For some sex offenders, their deal with the state wasn’t really a deal

Piling on more punishment–will they get away with it? Texas, like many states, has amended its sex offense registry law multiple times, making it harsher. When they made changes lawmakers took pains to include individuals with past offenses, those who have already been sentenced. Piling on more punishment after-the-fact (“ex post facto”) is a constitutional no-no so legislators claim the registry is NOT punishment, merely a tracking scheme. Unfortunately courts often go along with this fiction and uphold registration laws. The registry is no slight matter, many of those living with a scarlet letter have been driven into poverty and homelessness. At the same time, the registry does not improve public safety.

Now a new wrinkle. Some Texans who got slammed with lifetime registration and other penalties AFTER they were sentenced and paid a price have stepped forward to argue that the state made a contract, tore it up and then forced them to be punished again, and this treatment is unconstitutional. 2,800 registrants are estimated to be in this terrible predicament. Good luck to those fighting to get their freedom back and all their legal eagles including Richard Gladden! Please click on the link below and read Eric Dexheimer’s richly detailed report for the Austin American-Statesman. Just in case I’ve included the full text. –Bill Dobbs, The Dobbs Wire

September 23rd, 2018

When the Beaumont police detective called him in 2014, Curtis wondered what the officer might want. His only run-in with the law had been half a lifetime ago.

In 1985, he had been charged with indecency with a child, his stepdaughter. Curtis, then 34, struck a deal with prosecutors. He would plead guilty, but if after 10 years he kept out of trouble, the conviction would go away. He paid his fees, performed his community service and attended sex offender counseling. The charge was dismissed in 1996.

Curtis said his crime stayed with him: “It never leaves me; it’s always in front of me.”

(The paper is not using his last name, because he is fighting to keep it private and it does not appear in court documents.) He kept a low, steady profile. Over the next three decades, he raised his three boys in the house in which he’s always lived. He worked at a nearby chemical plant until his retirement in 2009.

So the news from the detective was alarming. Despite the deal he’d cut with the state of Texas 30 years ago, Curtis was dismayed to learn that he now would have to register as a sex offender. His name, photo and details of his crime would appear on the state’s public website. He would need to check in with police regularly. The new rules, the detective informed Curtis, applied for the rest of his life.

Donnie Miller had struck a similar deal with Travis County prosecutors. In 1993, when he was 23, the Wimberley native was charged with sexual assault against a woman outside the Exposé gentleman’s club on South Congress Avenue. “I was young, and I was stupid, and I was drunk,” he said.

At his trial, the jury couldn’t agree on a verdict. Facing a second trial and owing more than $20,000 in legal fees from the first one, Miller, like Curtis, signed a deal with prosecutors.

In exchange for a guilty plea, his record would be cleansed if he stayed out of trouble for 10 years. Although he’d have to register as a sex offender for that decade, he said the lawyers assured him that his name would be removed after he successfully completed his probation.

With his plan to become a licensed paramedic derailed by his sex offender status, Miller built a career in sales. Court records show he did well enough that he was granted permission to exit probation early.

So he, too, was surprised to receive a phone call a year later informing him that, contrary to the terms of the deal he’d made a decade earlier, Texas had changed the rules. Whatever he had agreed to then was irrelevant. He would now be on the sex offender registry for life.

“If I’d known, why would I have taken a plea deal?” said Miller, now 48. “I would have borrowed the money for the retrial.”

Over the past 20 years, state and federal lawmakers have passed ever-stricter sex offense laws, requiring more people to be listed on public sex offender registries, typically for life. In some cases, the new laws have reached back to include those whose crimes occurred years before the statutes were enacted and contrary to the deals they struck with prosecutors.

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The U.S. Constitution prohibits new laws that pile additional punishments onto old crimes. In the past, government lawyers have successfully sidestepped that by arguing that retroactively requiring sex offenders to register for decades-old crimes is not really a punishment. Instead, they contended, it is merely a regulation that promotes public safety.

