ROBERT L. ARTHUR, APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CF-5
DISTRICT OF COLUMBIA COURT OF APPEALS
July 1, 2021
Argued November 18, 2020
Nоtice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (CF3-18394-16)
(Hon. Truman A. Morrison, Motion Judge)
(Hon. Geoffrey Alprin, Trial Judge)
Bryan P. MacAvoy for appellant.
Chrisellen R. Kolb, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Elizabeth H. Danello, and Elizabeth C. Kelley, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and FISHER, Senior Judge.
We conclude that the alleged punitive effects that appellant cites either (i) are features of SORA or its implementing regulations that this court has previously considered in determining that the SORA scheme is civil and remedial, rather than punitive; or (ii) have been shown at best to be еffects “on [appellant as] a single individual”3
I.
SORA provides in pertinent part that any “person who lives, resides, works, or attends schools in the District of Columbia, and who: committed a registration offense at any time and is in custody or under supervision on or after July 11, 2000,” or “[c]ommitted a registration offense at any time in another jurisdiction and, within the registration period, enters the District of Columbia to live, reside, work or attend school[]” is a “sex offender” and must register under the statute and comply with periodic verification, reporting, and other requirements as estаblished by the Court Services and Offender Supervision Agency (“CSOSA“).
Individuals who have committed first or second-degree sexual abuse, assault with the intent to commit rape, or similar offenses under the law of any state are designated as “Class A” offenders, see
offender who knowingly violates any requirement of the Act “shall be fined not more than [$1,000], or imprisoned for not more than 180 days, or both.”
Appellant is subject to SORA‘s lifetime registratiоn requirement, having entered a guilty plea on October 22, 1991, in the Circuit Court of Maryland for Prince George‘s County to one count of second-degree rape5 and having come under supervision in the District of Columbia after July 11, 2000, and come to reside and work in the District of Columbia by 2008.6 SORA did not become law until nearly nine years after appellant‘s second-degree rape conviction.7
It appears from the record that appellant regularly updated his registration in the District during the period from April 2012 to April 2015, receiving and signing notices from CSOSA reminding him that he was to report “in person” to CSOSA to update his registration on a quarterly basis.8 In May 2015, however, CSOSA reported that appellant was in violation of his sex offеnder registration requirements. On November 9, 2016, Deputy Gregory Conner of the United States Marshals Service executed an arrest warrant for appellant at an apartment located at 1221 M Street N.W., where appellant‘s mother, Evelyn Arthur, resides. Appellant answered the door and was allowed to explain to his mother, who is hearing impaired, what the warrant was for. According to Deputy Conner appellant explained to his mother that “it‘s because I didn‘t register[,]” “it‘s not their fault, it‘s mine. I didn‘t register.” Appellant Arthur then stated to his mother that “I told them I‘m not going to register for something that happened over 20 years ago.”
On October 12, 2018, appellant filed his Motion to Dismiss the SORA failure-to-update-registration charge. He argued that requiring him to register and maintain registration under SORA violates the Ex Post Facto Clause because it amounts to increased punishment for his having committed a sex offense prior to SORA‘s enactment. He asserted that the SORA registration requirement has a punitive effect, to wit: (1) he was terminated from his employment in 2013 when his employer learned that he was required to register as a sex offender (an allegation as to which appellant provided no documentation); (2) his mother‘s application for appellant to serve as her live-in aide in her public housing unit was rejected, pursuant to
The Superior Court denied appellant‘s motion in a November 20, 2018, ruling. At the conclusiоn of the January 4, 2019, bench trial, the court found that appellant was a District of Columbia resident during the relevant period, that he “was required to register every three months” because of his status as a lifetime registrant, and that because “he did not do that [for the May 20, 2015, to November 9, 2016, period], ... he‘s guilty of this offense.”
II.
Under the Ex Post Facto Clauses of the Constitution, “[n]o... ex post facto Law shall be passed.”11 They prohibit “[r]etroactive application of a law that inflicts greater punishment than did the law that was in effect when the crime was committed.” W.M., 851 A.2d at 440.
As the Supreme Court explained in Smith, the framework for inquiry when it is claimed that a law is a forbidden ex post facto law is “well established.” 538 U.S. at 92. “If the intention of the legislature [in enacting the statute] was to impose punishment, that ends the inquiry.” Id.; that is, “[a] conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects[.]” Id. at 92-93. “If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, [the court] must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the legislature‘s] intention to deem it civil.” Id. at 92 (internal quotation marks omitted). And because courts “ordinarily defer to the legislature‘s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (citation and internal quotation marks omitted).
