What does Ex Post Facto Mean? Article I Section 10 of the United States Constitution states in part: “[n]o state shall… pass any… Ex Post Facto law.” The Ex Post Facto Clause prevents the enactment of any state law which imposes punishment for an act which was not punishable at the time it was committed, or imposes additional punishment than that required at the time of conviction. History of the Tennessee Sex Offender Registry Enacted in January 1995, Tennessee’s Sexual Offender Registration and Monitoring Act began as a confidential law enforcement only database. This original Sexual Offender Registry did not require any in-person reporting and only required the confidential reporting of cursory information about an offender. Additionally, after ten years, an offender could petition to be removed from the registry. Since its enactment, Tennessee’s Sex Offender Registry laws have been amended countless times. Each Amendment applies retroactively by statute and imposes a new set of requirements that impact every part of an offender’s life. Sucessful Ex Post Facto Cases Several recent Federal cases demonstrate the court’s willingness to revisit and find that the registration requirements imposed by the Tennessee Sex Offender Registry violate the Ex Post Facto Clause of the U.S. Constitution. Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) This Sixth Circuit Court of Appeals opinion found that Michigan’s Sex Offender Registry Act imposes punishment retroactively and, as such, violates the Ex Post Facto Clause. Doe v. Rausch, 382 F. Supp. 3d 783 (E.D. Tenn. 2019) The Court found that the 2014 Amendment to the Tennessee’s Sex Offender Registry violated the Ex Post Facto Clause as applied to Doe. The Court summarized, “the actual effect of lifetime compliance with the Act is punitive… The Act has limited where he can live, work, gather with family, and travel…” Doe v. Rausch, No. 3:17-CV-504, 2020 WL 2495805, at *1 (E.D. Tenn. May 14, 2020) The Court again found both the 2004 and 2014 amendments to Tennessee’s Sexual Offender Registry violate the Ex Post Facto Clause as applied to Doe. Doe #1 v. Lee, 518 F. Supp. 3d 1157 (M.D. Tenn. 2021) The Court refused to find that “’every retroactive application’ of SORA is unconstitutional under the Ex Post Facto Clause.” However, following the prior decisions, the Court held that the “effect of lifetime compliance with SORA is punitive as to Plaintiffs in regards to its public classification and its reporting obligations. . . all of the factors (and subfactors) concerning punitive effect lean in favor of Plaintiffs on their as-applied challenge. Perhaps the Court would reach a different result were the compliance requirements not lifelong.” Other factors that play a significant role in determining whether you may be granted relief from the Registry because of an Ex Post Facto violation include: Whether or not you have been substantially compliant with the sex offender registry; Age of the victim; Your specific crime of conviction; Any subsequent convictions; Your specific plea agreement; and Your registry status in other states. Do I have a good Ex Post Facto case? Determining if Tennessee’s Sex Offender Registry violates your rights against Ex Post Facto laws is a highly fact-intensive inquiry. You must start by looking at the version of the registry that was in place at the time of your conviction and determine what requirements have since been imposed. This area of law is emerging, complicated, and confusing. You need the assistance of a law firm that understands Tennessee Sexual Offender Registry laws and the recent litigation taking place in Federal Courts. We do, and we believe there is reason to hope that these draconian laws will soon change in Tennessee.
What is the difference between the Tennessee Sex Offender Registry and Community Supervision for Life? The Tennessee Sex Offender Registry restricts where individuals placed on the registry can live, work, and engage in daily activities after being found guilty of certain sexual offenses. Community Supervision for Life (CSL) is an additional punitive aspect of a defendant’s sentence when they are found guilty of certain sexual offenses. CSL is effectively identical to sex offender supervision for someone that is on probation or parole, and results in the offender being closely monitored by the Tennessee Department of Corrections. Individuals on CSL are also required to participate in sex offender treatment and complete a relapse prevention plan before being discharged from treatment. Although the Registry and CSL are completely different, anyone on CSL will also be required to be on the Registry. However, being on the registry does not mean someone is on CSL. THE REGISTRY Certain offenses require an individual to be placed on TN’s Sexual Offender Registry. Below is a list of offenses that result in a person being classified as a “Sexual Offender” on the registry. Sexual Battery Statutory Rape Aggravated Prostitution Sexual Exploitation of a Minor False Imprisonment of a Minor Kidnaping of Minor Indecent Exposure (upon third offense) Solicitation of Minor Spousal Sexual Battery Aggravated Statutory Rape Soliciting Sexual Exploitation Promotion of Prostitution Patronizing Prostitution where victim is a minor Observation Without Consent (upon third offense) Unlawful Photographing if an E or D Felony Unlawful Photographing when a misdemeanor if judge orders defendant to register Aggravated Unlawful Photography Sexual Contact with Inmates Sexual Abuse of a Corpse *Any Attempt, Solicitation, or Conspiracy, Criminal Responsibility, or Facilitation to commit any of the above offenses Individuals on the registry are classified as violent sexual offenders if they are found guilty of the following crimes: Aggravated Rape Rape Aggravated Sexual Battery Rape of a child & Aggravated Rape of a child Attempt to commit rape Aggravated Sexual Exploitation of a minor & Especially Aggravated Sexual Exploitation of a minor Aggravated Kidnapping where victim is a minor & Esp. Aggravated Kidnapping where victim is a minor Sexual Battery by an authority figure Solicitation of a minor if B or C felony Criminal Exposure to HIV Statutory Rape by an authority figure Spousal Rape & Aggravated Spousal