By Adam R. Banner
Recent decisions have relied on the reasoning of the US Supreme Court in Smith v. Doe when analyzing challenges to sex offender registry laws. The Smith decision notoriously held that Alaska's sex offender registry did not violate the US Constitution's prohibition on ex post facto laws. The US Supreme Court held that the Alaska registry was constitutional by applying a two-step analysis: first, determining whether the legislation was intended to have a punitive effect and if so, analyzing the results of the "intents-effects" test established by the court in Kentucky vs. Mendoza-Martinez.
The Oklahoma Supreme Court wisely broke from Smith when it decided Starkey v. Department of Corrections on June 25, 2013. Although the Starkey decision relied on the same framework established in Smith, the Oklahoma Supreme Court acknowledged that the challenged state sex offender statutes were not at all the same as the Alaska registration scheme examined by the US Supreme Court in Smith.
The inconsistent nature of the two cases was largely due to the fact that Smith was decided prior to the state-level application of the federal Sex Offender Registration and Notification Act (SORNA) which, once adopted, completely altered the complexion of the Oklahoma Sex Offender Registration Act (OSORA). Oklahoma codified the SORNA amendments on November 1, 2007, and effectively ushered in an era of unconstitutional restrictions on its citizens. Most notable was a new tiered registration scheme, which retroactively changed the length of registration required by every individual subject to the registry.
Before the 2007 amendments, registration was only required for ten years. However, the 2007 "tier" or "level" system was retroactively applied to all sex offenders required to register in Oklahoma. As such, individuals were required to register for either fifteen years (Level 1), twenty-five years (Level 2) or for life (Level 3).
Starkey, an individual who pled nolo contendere and received a deferred adjudication in Texas on October 12, 1998, subsequently moved to Oklahoma and challenged the OSORA as violating the ex post facto clause of the Oklahoma Constitution. Consequently, the Oklahoma Supreme Court had to first ascertain whether the amendments to the Oklahoma registration scheme were intended by the legislature to be applied retroactively. Although OSORA was created in 1989, it has been amended almost every year since to increase the obligations of sex offenders. Many of those changes are substantive, and not merely procedural, as they increase the registration length for registrants.
Ultimately the Oklahoma Supreme Court found that, although the Oklahoma Department of Corrections had been applying all of the amendments retroactively, the Oklahoma Legislature did not intend to apply the new three-tier-scheme retroactively. The court used canons of construction to gauge the legislative intent; it focused on the portions of OSORA which expressly included prospective language, and also invoked the long held presumption that any doubt regarding legislative intent must be resolved against a retroactive application. Therefore, the Department of Correction's retroactive application of the level-assignment amendments to anyone subjected to the Oklahoma registry prior to November 1, 2007, without any express legislative intent to do so, violated the ex post facto clause of the Oklahoma Constitution.
A good portion of the Starkey opinion also focused on other amendments to OSORA which had been enacted prior to the level-assignment scheme. Specifically, the court examined the 2004 amendment which required registration to be 10 years from the date of completion of the sentence, described further as "the day an offender completes all incarceration, probation and parole pertaining to the sentence." Prior to 2004, registration was only required for ten years, regardless of the length of probation or the sentence in general. A retroactive application of the 2004 amendment would effectively double the registration requirements for individuals such as Starkey, who was initially sentenced to only ten years of probation.
Regardless, the court found that the 2004 amendment was intended to be applied retroactively by the Oklahoma Legislature. Consequently, the court conducted its analysis as to whether the 2004 amendment violated the ex post facto prohibition, which only applies to penal laws. Thus, the Oklahoma Supreme Court had to determine if the amendments were intended to be punitive or merely regulatory.
In the face of findings pointing to a civil intent, the court noted the considerable evidence of a punitive effect. In applying the "intents-effects" test , derived from Kennedy and applied in Smith, the court found five of the seven factors favored a punitive effect. This ultimately overrode any regulatory intent and made the retroactive application of the amendments inconsistent with the state's ex post facto clause. The court came to this conclusion in the face of the US Supreme Court's Smith decision by expressing Oklahoma's ability to apply the "intent-effects" test differently than a federal court applying the same test under the federal Constitution, so long as Oklahoma's interpretation is at least as protective as the federal interpretation.
Furthermore, Starkey addressed another question regarding the application of the OSORA: what is the correct date at which time the OSORA becomes applicable to an out-of-state offender who moves to Oklahoma? Starkey himself was originally convicted of a sex crime in Texas and subsequently moved to Oklahoma. Starkey holds that OSORA requirements are determined by the date an individual voluntarily comes to Oklahoma with the intent to "be in the state" after his or her conviction in another jurisdiction.
The court did not find that the OSORA is unconstitutional on its face. Regardless, other issues regarding out-of-state offenders who move to Oklahoma were not covered by the Starkey decision. Two other cases decided mere months after Starkey addressed other constitutional issues in relation to OSORA and its application to out-of-state offenders.
