Over the past 20 years, state and federal lawmakers have
passed ever-stricter sex offense laws, requiring more people to be listed on
public sex offender registries, typically for life. In some cases, the new laws
have reached back to include those whose crimes occurred years before the
statutes were enacted and contrary to the deals they struck with prosecutors, reported the Austin American-Statesman.
The U.S. Constitution prohibits new laws that pile
additional punishments onto old crimes. In the past, government lawyers have
successfully sidestepped that by arguing that retroactively requiring sex
offenders to register for decades-old crimes is not really a punishment.
Instead, they contended, it is merely a regulation that promotes public safety.
By being forced to follow new terms that, in some instances,
the men were specifically promised they would never face, “it’s the state of
Texas reneging on their deal,” said Richard Gladden, an attorney specializing
in sex offender laws.
The number of registered sex offenders in Texas climbs by
nearly a dozen every day. Although the state has created a legal path to get
off the list, the number of successful applicants is
inconsequential. Today, according to the Center for Missing and Exploited Children,
which tracks lists in all 50 states, Texas’s sex offender registry includes
about 100,000 people — 3.5 per 1,000 residents, considerably above the national
average. The vast majority of its registrants are considered low risk.
Spurring the growth have been new laws requiring more sex
offenders to be added to the list, for longer periods. Like most states, Texas
has adopted a series of increasingly severe statutes, often in response to
horrific, high-profile crimes against a child.
The state’s initial sex offender registration law, passed in
1991, applied only to those convicted of certain sex crimes. Two years later,
Texas legislators passed another law requiring defendants who, like Curtis and
Miller, had received so-called deferred adjudication deals for their sex
crimes, to register as well.
The rules applied only to new offenders charged after the
law passed. But in 1997, Texas expanded its sex offense laws again — this time
reaching backward. Now, anyone who had been convicted of, or who received a
deferred adjudication deal for, sex crimes since 1970 had to register as an
offender on Texas’ public list.
The latest rules still limited the retroactive portion to
offenders who were still in prison or on probation when the law passed. But in
2005, that clause was repealed when the Legislature decided to broaden Texas
sex offense laws once again.
According to the new statute, no matter what state
prosecutors had promised — or when or how many years the offender had been out
of prison or off probation — every qualifying sex offender was ordered onto the
state’s registry. Since 2006, the Texas Department of Public Safety has doubled
the number of employees working on the registry and quadrupled their budget.
The law’s author, Ray Allen, a seven-term state
representative from Grand Prairie who left the Legislature in 2006, said that
wasn’t the goal. “At the time we were writing the laws, we were trying our best
to find the really dangerous people,” he said. “And I think we threw the net
way too wide. I’m not sure we got the right people. But we didn’t change the
laws back.”
It is difficult to tally how many current registered sex
offenders fall into the same category as the men arguing that Texas broke its
word when prosecutors struck deals years ago that did not include the
registration requirement, only to add it later. In a recent Texas Supreme Court
filing, lawyers for the DPS warned that if Curtis won his case it would relieve
“numerous other sex offenders of their duty to register.”
An American-Statesman analysis of the Texas registry
identified just over 2,800 sex offenders who, according to the terms of their
probation, were no longer required to register, yet remain on the list. Gladden
said he suspected many of those fell into the same category as Curtis and
Miller.
“I’ve had a lot of (similar) cases, and I’m just one
lawyer,” added Scott Smith, an Austin lawyer who specializes in representing
sex registrants.
When Texas passed its reach-back sex offender laws, “I was
very surprised the Legislature made them retroactive,” said Keith Hampton, an
Austin civil rights attorney who has studied the statutes. “A plea bargain is
essentially a contract. If one side just changes the rules, you can’t have any
sort of contract law for that.”
Texas wasn’t alone in expanding its sex offender statutes to
include those who thought their social debt had been cleared years earlier.
Most states passed laws that roped in offenders from old cases. Lawsuits
protesting the laws violated the Constitution’s prohibition against additional
punishments for old crimes began almost immediately.
That argument was effectively quashed in 2003, when the U.S.
Supreme Court ruled that Alaska’s law retroactively requiring old sex offenders
who’d completed their sentences to register was legal because the registry
wasn’t intended to be punitive.
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