Under the Alaska law that the Supreme Court considered in Smith, if an individual “was convicted of an aggravated sex offense or оf two or more sex offenses, he must register for life and verify the information quarterly.” Id. at 90. The Court noted that Alaska made available on the internet the following information: the sex offender‘s name, aliases, address, photograph, physical description, motor vehicle information, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, and length and conditions of sentence, as well as a statement regarding
The Supreme Court observed that the Alaska legislature had expressed its objective in the text оf the Alaska statute, declaring that “sex offenders pose a high risk of reoffending,” identifying the purpose of the law as “protecting the public from sex offenders,” and determining that “release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.” Id. at 93. The Court found that “nothing on the face of the statute suggests that the legislature sought to create anything other than a civil ... scheme designed to protect the public from harm,” id., even though the statute‘s registration provisions were codified in the State‘s criminal procedure code, id. at 94. The Court found that “even if the objective of the [Alaska statute was] consistent with the purposеs of the Alaska criminal justice system, the State‘s pursuit of it in a regulatory scheme [did] not make the objective punitive.” Id.
The Court stated that in analyzing the effects of the Alaska statute, the most relevant factors are “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Id. at 97, 99-100. The Court reasoned that although the notification provision of the Alaska statute “resembles shaming punishments of the colonial period,” id., and notwithstanding the world-wide “geographic reach of the [i]nternet,” stigma is not “an integral part of the objective of the regulatory scheme” and “results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.” Id. at 97-99, 105. The Court further observed that “[i]f the disability or restraint [imposed by the regulatory scheme] is minor and indirect, its effects are unlikely to be punitive.” Id. at 100. In concluding that the effects of the Alaska statute were not punitive, the Court reasoned that the statute‘s obligations were “less harsh than the sanctions of occupational debarment, which [the Court had] held to be nonpunitive” and that the law did not “restrain activities sex offenders may pursue but leаves them free to change jobs or residences” and to do so without permission or supervision. Id. at 100, 101. Rejecting the reasoning that the effects of the Alaska statute were harsher than occupational debarment because the statute was likely to make registrants completely unemployable (given that “employers will not want to risk loss of business when the public learns that they have hired sex offenders“), the Court observed that “[l]andlords and employers could conduct background checks on the criminal records of prospective employees or tenants even with the Act not in force.” Id. at 100. The Court saw in the record “no evidence that the [statute had] led to substantial occupationаl or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords.” Id.
In addressing whether the Alaska statute imposed an affirmative disability, the Court observed that on its face, it did not require registrant updates to be made in person and that the record “contain[ed] no indication that an in-person appearance requirement ha[d] been imposed on any sex offender subject to the [statute].” Id. at 101. As to the “length of
The Court confirmed that a statute‘s “rational connection to a nonpunitive purpose” (such as public safety) is the “most significant factor in [a] determination that the statute‘s effects are not punitive.” Id. at 102. It explained, however, that a statute is “not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id. at 103. The question was not, the Court emphasized, “whether the legislature ... made the best choice possible to address the problem it s[ought] to remedy.” Id. at 105. “Alaska cоuld conclude,” the Court said, “that a conviction for a sex offense provides evidence of substantial risk of recidivism.” Id. at 103; see also id. at 103-04 (reasoning that where the regulatory restraint is a minor one such as registration and the posting of accurate information, the Ex Post Facto Clause does not preclude a State from dispensing with individual risk assessments and predictions of dangerousness, and making reasonable categorical judgments that, as a rule of universal application, “conviction of specified crimes should entail particular regulatory consequences“).
The Court also held that “[t]he [lifetime] duration of the reporting requirements is not excessive.” Id. at 104.
In W.M., this court applied Smith in determining whether SORA is punitive and whether its retroaсtive application therefore violates the Ex Post Facto Clause. See 851 A.2d at 440. We found it “clear and unequivocal” from the legislative history of SORA that the Council intended the SORA registration and notification requirements as “regulatory measures adopted for public safety purposes” rather than criminal punishment. Id. at 441. We concluded that “[t]he material registration and notification provisions of SORA ... are comparable if not identical to ... those of Alaska” and that Smith had settled the ex post facto issues presented: SORA does not inflict punishment. Id. at 435, 446.
III.
