Sex Offenders and Ex Post Facto Laws (Part 2)

The Appellate Division continued: Initially, the Legislature could have chosen an alternative method to compel compliance with Megan’s Law’s registration requirements, but, instead it elected to impose potential penal consequences upon those who failed to register or provide notification and re-register upon relocation. Thus, while the Court in Poritz held the overall purpose of Megan’s Law is remedial in nature, the method chosen to enforce its registration requirements is not. See, e.g., Gillette, 553 F. Supp. 2d at 528 (recognizing that although the federal registration statute “may be considered a civil regulatory scheme, there was no justification for viewing” an amendment that imposed a harsher sentence for failing to register as “civil in nature or nonpunitive”). The Committee statement reporting favorably on the proposed legislation that became L. 2007, c. 19 makes clear it was intended to increase the punitive consequences for those who violated Megan’s Law’s registration obligations. Assemb. Judiciary Comm. Statement to S. 716 & 832 (Oct. 23, 2006). Because the Legislature enacted the amendments “to impose punishment,” the statutes “had a punitive intent.” That alone compels ex post facto analysis.

Along these lines, some federal courts have conducted ex post facto analyses when amendments to otherwise remedial federal sexual offender notification statutes imposed additional punitive consequences, for example, increasing sentencing exposure when the sex offender travelled interstate and failed to register. In Gillette, the district court concluded that it was a violation of the ex post facto clause to apply increased penalties for failing to register to the defendant, who traveled interstate and failed to register before the effective date of the amendment. 553 F. Supp. 2d at 533; accord Stinson, 507 F. Supp. 2d at 569.

Article 1, subs-section 9 of the United States Constitution prohibits Congress from passing any laws which apply ex post facto. Article 1, sub-section 10 prohibits the states from passing any laws which apply ex post facto.