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June 28, 2013

Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrine

As reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:
[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.

Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”

Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....

Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....

Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....

However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....

Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision.

Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling. Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.

The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:

Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.

Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.

This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.

June 28, 2013 at 04:11 PM | Permalink


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Who would have thought that a bunch of Okies from Muskogee would have ten times the intelligence of the 9 black pajama wearers in DC. (I may except Thomas and Scalia).

Posted by: albeed | Jun 28, 2013 6:02:34 PM

Without getting too involved in dissecting the decision, it is apparent that more and more jurisdictions are taking in the entirety of the sex offender registration process since Smith v. Doe in 2003 when state attorney John Roberts essentially likened registration as intrusive as "filling out a Price Club application." Even then, this ruling was not unanimous and in fact was contentious, but with so many scienters (hmmm...another word unrecognized by the spellchecker on the legal blog) that point to punitive intent, it shows that there will be a lot of antagonism to changing the registry over time.

Posted by: Eric Knight | Jun 28, 2013 8:09:21 PM

All i can say is NO SHIT! Now if the fuckups at the Federal Lvl would get off thier fat lazy asses and realize the same thing!

What the USSC said was legal in 2002 has about as much relation to current sex offender laws as a model T does to a lambargini!

Plenty of State Supreme Courts have now decided this even Alaska you know one of the two to start the shit in the 2002 case!

They even plain out stated it. That the USSC fucked up! that it HAS become a retroactive punishment!

Posted by: rodsmith | Jun 28, 2013 9:42:30 PM


That John Roberts had his head where the sun don't shine! I never heard of anyone -

- getting arrested for filling out a Price Club Application,
- getting charged annually for filling out a Price Club Application,
- being limited where you can live for filling out a Price Club Application,
- being limited where you can work for filling out a Price Club Application'
- being limited in your familial associations for filling out a Price Club
- being visited by LE (US Marshalls - what a waste of money) for filling out a PCA,

I think the good Chief Justice lied through his teeth as a US Attorney and the SC swallowed it hook, line and sinker.

There used to be a saying that you can't polish sh-t, but our illustrious constitutional high priests keep going at it. The tangled web keeps getting more and more tangled.

Posted by: albeed | Jun 28, 2013 10:16:35 PM

Punishment is punishment, no matter how you look at it. When a group of people is singled out in our society, prohibited from living, working, and travelling wherever they want to go, this is punishment. Not regulation, but punishment. There are no lists for murder.
Should there be punishment? Yes, of course. But a lifetime of punishment, under the guise of regulation?
Murderers leave lasting and lifelong scars on their victims, as do drug dealers, home invaders, etc.

Posted by: Oswaldo | Jun 29, 2013 9:52:38 AM

now this is a good one Albeed!

"I think the good Chief Justice lied through his teeth as a US Attorney and the SC swallowed it hook, line and sinker."

Of course the USSC has had lots of practice as swallwoing the bullshit from the other branches of gov! going back to the 1949 decison that got us the "state secrets" excemption!

when the lieing sacks of shit claimed a b-52 that crashed was on a top secret mission testing experimental equipment. Fast forward to the late 1970's 80's and some new govt idiot unclassified shit load of documents from the 1940's including the MISSION log of the flight. Darn. No secret mission No experimental equpment. But lots of fraud and lies from the executive branch of the crimnal gov that now runs this country!

Posted by: rodsmith | Jun 29, 2013 12:45:14 PM

LOL was pretty sure you lawyer types wouldn't touch this one!

Getting too hard to lie with a straight face?

Posted by: rodsmith | Jun 30, 2013 11:09:39 PM

my ex wife had a Canadian Co court order to lower her tier level from a 3 to a 2. Ok DOC lowered it but kept her at level 3 provisions. She's a level 2 but has to abide by all level 3 rules. My children are suffering a life of no freedoms. She is not allowed to attend certain childhood activities and limited to where she may live. DOC told her to continue to register every 3 months for life and subject herself to polygraphs which she has passed with ease, and for her profile to remain on the internet. Will someone please help us break free from this? Please help my children get their lives back. Any advise is appreciated

Posted by: outforjustice | Jul 27, 2013 2:39:38 AM

Im not sure about every state. But, I know In my State the Registration laws are placed under the Criminal law books with other criminal crimes. If its Civil in nature, why are they not placed in Civil law books with other Civil Laws. Its obvious the intent was to be criminal in nature.. I asked an attorney this once, and he replied with open wide eyes and in shock. Good question!!! Something Im not willing to challenge to put My career on the line for, but valid point.

Posted by: johnsmith | Aug 7, 2013 10:33:40 PM

protected citizen
because of the registry I found out a man that I was going to go out with had been convicted of first degree rape and twice for aggravated sexual assault and kidnapping. He has multiple protective orders against him. I feel like the registry saved me from being his next victim.

