High Court to decide Sex Offender's Ex Post Facto Issue

9-30-2009 National:

Cert Granted in Carr v. United States 08-1301

Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment. From SCOTUS Blog



In essence the court will be looking at this long standing case:
CALDER v. BULL 8-1-1798: This is the source of all ex post facto cases: The court holding a law is a ex post facto violation if any of the following have occurred:

1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

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Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court

Last week, in Danforth v. Minnesota, the U.S. Supreme Court ruled that a state court was free to give greater protection to defendants' rights than the Supreme Court itself requires. Stated that way, the decision is hardly news. In our system of federalism, federal constitutional law is not a ceiling, but a floor. It sets out the minimum protections to which people are entitled. If states--through their constitutions or otherwise--choose to add protection, that is their prerogative.

Yet Danforth was no ordinary application of the floor-but-not-a-ceiling principle, because the question in the case was not whether Minnesota could interpret its own state law more broadly than federal law. Everyone accepts that it (like every other state) can. The question in Danforth was whether Minnesota could over-protect federal law. Perhaps surprisingly, the Supreme Court said yes.

Although the Danforth case involved highly technical and somewhat convoluted doctrine, it nonetheless warrants unpacking, for it may reveal an unexpected and important shift in the Justices' thinking about the relationship of state law to federal law.

The Danforth Case and the Retroactivity Question

At Stephen Danforth's 1996 trial for sexual conduct with a minor, the prosecution introduced a videotaped interview of his six-year-old victim. Danforth objected to this evidence, but the state courts rejected the objection under the standard the Supreme Court had set forth in the 1980 case of Ohio v. Roberts: whether the evidence was sufficiently reliable to satisfy the Sixth Amendment right of the accused to confront his accuser. Danforth was convicted.

After Danforth had exhausted his direct appeals, in 2004, the Supreme Court overruled the Roberts decision. In Crawford v. Washington, the Justices held that the admission into evidence of videotaped testimony of a witness who is otherwise available for trial, violates the Sixth Amendment (which applies to the states via the Fourteenth Amendment). After the Crawford decision, Danforth filed a habeas corpus petition in Minnesota state court, seeking a new trial.


If Danforth had sought habeas relief in federal court, he would have lost. Under the Supreme Court's landmark 1989 decision in Teague v. Lane, federal courts do not grant habeas relief to state prisoners based on "new rules" of constitutional law, except in two narrow circumstances. The rationale for the Teague rule is straightforward: States have a strong interest in the finality of criminal convictions; if a defendant had a trial that conformed to the constitutional standards that were understood to apply at the time of that trial, then the state generally should not have to re-try the defendant simply because it failed to anticipate a novel decision by the Supreme Court.

A contrary rule would put too great a burden on the state and could also create a disincentive for the Justices to recognize constitutional rights: If recognizing a new constitutional right required new trials for defendants who had originally been tried decades earlier, then the Justices would be very reluctant ever to recognize new rights. ..more.. by MICHAEL C. DORF

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Judge tosses sex offender charge

2-11-2008 Louisiana:

A New Orleans man got out of jail today after a federal judge in Mobile dismissed charges that he violated a new federal sex offender registration law.

Chief U.S. District Judge Ginny Granade became the second judge to rule that a defendant could not be prosecuted under the Sex Offender Registration and Notification Act because a key element of the offense occurred before the law took effect.

Ex post facto prohibition established by the U.S. Supreme court case of Caulder -v- Bull 3 U.S. 386 (1798) which states:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " eAdvocate

Lavoid Macio Kent had spent more than six months jailed without bond at the Baldwin County Corrections Center on the charge.

"I'm very happy about it," said Assistant Federal Defender Chris Knight in praising Granade's decision. "I think it was a correct ruling."

