DOES THE TENNESSEE SEX OFFENDER REGISTRY'S RETROACTIVE APPLICATION VIOLATE YOUR CLIENT'S RIGHTS?
History: Since its inception, the Tennessee Sex Offender Registration Act has been generally characterized as a civil regulatory scheme (as opposed to a punishment), and therefore, mandatory compliance with the Act has been deemed a “collateral consequence” of a guilty plea. This means that courts did not have an affirmative duty to make defendants aware that the offenses to which they were pleading guilty (or of which they were being convicted) could ultimately land them on the sex offender registry. Ward v. State, 315 S.W.3d 461 (Tenn. 2010), remains binding authority. However, the SORA has been amended, expanded, and applied retroactively many times over the decade since Ward. Critically, the Ward court noted that the sections of the SORA applicable only to those whose victims were minors are “more extensive” and “not subject to review in the case at bar.” Only the mandatory sentence of lifetime supervision was held to be punitive consequence, as opposed to a "collateral consequence," triggering the court’s affirmative duty to inform the defendant prior to accepting the guilty plea.
Since 2018, the Sixth Circuit, Tennessee federal district courts, and Tennessee appellate courts have found or indicated that, at least in some circumstances, retroactive application of SORA requirements to a criminal defendant is a direct and punitive consequence of conviction. “[W]hat began in 1994 as a non-public registry maintained solely for law enforcement use, see Mich. Pub. Act 295, § 10 (1994), has grown into a byzantine code governing in minute detail the lives of the state's sex offenders.” Does #1-5 v. Snyder, 834 F.3d 696, 697 (6th Cir. 2016); cited in Judge Holloway’s concurring opinion in Matthew B. Foley v. State of Tennessee, M2018-01963-CCA-R3-PC. In assessing whether the SORA’s requirements are punitive in nature, courts ask:
Does the law inflict what has been regarded in our history and traditions as punishment?
Does it impose an affirmative disability or restraint?
Does it promote the traditional aims of punishment?
Does it have a rational connection to a non-punitive purpose?
Is it excessive with respect to this purpose?
Tennessee Federal and appellate courts have finally begun to recognize that placing someone on the sex offender registry is, in fact, a punishment. Additional punishment after a conviction is a violation of the state and federal constitutional prohibitions on ex post facto laws. The punitive naure of the SORA may be obvious to those forced to comply with the "byzantine" code, but judicial willingness to recognize the validity of this argument is new. This shift presents an opportunity for those who were thrown onto the registry after their convictions to attack the State's application of the Sex Offender Registration Act to them.
Assessing Viable Claims
How can you assess whether your client may have a claim that either the SORA as a whole, or at least the residential living and working restrictions, are unconstitutional as applied to him? Ascertain answers to the following questions:
When was the client convicted?
Was the victim a minor?
Was the client “added” to the registry after conviction by operation of law?
Was application of the SORA explicitly mentioned during the client’s plea hearing?
With the answers to these questions, you can then map out the historical versions of the SORA, ascertain when more onerous restrictions were imposed on the client, and evaluate the case.
Categories of Viable Claims
The strongest prototypical case is where a client was convicted of a sex offense against a minor prior to 1994, and has since been forced to comply with the registry. This is the type of case where appellate and federal courts are likely to find an ex post facto violation.
Any case where a client was convicted of an offense against a minor prior to 2004 is likely to possess a viable claim for an ex post facto violation, as the residential living and working restrictions (T.C.A. 40-39-211) were first imposed in 2004.
Any case where a client was convicted of an offense (that did not require SORA compliance at the time of conviction) and was retroactively forced to comply with the “general” SORA is somewhat likely to maintain a viable claim, but much less likely than one whose “victim was a minor.”
Any case where a client was explicitly advised during his plea colloquy about avoiding the SORA, or of only temporary application of the SORA, is likely to have a claim similar to the Foley v. State claim based on a due process violation. The mechanism by which one could bring this claim could be either a post-conviction case or it could be a civil rights claim for an “unconstitutional as applied” due process violation.
We have successfully litigated claims related to these issues, including the February 27, 2020, Foley v State. For clients who have been subjected to retroactive applicaiton of the Sex Offender Registration Act, a "light at the end of the tunnel" is visible through the recent opinions concerning these issues.