Appellant does not ask us to overturn SORA, but instead to determine “that SORA violates the Ex Post Facto Clause as applied to [him].” At the same time, he argues that SORA is based on a flawed premise about the risk of recidivism, is excessive with respect to its stated purpose, and fails to serve any nonpunitive purpose. Thus, notwithstanding the label appellant uses to describe his argument, he at least arguably is asserting a facial challenge to SORA as well as an as-applied challenge. See Doe v. Reed, 561 U.S. 186, 194 (2010) (“The label [a party gives to his challenge] is not what matters.“).13
There can be found in a number of court decisions language suggesting, incorreсtly we think, that Seling established that “ex post facto challenges cannot be brought on an as-applied basis.” People v. Tucker, 879 N.W.2d 906, 911 n.4 (Mich. Ct. App. 2015).15 A more precise description of the holding of Seling is that the Supreme Court “rejected the argument that a statute can be declared punitive ‘as applied’ to a particular person when the highest State court has already definitively construed the statute as civil.” In re Dutil, 768 N.E.2d 1055, 1065 (Mass. 2002).16 That is precisely the situation presented here; that is, this court,
the highest court of the District of Columbia, has already definitively construed
With this background, we proceed to consider appellant‘s (seemingly) facial and as-applied challenges. Insofar as appellant asks us to revisit our conclusion in W.M. that the facial features of the SORA scheme that he decries are so punitive as to negate the Council‘s remedial intent, we can agree that any record evidence about SORA‘s “necessary operation” different from the features that were before us in W.M., or any amendments to SORA or its implementing regulations since W.M. was decided, could warrant revisiting our conclusion there.17 Cf. State v. Williams, 952 N.E.2d 1108, 1112 (Ohio 2011) (considering claimed punitive (continued...)
effects of sex-offender registration law because “[t]he statutory scheme ha[d] changed dramatically” and “markedly” since the court earlier found that the registration process “imposed ... an inconvenience ‘comparable to renewing a driver‘s license‘“); Doe v. DA, 932 A.2d 552, 560-63 (Me. 2007) (remanding ex post facto challenge for further development of the record on the effects of the State‘s sex-offender registration law, because the law had been amended, and had become more restrictive, after an earlier State Supreme Court decision holding that it did not violate the Ex Post Facto Clause). But we are satisfied that neither circumstance obtains here. Since W.M. was decided, neither SORA nor its implementing regulations have been amended to add any of the requirements appellant complains of in this appeal.
Rather, the features of the SORA registration and notification scheme about which appellant complains are ones that we already considered in W.M. Appellant asserts that SORA‘s notification system is no longer passive; he highlights that private companies now send out sex offender alerts via email to individuals who may never have requested to receive that information. But in holding that SORA is not punitive and that its application to persons who committed sex offenses before it was enacted does not offend the Ex Post Facto Clause, 851 A.2d at 435-36, 446, W.M. recognized that SORA authorizes both passive and active notification to the public, id. at 437.18 We explained that we “do not ignore SORA‘s active notification provisions, but as with the provisions allowing CSOSA to require in-person interviews, . . . we do not assume that they will be abused[.]” Id. at 446 n.19. In addition, we recognized in W.M. that SORA “imposes registration requirements on sex offenders based on the nature of the offenses they committed rather than on an individualized assessment of their risk of recidivism,”19 id. at 436; that “SORA allows CSOSA to compel registrants to appear in person for verifications and periodic updates; and that CSOSA has exercised this discretionary authority,” id. at 444 n.16.20
These determinations made in W.M. answer appellant‘s claims about the facially “punitive” effects of the SORA statute and implementing regulations. We therefore are bound by W.M.‘s conclusion that notwithstanding “cogent” objections to SORA‘s effects “as stigmatizing, onerous, and unfair to former offenders who have rehabilitated themselves,” the ” ‘clearest proof’ hurdle” is not surmounted, id. at 443 — i.e., those effects neither “negate [the Council‘s] intention to establish a civil regulatory scheme” nor transform SORA‘s civil remedies into criminal penalties. Id. at 444.
Appellant argues that the requirement, imposed by CSOSA in implementing SORA, that he and other registrants report to the sex offender registry office in person to provide quarterly verification information is “still an open point” not considered in W.M. To the extent appellant intends this as a facial challenge to SORA, he must satisfy the standard for a facial challenge: i.e., he must show that the in-person verification requirement is punitive and excessive “in all its applications.” Tilley v. United States, 238 A.3d 961, 969 (D.C. 2020). We are unpersuaded that the in-person verification requirement meets that standard. The circumstances described in
At oral argument, counsel for the government seemed to concede that even after a decision by the highest court of a jurisdiction that a statute is civil, an as-applied ex post facto challenge might lie if the punitive effects are alleged to burden a broad class of sex-offenders. Appellant suggests that this is the circumstance here; he urges us to consider the “housing and employment restraints” he cites, much as the Sixth Circuit did before concluding that the Michigan sex offender registration statute “imposes punishment.” See Does 1-5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016).