Posted by: phyllis Dorsey | Sep 30, 2013 6:48:33 AM

Concerned citizen,
I have a really good friend waiting to be removed. He was a drug addict that made a poor deision at a party and did not check the i.d. of a girl he ended up having sex with. He has been clean for 15 years, is married with a son in grade school.
I can't believe that he is put in the same class with child molesters, assault rapists, kidnappers, and murderers of children! Him and his family cannot find a place to live legally as nobody will rent to him and his small family. What are people like this suposed to do? Not provide good housing for their children? Why does the child and wife have to suffer like that from the registration requirements that were passed years after his conviction and completion of sentence?
This really sickens me to the core!

Posted by: Waterfront Gypsy | Mar 1, 2014 7:10:58 AM

I am a parent of so called child who was arrested as a sex offender at the time he was 17 yrs old at the time which involved a girl who was 8 going on 9 yrs old. she admitted in a deposition that she made the whole thing up toward the end of her questioning but yet we were not allowed to present in either juvinille court at any time and my son had to serve 10 yrs of his life behind bars and be put on as the Level 3 status..if we have the paperwork showing this that the girl made this up, can the decision be reversed and/or be expunged or removed or even lower the Level so he can live remaining life and find place to live and work at a normal job and spend time with his family? any help on this would be greatly appreciated and grateful in this matter. thank you.

Posted by: Denise Wooley | Mar 12, 2014 6:45:19 PM

Many people have turned away from alcohol, drugs, or other addictions. They can say "I put that behind me years ago; I'm not that any more" and society supports their efforts to live a free life. Many convicted of sex crimes have been through therapy or a group treatment program, and have not re-offended in many years. They have a right to claim "I'm no longer a 'Sex Offender'" and not accept that label.

For a government to label a group of people with a criminal behavior is oppression. Calling someone a "sex offender" after he or she has completed a prison sentence and has shown a repentant heart, negatively affects that person. Placing lifetime stigmas on someone is vengeful and cruel. Where is their hope of redemption or their rights as a person? Everyone deserves the freedom to put the past behind and move forward.
Having been one of these offenders i know whats its like. I did nothing more then make out with a girl who was younger then i thought. The judge told me at sentencing that he was letting me just have probation vs normally required jail time because what i did was not what was normally required to be convicted of this crime.
10 years later i completed the stupid offender registration stuff. So Stupid to have to go every 90 days and have them take my pic again (like i change any in 90 days) fingerprint every time and can't live near a park, school or child care.
Just for those who think sex offenders don't change. Well its been almost 20 years now since this happened and I'm married now and have 2 kids and 1 dog 2 cats and a home. I started my own business several years ago its doing well and a year ago i started another business that is expanding all the time.
I don't touch any girls and i am glad to be off the sex offender list now for over 6 years. So this i find funny. 1 month i have to register and anyone knows who wants to that I'm some "bad person" but the month after i don't have to register anymore and I'm the same person but yet now i can live where i want and do what i want without being bothered.
Its very sad that society treats drug users and pushers and alcoholics so much different then it does sex offenders.
Im more concerned about a robber then a sex offender. I know that all people change. But someone who is a thief is a threat to anyone. Talk to your kids watch them or if you don't have any kids then a sex offender is not a threat to you.

Posted by: JJ | Apr 28, 2014 9:49:02 PM

My name is c bowes and in 2005 a 16 and 17 year old lied about there age and about me breaking in there home and rape by instrumentation and sexual assault. I was only in Oklahoma for a month visiting my mom I was 24. The only evidence was these 2 girls word and they got caught lying in court so they found me not guilty of burglary and sexual assault but found me guilty of rape by instrumentation. Wtf. As soon as I got out of prison they gave me a bus ticket right back to Virginia where I'm from and now have to register for life. I've never been in any major trouble in my life let alone a felony. My life is ruined cause of some teenagers word and they even got caught lying. What can I do now my conviction was was June 2005 which law do I have to a bide oklahoma or virginia

Posted by: charles bowes | Sep 23, 2014 6:18:13 PM

I'm glad to see this. The public has been hoodwinked about the need for over-reach with these laws. This was brought about by a drama-driven media, esp. Fox, overly zealous prosecutors who call these cases "easy wins" and a very small number of truly terrible abductions of children that were used to ignite a witch-hunt in the U.S. the likes of which we haven't seen since the 50's. MOST on the registry are not dangerous, especially not to young children...and anyone who knows anything knows this ! It's about time for some true justice with these laws. Quantity doesn't mean quality. Putting a majority of men (mostly) on this very public registry with a small number who may need to be on it doesn't make our neighborhoods and children any safer...it does , however, spread unnecessary fear and may incite more vigilanteism. It also may feed an increased number of false accusations against truly innocent men..and I know for sure this happens, even if there are those who don't want to believe it.

Posted by: PATRICIA W | Jan 28, 2015 3:03:47 PM

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