s guilty plea."