Articles Posted in Sexual Offender Registration

Changes in the Maryland Sex Offender Registration laws are, as a Maryland Criminal Defense Attorney something I have to be aware of. I have represented many defendants over the years who have been charged with sex offenses. In these cases the defendant faces not only the prospect of criminal punishment of his conduct but also the possibility of being required to register as a sex offender. On October 1, 2010 the Maryland Sex Offender Registration Statute, (Criminal Procedure Code Ann, Section 11-704) which was rewritten to bring in line with the comparable Federal Statute, went into effect. The new rules now require those convicted of fourth degree sex offenses to register. The issue and the reason for this blog is that the new statute was specifically designed to apply retroactively.

This retroactive application is legally problematic and possibly Unconstitutional in my view in certain instances. The Court of Appeals has already approved retroactive increases in the term of registration in the case of Young v. State. The Court ruled that sexual offender registration did not expose the defendant to to a greater penalty but was instead a remedial requirement for the protection of the public.

The real questionable application of the new law, that in my view can be differentiated from a mere increase in the term of registration, is the imposition of a retroactive requirement to register on people who were convicted of fourth degree sex offense and were not originally ordered to register as a result of their conviction. ( Prior to the change in the law it was left to the discretion of the trial court as to whether to require registration for fourth degree sex offenses and it was rarely ordered).

In particular I think this application becomes even more problematic when retroactive registration is applied to a defendant who pled guilty to a fourth degree sex offense when a specific component of the guilty plea was that he or she would not be required to register. This application I believe deprives the defendant of the benefit of the bargain that he or she reached with the State and therefore renders the guilty plea retroactively involuntary. I have a client who is in this situation right now based on a plea she entered last year. Here are the facts:
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Many people with certain “old” convictions in other states often ask if he/she has a legal requirement to register in Maryland under the current sexual offender registration laws. As former prosecutors and current defense attorneys, we are very familiar with the issue. Often times persons who were required to register in other states are not required to register in Maryland.

Criminal Procedure Subtitle 7 Registration of Certain Offenders provides that citizens of Maryland do not have to register for offenses committed before July 1, 1997. This is also confirmed by case law. The statute specifically holds that out of state offenders who committed their offense before July 1, 1997 must still register. This provision treats out of state offenders differently then in state offenders violating Article IV, Section 2 of the Constitution. The Interstate Privilege and Immunities Clause.

If he had committed this act in the State of Maryland he would not have to register. This is discussed in the editors note to Criminal Procedure § 11-704.

“Section 4, ch. 754, Acts 1997, as amended by § 1, ch 21 Acts 1998, and as amended by ch. 317, Acts 1999, provides that “except as provided in §§ 5 and 6 of this Act, this Act shall be construed only prospectively to apply to offenses that are committed on or after July 1, 1997, and may not be applied or interpreted to have any effect on or application to any individual who commits an offense before July 1, 1997.”

This position was also affirmed by the Court of Special Appeals. “A court cannot require a defendant to register in accord with former Art. 27 § 792 where all the acts in question took place before the effective date of the law. Maslin v. State, 124 Md. App. 535, 723 A.2d 490 (1999)

§ 11-704 Section 5 specifically excludes out of state convictions.

“Section 5, ch 754, Acts 1997, as amended by ch. 317, Acts 1999, provides that “a child sexual offender who is subject to the requirements of chapter 142 of the Acts of the General Assembly of 1995 and who committed the sexual
offense before October 1, 1997, is subject to the requirements of this act.”

This creates the position that if you committed your act in Maryland before July 1, 1997 you don’t have to register, but if you committed your offense outside of Maryland you have to register.
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