Prosecutors did not return phone calls seeking comment this afternoon, but they have appealed a similar case in which U.S. District Judge Kristi DuBose ruled in favor of a Prichard man in December. The two rulings in Mobile take opposite positions from those in Florida in which federal judges have allowed prosecutions under the Sex Offender Registration and Notification Act, leaving it to the Atlanta-based 11th U.S. Circuit Court of Appeals to resolve.

In 2006, Congress passed the law, which makes it a crime punishable by as many as 10 years for people convicted of certain sex offenses to move to another state and fail to register as a sex offender.

Kent, 37, pleaded guilty in 2000 to first-degree sexual abuse in Mobile County. Law enforcement authorities arrested him in May and discovered that he had failed to register as a sex offender in Louisiana when he moved to New Orleans in 2004.

Since Kent's interstate travel occurred two years before Congress passed the law, Granade ruled in an order late Friday, he cannot be prosecuted.

The principle involved, enshrined in the U.S. Constitution, is known as ex post facto. It essentially means that a person cannot be held accountable for conduct that occurs before it is against the law. ..more.. by Brendan Kirby, Staff Reporter

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Court orders Wilson freed in teen sex case

Given the court did not invalidate his conviction, Wilson was convicted of a felony sex crime. Yes, they invalidated his sentence, but not his conviction. Accordingly, since the Adam Walsh Act was made retroactive to the beginning of time, will Wilson have to register when Georgia enacts their version of AWA? Time will tell...
10-26-2007 Georgia:

ATLANTA, Georgia (CNN) -- The Georgia Supreme Court on Friday ordered that Genarlow Wilson be released from prison, ruling 4-3 that his sentence for a teen sex conviction was cruel and unusual punishment.

Wilson, 21, was convicted in 2005 of having oral sex with a consenting 15-year-old girl when he was 17.

He has served more than two years in prison.

Wilson's attorney, B.J. Bernstein, told CNN she is working to gain his quick release, which could come sometime Friday. She said she called the prison warden, who informed Wilson.

"We've been praying for it every day," Bernstein said of the court's decision. "We want him home."

Bernstein added that the ruling shows "the courts do work." She said Wilson's mother, Juannessa Bennett, is "overjoyed."

A spokesman for Georgia Attorney General Thurbert E. Baker said there will be no further appeals. Watch what has to happen before Wilson goes home »

"I respectfully acknowledge the court's authority to grant the relief that they have crafted in this case," Baker said.

"I hope the court's decision will also put an end to this issue as a matter of contention in the hearts and minds of concerned Georgians and others across the country who have taken such a strong interest in this case."

Friday's decision came after a protracted legal battle that has galvanized international attention and drawn the involvement of civil rights leaders. Partly as a result of Wilson's conviction, state legislators changed the law to make such consensual conduct between minors a misdemeanor, rather than a felony.

"The release of Genarlow Wilson by the Georgia Supreme Court is a significant victory in redressing the reckless and biased behavior of the criminal justice system that now operates in many states across the union," the Rev. Al Sharpton said.

"The bad news is that his young life was so unfairly interrupted with time that no state court can recover for him," Sharpton added. "This is why the Justice Department and federal government must review state courts that willfully and almost without pause violate the civil rights of people, particularly young black men around this country."

Wilson was an honor student, a football star and his high school's homecoming king before his conviction.

Prosecutors offered him deals, but he and his attorneys rejected them, saying anything that leaves a record for him as a registered sex offender is unfair.

At the time of Wilson's conviction, Georgia law made the crime punishable by 10 years in prison. Changes in the law made such conduct "punishable by no more than a year in prison and no sex offender registration," the Georgia high court noted.

But those changes were not made retroactive, so they did not apply to Wilson.

The high court upheld the decision of a Monroe County judge. In a 48-page opinion, the court said the "severe" punishment Wilson received and his mandated sex offender registration make "no measurable contribution to acceptable goals of punishment."

The case revolves around a 2003 New Year's Eve party outside Atlanta when Wilson engaged in the sex act with the girl.

