In United States v. W.B.H. the Eleventh Circuit held that defendants convicted of non-sexual offenses who have past sex offense convictions may be required to register as sex offenders as a condition of supervised release—even if the prior sex offense conviction occurred before the registration requirement passed by Congress in 2006.
In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires criminals convicted of a sex offense to register as sex offenders.
In this case, the defendant was convicted of first degree rape in 1987 when he was 18 years old, before SORNA was passed. In 2009, post-SORNA, the defendant was convicted of conspiracy to distribute drugs. As a condition of supervised release, the district court held that the defendant was required to register as a sex offender for the 1987 conviction. The defendant appealed arguing that this requirement violated the Ex Post Facto Clause. The Eleventh Circuit rejected this argument on grounds that Ex Post Facto relief applies only to criminal laws, not civil regulatory schemes and that SORNA was a civil regulatory scheme.
The Eleventh Circuit applied the two-part test set forth by the Supreme Court in Smith v. Doe, concluding that (1) Congress intended the sex offense registry to be a civil regulatory scheme rather than a criminal law and (2) the civil regulatory scheme is not so punitive in its effect to negate Congress’ intent.
The court reasoned that the registry’s predominant purpose is public safety, rather than the punishment of offenders. The court also reasoned, less persuasively, that the sex offense registry is not viewed as punishment or shaming by the public because it does not stage a direct confrontation between the offender and the public. Further, the court reasoned that the registry is not predominantly punitive in effect because it does not impose affirmative disabilities or restraints on the registrants—that the punitive effects of the registry are only indirect.
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