Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

Tougher amendments to New York State’s sex offender registration law made years after a defendant pleaded guilty to a misdemeanor do not violate the Ex Post Facto Clause of the U.S. Constitution, the U.S. Court of Appeals for the Second Circuit said Monday.

The Second Circuit rejected an as-applied challenge to the 2006 amendments to the New York State Sex Offender Registration Act (SORA), saying the changes, passed seven years after the offender pleaded guilty to an offense involving child pornography, did not violate the constitutional prohibition against increasing the punishment for a crime after it has been committed.

The 2006 amendments to New York Corrections Law §168-h and §168-o, respectively, extended the registration requirement for “level-one” sex offenders from 10 years to 20 years or more, and barred defendants from petitioning for relief from having to register. The appellant John Doe in Doe v. Cuomo, 12-4288-cv, claimed these two major changes, coupled with other smaller adjustments by the Legislature, made SORA a punitive statute as applied after-the-fact to him.

See appellate briefs filed by Doe and the government.

Doe was arrested in 1999 for possessing six images of child pornography. He pleaded guilty under a plea agreement in Queens County Criminal Court to one count of attempted possession of sexual performance of a child, which is a Class A misdemeanor.

Doe was given three years probation and designated a level-one sex offender, which obligated him to register his whereabouts for a 10-year period—but he was told by the court he was free at any point to petition for relief from the requirement.

Doe complied for 10 years and petitioned for relief in 2009, asking the Queens court to strike his name from the sex offender registry and enjoin the New York State Division of Criminal Justice Services (DCJS), from publishing his identity to other government entities or the public.

After he was denied relief, Doe sued Gov. Andrew Cuomo and the Commissioner of DCJS in 2011 in the Eastern District, claiming the amendments violated the Ex Post Facto Clause, as well as constituting violations of substantive and procedural due process.

Eastern District Judge Carol Amon granted summary judgment for the state in September 2012 and Doe appealed to the circuit, where oral argument was heard by Judges Pierre Leval, Peter Hall and Raymond Lohier on Sept. 25, 2013.

‘Regulatory’ Changes

Writing for the panel Monday, Lohier said the circuit long ago rejected the notion the registration and notification requirements were punitive in nature, Doe v. Pataki (Doe 1), 120 F.3d 1263 (1997).

Here, Doe argued his case should be distinguished from Doe 1 because the 2006 amendments had the cumulative effect of turning SORA into a punitive measure. Along with the major changes in the law, Doe also targeted an amended notification provision which allows the public to have free telephone access to the registry.

But Lohier said that, despite the 2006 changes, SORA remained “regulatory” in nature.

“SORA’s notification provisions retain the key features we cited in Doe 1 as evidence of the Act’s nonpunitive nature: (1) the calibration of notification requirements to the offender’s perceived risk of re-offense; (2) the regulation of public access to, and limitations on, dissemination of registrant information; and (3) the protections against misuse of information,” Lohier said.

Lohier said the state still can only disseminate the information to “entities with vulnerable populations,” but it cannot pass the information on to neighbors, employers, landlords or the media, and law enforcement is banned from releasing an offender’s exact address.

The legislative history, Lohier said, shows the intent was not to punish, but to allow law enforcement to release information to entities with vulnerable populations “out of a concern for public safety.”

“[T]hat is a far cry from posting the information on the Internet for all to see—a practice that the Supreme Court held was nonpunitive” in Smith v. Doe, 538 U.S. 84 (2003), he said.

On the extended 20-year registration period, he said “the amendments reflect the same calibration of registration burdens to risk classification that we found persuasive in Doe 1.”

Doe also targeted an amendment requiring level-one offenders to report in person to be photographed and fingerprinted every three years, instead of registering in writing.

But Lohier said this provision, like the others, “reflects a reasonable legislative judgment, developed since SORA’s enactment, that the regulatory aims of protecting public safety and facilitating law enforcement are better served by ensuring that all level-one offenders remained registered for twenty rather than ten years.”

The court had little trouble disposing of Doe’s due process arguments, including his claim that SORA violates his “rights to privacy in intimate affairs, privacy of personal information and freedom of movement and travel.”

SORA denies insurance coverage, both public and private, for drugs, procedures or supplies for the treatment of erectile dysfunction to individuals required to register as sex offenders.

Doe’s lawyers argued in their brief that the prohibition “bears no relationship to registrable offenses that include no actual sexual activity, such as attempted possession of child pornography,” and it unjustifiably “burdens Mr. Doe’s well-established right to engage in perfectly legal sexual conduct, including sexual activity within the marital relationship.”

But even assuming that the SORA provisions on insurance or health benefits for erectile dysfunction “implicate Doe’s privacy rights to intimate affairs,” Lohier said, “Doe failed to allege any injury as result of those provisions, and no injury may reasonably be inferred.”

Zachary Margulis-Ohnuma, who along with Norman Siegel of Siegel Teitelbaum & Evans represented Doe on the appeal, said he is weighing a petition for a writ of certiorari to the Supreme Court.

“This guy was explicitly promised he would be done in 10 years and that he could come back and petition the court at any time,” Margulis-Ohnuma said Monday. “He had a plea agreement and he made a promise and he kept it. The state made a promise, and it violated that promise.”

“I think that violates due process,” he said. “This guy is a poster boy for overreaching by the state— he is completely, utterly harmless and, to me, it’s stunning that the Second Circuit said it doesn’t matter that he’s harmless.”

Assistant Solicitor General Valerie Figuerdo and Deputy Solicitor General Richard Dearing represented the state.