Now, however, at least four older sex offenders in Texas have floated a new argument that has earned early legal victories. They say the deals they agreed to in the past were essentially contracts between them and the state.

“I felt like it was a legally binding agreement with the district attorney’s office, the state,” said Miller.

By being forced to follow new terms that, in some instances, the men were specifically promised they would never face, “it’s the state of Texas reneging on their deal,” said Richard Gladden, an attorney specializing in sex offender laws.

A growing list

The number of registered sex offenders in Texas climbs by nearly a dozen every day. Although the state has created a legal path to get off the list, the number of successful applicants is inconsequential. Today, according to the Center for Missing and Exploited Children, which tracks lists in all 50 states, Texas’s sex offender registry includes about 100,000 people — 3.5 per 1,000 residents, considerably above the national average. The vast majority of its registrants are considered low risk.

Spurring the growth have been new laws requiring more sex offenders to be added to the list, for longer periods. Like most states, Texas has adopted a series of increasingly severe statutes, often in response to horrific, high-profile crimes against a child.

The state’s initial sex offender registration law, passed in 1991, applied only to those convicted of certain sex crimes. Two years later, Texas legislators passed another law requiring defendants who, like Curtis and Miller, had received so-called deferred adjudication deals for their sex crimes, to register as well.

The rules applied only to new offenders charged after the law passed. But in 1997, Texas expanded its sex offense laws again — this time reaching backward. Now, anyone who had been convicted of, or who received a deferred adjudication deal for, sex crimes since 1970 had to register as an offender on Texas’ public list.

The latest rules still limited the retroactive portion to offenders who were still in prison or on probation when the law passed. But in 2005, that clause was repealed when the Legislature decided to broaden Texas sex offense laws once again.

According to the new statute, no matter what state prosecutors had promised — or when or how many years the offender had been out of prison or off probation — every qualifying sex offender was ordered onto the state’s registry. Since 2006, the Texas Department of Public Safety has doubled the number of employees working on the registry and quadrupled their budget.

The law’s author, Ray Allen, a seven-term state representative from Grand Prairie who left the Legislature in 2006, said that wasn’t the goal. “At the time we were writing the laws, we were trying our best to find the really dangerous people,” he said. “And I think we threw the net way too wide. I’m not sure we got the right people. But we didn’t change the laws back.”

It is difficult to tally how many current registered sex offenders fall into the same category as the men arguing that Texas broke its word when prosecutors struck deals years ago that did not include the registration requirement, only to add it later. In a recent Texas Supreme Court filing, lawyers for the DPS warned that if Curtis won his case it would relieve “numerous other sex offenders of their duty to register.”

An American-Statesman analysis of the Texas registry identified just over 2,800 sex offenders who, according to the terms of their probation, were no longer required to register, yet remain on the list. Gladden said he suspected many of those fell into the same category as Curtis and Miller.

“I’ve had a lot of (similar) cases, and I’m just one lawyer,” added Scott Smith, an Austin lawyer who specializes in representing sex registrants.

A “profound” punishment

Jack Hearn qualified. Accused of sexually assaulting a young woman in 1992, he was offered a deal by the Tarrant County district attorney’s office: If he pleaded guilty, he would be on probation for five years, during which time he’d have to complete community service and pay fees and fines.

“They told me that after that, it’ll be as if nothing happened,” he said. “It’ll all go away. I thought that sounded good.”

But in 1998, just before he was to get off probation, Hearn said he received a call from his probation officer, who told him he needed to come in. “He told me I needed to get a mug shot and fingerprints,” Hearn said. “When I got there, he had some paperwork spread out on his desk. He told me it was for the sex offender registry and that I now had to register for the rest of my life.”

When Hearn objected, noting his plea deal specifically promised he’d be clear of all his obligations after probation, he said his officer shrugged. “He said, ‘Sign the son of a bitch, or I’m going to have you arrested.’”

When Texas passed its reach-back sex offender laws, “I was very surprised the Legislature made them retroactive,” said Keith Hampton, an Austin civil rights attorney who has studied the statutes. “A plea bargain is essentially a contract. If one side just changes the rules, you can’t have any sort of contract law for that.”

