2theadvocate.com (Louisiana): Judges overturn sex offender rule.
Finally a sane court rules that these retro-active registration laws are indeed punitive in nature !
An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.
The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.
Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.
Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.
Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters. Driver’s licenses for sex offenders must be renewed annually.
The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.
The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.
In Smith’s case, however, the amendments adopted after his conviction are “so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him.”
The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says.
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This decision can be read here:
Case Numbers 2009 CA 1765 and 2009 CW 1169
JIMMY L SMITH VERSUS STATE OF LOUISIANA - March 26 2010
Excerpts:
"Based on the particular facts of this case we find that the application of the amended provisions of LaRS51454 as amended by 2007 La Acts No 460 and as amended by 2008 La Acts Nos 462 and 816 to Mr Smith is so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him. Louisiana Megan's Law has a legitimate civil purpose - to alert and protect the public from sex offenders who may offend again. The provisions of Megans Law were already imposed on complied with and fulfilled by Mr Smith. Thus the purpose of Megans Law has been served. To now impose additional time on Mr Smith duty to register after his duty had already terminated either for his lifetime or for an additional five years imposes a
significant affirmative obligation on him. Because Megans Law's non punitive purpose has already been served by Mr Smith's compliance with the statute, this new additional affirmative obligation is excessive in relation to Megans Law's non punitive purpose as it is being applied without regard to Mr Smith risk of re offending. Thus placing the burden on Mr Smith to re register as a sex offender for the duration of his life or for an additional five years after his duty to register had already terminated constitutes another punishment for his offense."
"Additionally requiring Mr Smith either for the duration of his lifetime or for an additional five years to re register as a sex offender and to comply with the community and public notification procedures would also impose a new financial burden on Mr Smith.
"An offender who serves the entirety of his sentence and upon release is subjected to a new financial burden that was not in place when he committed his crime is not merely subjected to a regulatory cost but rather an affirmative disability amounting to punishment."
"As we have concluded that the application of the amended provisions of La RS 51454 as amended by 2007 La Acts No 460 and as amended by 2008 La Acts Nos 462 and 816 transforms what was intended as a civil remedy into a punitive one for him thereby increasing the penalty by which his crime is punishable the retroactive application of those amendments to Mr Smith violates the United States and Louisiana constitutional prohibitions of ex post facto. Accordingly the judgment of the trial court ordering Mr Smith to register as a lifetime sex offender pursuant to the amended provisions of La SR 51454 is hereby reversed."
"Furthermore because we can find no statutory authority nor have we been directed to any other applicable statutory authority by which the State can command Mr Smith to reregister as a sex offender for the duration of his life or any further time period as Mr Smith has already fulfilled his duty to register as a sex offender for the requisite period of time under the provisions of former La SR 51454 applicable to his case we hereby render judgment prohibiting the State from enforcing the provisions of LaRS 51450 et seq against Mr Smith
with regard to the convictions for the two sexual offenses addressed herein."