Rape Incest Aggravated Prostitution if on or after July 1, 2010 Trafficking for a Commercial Sex Act Promotion of Prostitution if two or more convictions Continuous Sexual Abuse of a Child **Any Attempt, Solicitation, or Conspiracy, Criminal Responsibility, or Facilitation to commit any of the above offenses Once an individual is placed on the registry, they must: Register their home address within 48 hours of release from jail or prison. Register home address within 48 hours of being placed on probation or any alternative to incarceration. Register any places of employment, and update changes in employment within 48 hours of a material change in employment. Register any email addresses, social media accounts, and any online chat or communication accounts within 3 days of changing any email or social media accounts Once an individual is placed on the Registry they cannot: Reside within 1000 feet of the property line on which the offender's former victims or the victims' immediate family members reside. Come within 100 feet of any of the offender's former victims. Transport students to and from a school or day care, or attend any activities at a school or day care, unless: You are a student; or You are dropping off your own children or attending conferences, with written permission; and The offender’s minor victim is not enrolled in that school or day care Live with any minors, if the offender’s victim was a minor. Offender can live with their own biological children, unless: Parental rights have been terminated. Any minor or adult child of the offender was a victim; or Any victims of the offender were under the age of 12 and a circuit court has found by clear and convincing evidence that the offender presents a danger of substantial harm to the minor What happens if someone violates these restrictions or requirements? If an individual violates a registry restrictions or requirement, they will be charged with a class E felony. If convicted, the sentence can range from a mandatory minimum of 90 days in jail or up to 2 years in jail for the first offense. Can someone ever come off the registry? Whether someone can be removed from the registry is not a simple yes or no answer. In some cases, an individual can be removed from the registry ten (10) years after their sentence is completed. Meaning, if someone completed probation on January 1, 2015, they may be eligible for removal on January 1, 2025. However, if someone is convicted of a crime against children (wherein the victim is age 12 or under), or if they are convicted of a violent sexual offense, they are required to remain on the registry for life. If someone with an out of state sexual offense conviction moves to Tennessee, they must be on the registry in Tennessee for ten (10) years following the completion of their sentence or five (5) years after first being added to Tennessee’s registry, whichever is longer. However, if the registrant’s out of state conviction is equivalent to a violent sexual offense in Tennessee, or if the victim was twelve (12) years of age or younger, they must remain on Tennessee’s registry for life. COMMUNITY SUPERVISION FOR LIFE Community Supervision for Life (CSL) is a type of supervised release imposed upon individuals convicted of Rape, Aggravated Rape, Aggravated Sexual Battery, Rape of a Child, Aggravated Rape of a Child, Continuous Sexual Abuse of a Child, or Aggravated Human Trafficking (along with the attempt or facilitation of any of those offenses). Generally speaking, in order to be subject to CSL, an individual’s judgment order must contain language placing them on CSL. Is Community Supervision actually for life? No. CSL begins as soon as an individual is released from incarceration or parole supervision. However, individuals on CSL can request removal fifteen (15) years after the completion of their underlying their sentence, so long as they have not been convicted of any other crimes during the fifteen (15) year period. If someone has no other criminal convictions while on CSL, they can petition to be released. After the petition is filed, the District Attorney’s Office will conduct a background check. Once they confirm there have been no convictions while on CSL, the individual must have a psychosexual exam performed by a licensed provider approved by the sex offender treatment board. The next step is to have a hearing in front of the original sentencing judge on the request for removal from CSL. If, on the other hand, someone has been convicted of further criminal offenses during the time they are on CSL, they can and should still go through the steps above. However, they will be denied a hearing on their petition. After their denial, they can refile their petition for removal in three years. It is very important to try, even if you know you will be denied, because then the three-year clock starts running. What is required of me if I am on CSL? An individual on CSL is required to be under the supervision, jurisdiction, and control of the TN Department of Corrections. As part of this supervision, the individual will comply and follow any rules deemed necessary by the department of corrections, including sexual offender treatment. Some of the requirements are the following: Limited internet use and access as well as providing supervising officers with an inventory of internet capable devices and allowing them to search those devices. Submitting to and paying for polygraph assessments. If convicted of an offense against a minor, no entering into a contact, dating, befriending, or residing with anyone under the age of 18 unless the children are the individual’s biological children. No contact with someone who cannot give consent due to mental, physical or emotional limitations without an approved chaperone present. There are also other, non-sex offense probations rules such as no drugs, no bars, no guns, etc. that still apply. Does the Registry still apply? If an individual is on CSL then they are also on the registry and must also comply with the requirements of the registry as a condition of their CSL supervision. Contact the experienced criminal defense attorneys at Ryan C. Davis Law, PLLC for assistance with Community Supervision for Life or TN Sexual Offender Registry issues.