Sex Offenders and Ex Post Facto Laws (Part 1)

On July 22, 2019, a three-judge appellate panel decided the Middlesex County case of State v. Paul Timmendequas. The principal issue was whether a sex offender sentenced in 1999 could be charged with failing to register with the local authorities under a 2007 amendment that made the N.J.S.A. 2C:7-2 offense a third degree in stead of a fourth degree without violating Ex Post Facto prohibitions.

Presiding Judge Messano held in relevant part as follows: We come then to the State’s final and most persuasive argument. It notes that N.J.S.A. 2C:7-2 requires all sex offenders to register, including those who are not on any form of supervised release under CSL or PSL, either because their crimes pre-dated the passage of Megan’s Law, or because their particular sex offense does not require a mandatory PSL sentence under N.J.S.A. 2C:43-6.4(a).

The State contends the holding in Hester is limited, therefore, because it was “premised on the Court’s finding that the amended version of N.J.S.A. 2C:43-6.4 enhanced the penalties for a violation of ‘supervised release,’ an obvious penal consequence of the defendants’ original conviction. See Hester, 233N.J. at 385 (“Community supervision for life was a punishment imposed on defendants at the time they were sentenced.”); see also Schubert, 212 N.J. at 307 (distinguishing the consequences of registration and notification from “the significant restrictions that are attendant to [CSL]”). Because registration is not punishment imposed at the time of sentencing, Poritz, 142 N.J. at 43, increasing the penalty for failing to register or notify and re-register upon relocation was not “additional punishment that attached to a condition of defendant’s sentence.” Hester, 233 N.J. at 392. While there is intuitive appeal to the argument, we reject it.

An ex post facto law is one that makes an act illegal that was legal when committed. It is also a law that increases the penalties for an offense after it was committed. The term also applies to a law that changes the rules of evidence to make a conviction easier.