An experienced attorney in the Denver, Colorado area explains how Ex Post Facto laws are inapplicable to sex offender registration requirements: simply put, the appellate courts do not view the registration requirement as a “punishment.”
People v. Sowell (Colo.App.2011)
Facts: In 1995, Mr. Sowell pled to sexual assault on a child – position of trust. At the time of his plea, the statute required Mr. Sowell to register until a court granted his petition to cease registering – an indefinite term. In 2001 and 2002, the legislature changed the registration requirements from indefinite to life-long registration. The trial court, bless its heart, granted Mr. Sowell’s motion to cease all registration. The prosecution appealed.
Issue: Whether the trial court exceeded its authority to grant Mr. Sowell’s petition to cease all registration requirements?
Reasoning: Essentially, Ex Post Facto clauses do not apply to registration requirements. Mr. Sowell argued detrimental reliance upon the statutory scheme at the time of his plea, and upon a notice he received prior to a plea. The Colorado Court of Appeals found the handwritten notice insufficient to rely upon. Further, regarding the statutory scheme, the appellate court interpreted this argument as an Ex Post Facto argument – sealing Mr. Sowell’s fate. The appellate court conceded, “Ex Post Facto Clauses forbid states from enacting laws which impose additional punishment to that which was prescribed at the time an act was committed.” See also Gasper v. Gunter, 851 P.2d 912, 913 (Colo. 1993). However, previously, the Colorado Court of Appeals had found statutes requiring registration do not mete out punishment and are, therefore, not violative of (or subject to) the Ex Post Facto provisions within the Constitution. See People v. Stead, 66 P .3d 117, 120 (Colo.App.2002); People v. Tuffo, 209 P.3d 1226, 1230 (Colo.App.2009).
***Commentary contributed by Eric Sims Jr., Esq.***