Hit & Run

Sex Offenders Say Idaho's Retroactive Registration Requirements Are Unconstitutional

Idaho's law is similar to Michigan's, which a federal appeals court recently deemed punitive.

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Idaho State Police

When Idaho first required sex offenders to register with police in 1993, most of them were not forced to do so for the rest of their lives. But over the years legislators extended lifetime registration to more and more crimes, and today it presumptively applies to all sex offenders, who also must check in with police every 90 days. A federal lawsuit filed last Friday argues that retroactively imposing those requirements on sex offenders, in some cases more than two decades after they were convicted, violates the Constitution's ban on ex post facto laws.

Whether the courts agree will depend on whether they view registration and the burdens associated with it as a punishment. In the 2003 case Smith v. Doe, the Supreme Court ruled that Alaska's sex offender registry was essentially regulatory and was not punitive enough to violate the Ex Post Facto Clause. But in August the U.S. Court of Appeals for the 6th Circuit concluded that Michigan's Sex Offender Registration Act goes far enough beyond Alaska's law that applying it retroactively is unconstitutional. The 6th Circuit focused on the act's arbitrary classification scheme, residence restrictions, and burdensome reporting requirements—all features shared by Idaho's law.

Michigan puts sex offenders in tiers that supposedly indicate how dangerous they are, but an offender's classification is based entirely on the statute he violated, as opposed to an individualized assessment of the risk he poses. While Idaho has no tiers, putting all sex offenders in the same category and requiring all of them to register for life implies that they are all equally dangerous, which is arguably even more misleading than Michigan's system. The Idaho lawsuit, which was brought by 104 sex offenders, argues that the state "publicly and falsely identifies [the plaintiffs] as among the most dangerous sex offenders on the registry," even though they "have clinically been determined to be low risk."

Michigan makes it illegal for sex offenders to live, work, or loiter within 1,000 feet of a school. Idaho's zone of exclusion is half as big, and it does not explicitly apply to work, although it effectively bars sex offenders from any job that might require being present on school grounds (to deliver goods or repair equipment, for example). Even sex offenders attending their children's school functions have to get permission in advance.

Like Michigan, Idaho requires registrants to immediately report in person even minor changes in their information, such as a new online ID or a newly borrowed car. Failing to do so within two days is a felony punishable by up to 10 years in prison. Registrants also have to report in advance any trip lasting longer than seven days, and if they travel to another state they are subject to its restrictions, which may be different and hard to figure out. The lawsuit says Idaho's "reporting, surveillance, and supervision requirements" for sex offenders "are similar to, but more restrictive and onerous than, the reporting, surveillance, and supervision that the plaintiffs experienced while serving their sentences on probation or parole."

The plaintiffs note (as the 6th Circuit did) the lack of evidence that these requirements actually make the public safer, which is the rationale for viewing them as regulations rather than penalties. "In fact," says the lawsuit, "the research shows that public registries are likely to increase, rather than decrease, recidivism, and are therefore counterproductive to their avowed purpose of public protection….These results reflect the fact that sex offender registration and the attendant consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community."

The lawsuit also argues that some provisions of Idaho's law are unconstitutionally vague. It is not clear, for example, whether a registrant commits a felony by signing up for Netflix or changing his Amazon user ID and failing to notify police (in person!) within two days. Other claims involve double jeopardy, cruel and unusual punishment, freedom of travel, and religious freedom (since churches may be within 500 feet of a school).

This month the U.S. Court of Appeals for the 9th Circuit, which includes Idaho, ruled that a state appeals court "was not unreasonable" in holding that Arizona's sex offender registry was mainly regulatory rather than punitive. That decision does not bode well for the challenge to Idaho's law, but it does not preclude success either, even on the ex post facto claim. Idaho's law is more burdensome than Arizona's in some respects, and the 9th Circuit did not independently assess Arizona's law in this month's ruling, which involved a habeas corpus petition filed by a sex offender sentenced to prison for failing to register. The 9th Circuit merely concluded that the state court's decision was "neither contrary to, nor an unreasonable application of" Smith v. Doe.