In Hendricks v. Jones, the plaintiff challenged the constitutionality and application of OSORA in regards to offenses that occurred before the act's effective date (November 1, 1989) and its subsequent amendments. The Hendricks court found that a 2005 amendment to OSORA, which required registration if the individual was currently serving a sentence or any form of probation or parole for an offense which occurred in Oklahoma, applies to persons so described regardless of whether their offense occurred before or after November 1, 1989.
Hendricks, however, was convicted of a sex offense in California in 1982. He challenged the OSORA's different registration starting dates for individuals with offenses which occurred in Oklahoma opposed to those subject to OSORA due to an offense which occurred outside of Oklahoma. Under the 2005 amendment to OSORA, out-of-state offenders were subjected to the Oklahoma sex offender registry if they resided, worked, or attended school in Oklahoma and were convicted or received a suspended sentence in any court or any jurisdiction at any time. However, individuals subjected to the registry because of an offense which occurred in Oklahoma were only required to register if their offense occurred after November 1, 1989, or if they were serving a sentence or any form of probation or parole for a registerable offense on November 1, 2005.
Individuals subjected to the OSORA due to equivalent offenses, who received the same exact sentence beginning at the exact same time, where effectively given different protection from the law based on the location of their offense. The Oklahoma Supreme Court held there was no rational basis for treating individuals differently simply based on the location of their offense. The court looked to case law from the Third Circuit and the New Mexico Court of Appeals which also held that differing treatment for resident and non-resident sex offenders was not rationally related to furthering the interest in protecting citizens from sex offenders.
Of course, that holding only applies to Hendricks, and any other similarly situated sex offender, if Hendricks was not still serving a sentence or any form of probation or parole on November 1, 2005, for his 1982 crime. In that case, Hendricks would still be required to register just as any individual in Oklahoma who fit that description would, and no equal protection issue would exist.
Consequently, even though Hendricks was convicted prior to the November 1, 1989, start date, he could still be required to register in Oklahoma if he moved to the state after November 1, 2005, under certain circumstances. But what about individuals who received sentences or probation for offenses prior to the effective November 1, 1989 date, who moved to Oklahoma before the November 1, 2005, amendment requiring registration for those serving a sentence or any probation or parole for a sex offense?
That question was answered in Bolin v. Jones. Bolin was convicted of a sex offense in Missouri on June 1, 1987, and received a sentence of five years incarceration. He moved to Oklahoma in June of 2004. At that time, the OSORA only required registration for individuals who, after November 1, 1989, received a suspended sentence or any probationary term for an offense which would require registration in Oklahoma and who resided, worked, or attended school in Oklahoma. Bolin was not informed of his requirement to register in Oklahoma until January 4, 2010, some five and one-half years after he moved to Oklahoma.
In addressing Bolin's argument against registration, the Oklahoma Supreme Court reconciled multiple subsections of OSORA dealing with the registration requirements of individuals convicted of sex offenses outside of Oklahoma. The court, in reading the applicable statutes together, held that an individual convicted, etc., of an applicable offense on or after November 1, 1989, only has to register in Oklahoma if he or she is residing, working, or attending school in Oklahoma on or after November 1, 1989.
Moreover, the court analyzed the applicability of two amendments passed after Bolin moved to Oklahoma in 2004. On November 1, 2005, an amendment was passed to require registration for individuals who had been convicted or received a suspended sentence at any time in any jurisdiction outside of Oklahoma, which would require registration, who subsequently moved to Oklahoma after November 1, 1989. A similar amendment was made on July 1, 2006, which also changed the registration requirements for out of state offenders to focus on the date of entry into Oklahoma as opposed to the date of the conviction, etc.
Instead of addressing the application of these amendments and their probable unconstitutional result, the court once again relied on the reasoning of the Starkey decision: the provisions of the OSORA, when taken as a whole, are punitive and cannot be applied retroactively. Since the amendments were not applicable to Bolin, the Court did not need to address their constitutional implications. Regardless, the Bolin decision can be read in conjunction with the Hendricks decision to infer that application of those amendments to out-of-state offenders would be a violation of the equal protection clause as well.
Although the Oklahoma Supreme Court was careful not to tread on any issues related to the federal SORNA, these recent Oklahoma decisions will hopefully have far-reaching implications for many other states as well. The Oklahoma Supreme Court had no qualms about referencing other jurisdictions' decisions when it ultimately declared Oklahoma's sex offender laws as being applied unconstitutionally. It is fair to infer that other states will likely (and should) look to the recent Oklahoma decisions when analyzing challenges brought against their respective sex offender registration schemes as well.
If enough jurisdictions realize that the state registries (often based on federal sex offender laws) are being applied unconstitutionally, we could possibly see the US Supreme Court reexamine its position in Smith.