Dissent argues registration is administrative, imposes burden but no restraint
By Steve Lash
BridgeTower Media Newswires
BALTIMORE, MD — A sharply divided Maryland high court ruled Tuesday that a convict’s placement on the Sex Offender Registry qualifies as “punishment” for a sex offense, meaning that all elements of the crime required for placement – such as the victim’s age – must be proven beyond a reasonable doubt at trial or conceded in a plea agreement before his or her name can be placed.
The 4-3 ruling marked the first time the Court of Appeals has held registration to be a punishment of the criminal rather than merely a post-conviction administrative act by a state official to alert the public to a convicted child sex abuser in their midst.
The Court of Appeals rendered its decision in holding that convicted human trafficker Jimmie Rogers’ name may not be placed on the Sex Offender Registry because he had not stated in his plea agreement that his victim was a minor. The high court said the head of the Maryland Sex Offender Registry had wrongfully added Rogers’ name, ruling that such a function rests with judges.
The high court’s landmark, 48-page ruling, by the slimmest of majorities, drew a 52-page dissenting opinion.
In its decision, the majority cited the U.S. Supreme Court’s 2000 Apprendi v. New Jersey ruling that the constitutional guarantee of due process requires that any fact that would increase a defendant’s punishment be proven beyond a reasonable doubt.
The Court of Appeals deemed registration a punishment based on the “affirmative disability and restraint” it places on sex offenders, including the stigma of being on the public registry. These disabilities and restraints also include the “plethora of personal information” registrants must provide, such as every address where they live or habitually reside and all their email addresses, computer log-in names and instant-messaging identities, the court said.
The court also noted the “punishment” of being on the registry for 25 years, which is generally longer than the prison sentence for the underlying sexual offense.
“Significantly, information about sex offender registrants is publicly available and required to be posted on the Internet,” Judge Shirley M. Watts wrote for the majority.
“The Internet has increased dissemination of the personal information of sex offenders, and anyone, at any time and for any reason, can look up a current listing of a registrant,” Watts added.
“Public availability and dissemination of sex offender registration expose sex offenders to ostracism, and may cause lost employment opportunities, housing discrimination, threats, and violence.
In sum, we conclude that this factor – whether sex offender registration has an affirmative disability and restraint – weighs heavily in favor of registration having a punitive effect.”
Watts was joined in the opinion by Judges Robert N. McDonald, Joseph M. Getty and Brynja M. Booth.
In dissent, Judge Jonathan Biran stated that registration is not a punishment that places a restraint on convicted sex offenders but an administrative act that imposes a burden.
“First and foremost, in my view, there is a significant distinction between a ‘burden’ on the one hand, and either a ‘disability’ or ‘restraint’ on the other,” Biran wrote.
“Most notably, of course, registration imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint,” Biran added. “While registrants are required to report in person to a local law enforcement authority either twice a year (for Tier I and Tier II sex offenders) or four times a year (for Tier III sex offenders and sexually violent offenders), this burden and the other requirements placed on registrants do not rise to the level of disabilities and/or restraints.”
In addition, the public ostracism related to being placed on the registry does not convert the administrative burden to a punishment, as may have been the case in colonial times, when wearing the scarlet letter was a criminal sentence, Biran wrote.
“The majority’s ... analogy to shaming ultimately is inapt because they fail to recognize that, in today’s age, there is much more information that is publicly available – and easily accessible – about most Americans than there was when ‘shaming’ was a recognized form of punishment,” Biran wrote. “And, regrettably, public shaming on the Internet of nonpublic figures is so common in today’s world that it is difficult to conceive of the humiliation attendant to sex offender registration as a form of state-imposed punishment.”
Chief Judge Mary Ellen Barbera and Judge Michele D. Hotten joined Biran’s dissent.
Maryland State Police arrested Rogers after a search for a missing “young woman” led troopers to a post that resembled her on the now-defunct Backpage website, which provided advertising for prostitution, according to court papers.
A trooper posing as a potential customer called the number and arranged a meeting at a Linthicum hotel, where Rogers was subsequently seen.
The trooper met the young woman – identified in court papers as M.H. – in one of the hotel rooms, where she told the officer that Rogers was her “boss,” had posted the ad on Backpage, had rented the hotel room, had required her to have sex with customers and then kept the proceeds, the papers stated.
The troopers arrested Rogers, who pleaded guilty in 2015 to human trafficking. Under the plea agreement, the prosecution dropped a charge that Rogers was trafficking a minor, according to the papers.
He was sentenced to 10 years in prison, with all but 548 days suspended, and two years’ probation.
Upon his release from prison, Rogers was administratively ordered to register as a sex offender.
He challenged the order in Anne Arundel County Circuit Court, saying he was never convicted of trafficking a minor.
The circuit court agreed, saying the registration requirement applies only if it is pleaded to or proven beyond a reasonable doubt that the trafficking victim was a minor.
The state then sought review by the Court of Special Appeals, which said last year that the lower court was wrong to require proof beyond reasonable doubt.
The registration requirement would apply if the state can show it was more likely than not that the victim was a minor, the intermediate appellate court said in its reported decision remanding the case to the circuit court for that determination.
Rogers and the state then sought review by the Court of Appeals.
The Maryland Attorney General’s Office declined to comment on the court’s decision.