Under the now-changed Georgia law, Wilson was convicted of felony aggravated child molestation. He was acquitted on a second charge of raping a 17-year-old girl -- who prosecutors maintained was too intoxicated at the party to consent.

The 10-year sentence was mandatory under the law.

In the decision, Chief Justice Leah Ward Sears wrote that changes in the law "represent a seismic shift in the legislature's view of the gravity of oral sex between two willing teenage participants."

"Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children," the court's majority found.

"For the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime," the majority opinion concluded.

The dissent noted that the Georgia Legislature had made clear that the changes in the law were not to be applied retroactively.

Writing for the dissenting justices, Justice George Carley said, "The General Assembly made the express decision that he cannot benefit from the subsequent legislative determination to reduce the sentence for commission of that crime from felony to misdemeanor status."

The majority countered that it was not applying the 2006 amendment retroactively, but instead factoring that "into its determination that Wilson's punishment is cruel and unusual," the court said in a news release.

The court said this kind of decision is unusual: "The majority opinion points out that this court rarely overturns a sentence on cruel and unusual grounds. But twice before, it did so following a legislative change."

The Monroe County Superior Court judge also ruled that Wilson's punishment was cruel and unusual and voided it on constitutional grounds.

The judge reduced the sentence to one year and said Wilson should not be put on Georgia's sex offender registry, as the old law required.

Wilson's jubilant attorneys had hoped that ruling would free him from state prison. But shortly after it was handed down, Georgia's attorney general announced he would appeal that decision, a move that kept Wilson behind bars.

The Georgia high court said unanimously that the decision to deny Wilson bail was correct.

Wilson's plight drew pleas for his release, including from former President Carter, himself an ex-Georgia governor, and even some jurors who convicted him.

Legislation that would make the change in Georgia's child molestation law retroactive to free Wilson failed to win approval earlier this year. ..more.. by CNN's Mary Lynn Ryan contributed to this report.

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First Defendant in the Nation Charged with Increased Sex Offender Penalty

10-22-2007 Utah:

An Idaho man who moved to Utah last year had the dubious distinction of being the first defendant in the nation charged with violating a federal law that increased the penalty for failure to register as a sex offender.

John Henry Gill, however, no longer is being prosecuted under the Adam Walsh Child Protection and Safety Act.

U.S. District Judge Paul Cassell on Oct. 15 threw out the charge, ruling that this new, tougher law did not apply to Gill at the time he made Utah his new home.

The next day, in an unrelated case, U.S. District Judge Tena Campbell dismissed a charge brought against Keith David Wilson because his move to Utah from South Dakota also predated the date the act went into effect.

The Adam Walsh Act was signed into law by President Bush on July 27, 2006. One of its provisions, the Sex Offender Registration and Notification Act (SORNA), increased the maximum punishment from one year imprisonment to 10 years for failing to register after a move to a new state.

A few months later, a new rule made the tougher punishment also apply to offenders who committed their sex crimes before July 2006 and then failed to register. That rule was enacted in February 2007.

Gill moved to Utah in the fall of 2006, and Wilson in September 2005.

Both Cassell and Campbell agreed that SORNA did not apply to them, at those times and that the increased penalty cannot be imposed retroactively for failure to register in a pre-February 2007 move.

The men might not be off the hook, however. Cassell stressed that Gill still faces possible punishment under Idaho's sex offender registration law.

"While the federal law may not have applied at that time, state criminal statutes may still cover many of these offenders if they failed to follow state registration requirement," Cassell wrote in his decision.

U.S. Attorney Brett Tolman said his office is considering whether to appeal the decisions.

He added: "While there may be some initial issues litigated as a new law comes into use, we will continue to aggressively pursue these cases in the future."

Court records show that Gill, 48, was convicted in Idaho in 2003 of possession of sexually exploitative material and was released from prison in March 2006 after serving time for the offense.

Wilson served a sentence for raping a child and was released from a South Dakota prison in 1999. ..more.. by Pamela Manson, The Salt Lake Tribune

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