Neither the government‘s concession nor Snyder helps appellant‘s cause.23 One of the effects of the Michigan statute that the Sixth Circuit graphically described (with the aid of a map of the extensive areas of Grand Rapids, Michigаn that the law rendered off-limits to sex offenders) is that Michigan‘s law so restricted where sex offenders may live, work, and loiter that “many of the [p]laintiffs have had trouble finding a home in which they can legally live or a job
where they can legally work.”24 834 F.3d at 698, 702. Appellant has not documented any such broad impact with respect to the effects of SORA that he emphasizes: his own job loss and his disqualification as a live-in aide for his mother, who lives in public housing.
As to appellant‘s asserted job loss, we begin by observing that appellant has not presented data about the impact of SORA on employment prospects for SORA registrants generally or for a broad category of
Likewise with respect to the evidence appellant has presented about his disqualification to reside in his ailing mother‘s public housing unit to assist her as a live-in aide. We acknowledge that this is a serious and regrettable restraint, but it is “only one incident,” Smith, 538 U.S. at 100, i.e., the type of idiosyncratic effect that cannot support a claim that SORA is punitive. See Seling, 531 U.S. at 262 (instructing that a court may not “[re]evaluat[e] the civil nature of an Act by referenc[ing] . . . the effect that [it] has on a single individual“); State v. Letalien, 985 A.2d 4, 17 (Me. 2009) (“The ex post facto prohibition is intended to act as a check on the exercise of legislative authority as it affects broad categories of persons, and is not intended to create an individual right to challenge a retroactive law based on the effect that the law has on each person‘s individual circumstances.“); McGuire v. Strange, 83 F. Supp. 3d 1231, 1250 (M.D. Ala. 2015) (“[I]diosyncratic effects cannot be used alone in upholding [an ex post facto] challenge.“). In other words, we may not decide this case based on how SORA‘s requirements have affected appellant in his particular circumstances involving his mother. As to the more general restraint that appellant‘s experience might be deemed to represent — appellant‘s exclusion from public housing because he is a lifetime SORA registrant — “[t]he touchstone of [our] inquiry,” Peugh v. United States, 569 U.S. 530, 539 (2013), is whether appellant‘s lifetime registration obligation creates “a significant risk of increasing his punishment [for his underlying sex offense],” Garner, 529 U.S. at 255. Appellant has not shown that lifetime registrants face a significantly increased risk of being unable to live in public housing, i.e., a risk that otherwise would not exist. Suffice it to say that the opportunity to live in public housing is severely limited even without SORA implications; according to the District of Columbia Housing Authority website, as of April 2020, the waitlist for public housing in the District was closed to new applicants with no scheduled time to reopen. https://webserver1.dchousing.org/?page_id=284#waitlist https://perma.cc/988V-GF2A.25
None of appellant‘s claims warrants revisiting W.M. or enables appellant to overcome this court‘s determination in that case that SORA is not punitive.
Wherefore appellant‘s failure-to-register conviction is
Affirmed.
Notes
CSOSA regulations provide that a sex offender has the option of returning the registration information form by mail or in person unless:
(1) The sex offender is also on probаtion, parole, or supervised release or otherwise must report to CSOSA, and CSOSA directs the sex offender to verify the registration information in person;
(2) CSOSA directs the sex offender to appear in person because the sex offender has previously failed to submit a timely verification or submitted an incomplete or inaccurate verification; or
(3) CSOSA directs the sex offender to appear in person for the purpose of taking a new photograph documenting a significant change in physical appearance or updating a photograph that is five or more years old.
Appellant cites statistics about the low recidivism rate of sex offenders, but relies on Department of Justice reports from 2003 that analyze data from earlier years. These reports were already extant when we held in W.M. that the rationale of Smith — that “a state reasonably ‘could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism’ that is sufficient without more to justify a regulatory response” — “applies with undiminished force” to SORA. W.M., 851 A.2d at 445-46.
We note further that the Superior Court record shows that in 2011 appellant was charged in the District with assault with intent to commit first-degree sex abuse (but accepted a plea offer under which he was allowed to plead guilty to felony contempt and escape). While we afford appellant the presumption of innocence as to the 2011 charge, the fact that his 1991 second-degree rape conviction was followed by his being charged in 2011 with assault with intent to commit first-degree sex abuse, prevents him from showing by the “clearest proof” (continued...)