287 A.3d 237
D.C.2023Background
- In 1977 Hickerson (age 18) pled guilty to sodomy against a 10‑year‑old; he was sentenced under the Federal Youth Corrections Act (FYCA) and later released unconditionally.
- Many 1977 records are lost; Hickerson contends his FYCA conviction was set aside (a youth‑set‑aside/expungement device).
- The District enacted the Sex Offender Registration Act (SORA) in 2000, which defines a “sex offender” to include anyone who committed a registration offense at any time and is "in custody or under supervision" on or after July 11, 2000 (§ 22‑4001(9)(B)).
- In 2016 Hickerson pled guilty to misdemeanor heroin possession and received one year of probation, which put him “under supervision” and triggered CSOSA’s order that he register for life based on the 1977 sodomy conviction.
- Hickerson sought judicial review arguing (1) his 1977 conviction was set aside under FYCA and thus not a SORA registration offense, and (2) SORA’s retroactive application to persons who completed sentences before SORA’s enactment violates the Ex Post Facto Clause. The trial court denied relief; the D.C. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an FYCA set‑aside removes a conviction from SORA’s definition of a "registration offense" | Hickerson: FYCA set‑aside is functionally equivalent to a vacatur/expungement and so falls within § 22‑4001(3)’s exclusion for reversed/vacated convictions | Government: § 22‑4001(3) excludes only reversed, vacated, or innocence pardons; set‑aside is distinct and remains registrable | Held: Set‑aside is like an expungement that does not negate the fact of conviction; SORA’s text and legislative history show set‑asides remain registrable, so Hickerson must register |
| Whether applying SORA to persons who completed sentences and supervision before 2000 violates the Ex Post Facto Clause (as‑applied challenge / group‑based challenge) | Hickerson: Retroactive registration punishes those who completed sentences before SORA and thus is an ex post facto punishment | Government: SORA is a civil, regulatory public‑safety scheme; Smith and In re W.M. foreclose successful as‑applied challenges of this sort; Hickerson has not shown a broad class or that SORA’s effects are punitive | Held: No ex post facto violation. Court follows Smith and In re W.M. that registration is civil; the burdens on those who completed supervision before 2000 are not materially different, and Hickerson failed to substantiate a broad class |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (2003) (Supreme Court held sex‑offender registration is civil regulatory scheme and not ex post facto punishment)
- In re W.M., 851 A.2d 431 (D.C. 2004) (D.C. Court of Appeals applied Smith to SORA and rejected ex post facto and due process challenges)
- Seling v. Young, 531 U.S. 250 (2001) (limits on as‑applied attacks where highest state court has definitively construed statute as civil)
- Arthur v. United States, 253 A.3d 134 (D.C. 2021) (addressed viability of group‑based as‑applied ex post facto challenges post‑W.M.; required more than counsel’s assertion of a class)
- Lindsay v. United States, 520 A.2d 1059 (D.C. 1987) (FYCA set‑aside compared to expungement; does not erase the fact of conviction)