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Ex Post Facto

Sex offender registration and notification laws are meant to serve a regulatory function, and the majority of courts that have addressed the issue, including every circuit of the United States Court of Appeals, except the Federal Circuit, have held that sex offender registration is nonpunitive and/or a collateral consequence of a conviction. However, some courts have interpreted state registration and notification requirements to constitute punishment.[188] This interpretation impacts how courts analyze constitutional challenges to offenders’ duty to register, such as ex post facto challenges and challenges under the Fourth, Fifth, Sixth, and Eighth Amendments.

There has been extensive debate regarding whether the retroactive application of SORNA’s registration requirements violates the Ex Post Facto Clause of the U.S. Constitution, which prohibits the retroactive application of criminal laws.[190] Notably, all of the U.S. Court of Appeals—except the District of Columbia and the Federal Circuit, which have not addressed the issue—have held that the federal version of SORNA does not violate the federal Ex Post Facto Clause.

Retroactive application of state sex offender registration and notification laws has also been addressed at both the federal and state level, and while many state laws have been found not to violate state or federal ex post facto prohibitions, multiple state and federal courts have held that retroactive application of their state’s sex offender registration and notification laws violate their respective constitutions and/or the U.S. Constitution.

Ex post facto challenges often arise when an offender who was convicted prior to passage of SORNA is required to register or where a jurisdiction makes changes to its sex offender registration requirements resulting in an offender’s registration requirements beginning, or becoming more burdensome, after the offender has been sentenced,[194] where an offender’s classification is changed,[195] or when an offender’s information is made publicly available on a jurisdiction’s public registry.