Tuesday, September 25, 2018

Texas' reach-back sex offender laws breach plea agreements

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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