Texas wasn’t alone in expanding its sex offender statutes to include those who thought their social debt had been cleared years earlier. Most states passed laws that roped in offenders from old cases. Lawsuits protesting the laws violated the Constitution’s prohibition against additional punishments for old crimes began almost immediately.

That argument was effectively quashed in 2003, when the U.S. Supreme Court ruled that Alaska’s law retroactively requiring old sex offenders who’d completed their sentences to register was legal because the registry wasn’t intended to be punitive.

To Hearn that made little sense. Now 60 years old with a beefy physique that recalls his early career as a professional wrestler, he remembered an incident soon after he was released from probation when a factory he’d been working in as a contractor told him he was no longer permitted on the premises.

In 2006, he was arrested for failing to comply with the state’s sex offender requirements that, according to his plea deal, prosecutors promised he’d never be subject to. Hearn said he was living in Kerr County but spending a lot of time working in neighboring Kendall County, so police charged him with failing to notify them of a new home address. He was placed back on probation.

The registry continues to affect Miller’s life, as well. A facilities maintenance contractor, he cannot enter schools for work. Earlier this year, he was prohibited from entering an Army base. “And every Halloween, Comal County police show up at my house” for their annual sex offender compliance check, he said.

Recent studies have demonstrated the public lists can have severe consequences on registrants, from public shaming to restrictions on what jobs they can hold and limiting where they can live. Prosecutors concede they use the threat of registration as a bargaining chip in plea negotiations; defense attorneys say it often informs what deals their clients will accept.

“The punitive effects are profound,” said Jill Levenson, a professor at Barry University in Miami Shores, Fla., who has examined the registries.

“With most crimes, whether you steal something from the store or kill someone, there’s a line,” Hearn said. “There’s a beginning and an end. And whether you go to prison, or whatever, the line eventually ends. But with sex crimes, the line is written as a circle. It never ends.”

New studies bust perceptions

Sex offenders have long held a reputation as among the most dangerous and incorrigible offenders, feared and reviled by the public. For politicians, that has meant little risk in passing ever more restrictive laws and no appetite for dialing them back. Allen said he’s approached more than a dozen legislators in recent years to discuss dialing back the registration laws he authored, but “nobody has wanted to touch that.”

Yet since the Alaska decision, much of what policymakers thought they knew about sex criminals and the effectiveness of the laws used against them has been shown to be inaccurate. Research has demonstrated the claim such offenders were an especially dangerous variety of criminal — the Supreme Court called their recidivism rate “frightening and high” — is not accurate. Other studies suggest the registries have had little if any effect on public safety.

The updated findings have started appearing in court cases, and several states in recent years have eliminated their retroactive sex offender clauses. Court rulings in Maryland, Oklahoma, Pennsylvania and even Alaska, among others, concluded their reach-back registration laws unfairly stacked new punishments on those convicted before the laws existed.

In 2016, federal judges found Michigan laws passed in 2006 and 2011 that retroactively required old offenders to be placed on its sex offender registry were illegal. “As dangerous as it may be not to punish someone,” the justices found, “it is far more dangerous to permit the government … to punish people without prior notice.”

The states have since removed older offenders from their public registries.

Miller’s former prosecutor still remembers his case and the terms of the plea deal Travis County offered him. Making a case that Texas later violated the agreement “is an interesting argument,” said Maura Phelan, now an attorney in private practice. But, she added, “you can never anticipate what the Legislature is going to do.”

Besides, Phelan said, the government often changed laws to the detriment of citizens banking on earlier versions. Property owners who purchase a lot zoned for one use might feel they’ve been cheated if local lawmakers later make zoning more restrictive. Enforcement of immigration law shifts depending on the opinions of each presidential administration.

“When we passed the law, we must have been told by our legal counsel there was no legal issue,” added Florence Shapiro, who as a state senator from Plano sponsored the 2005 legislation. Now retired, she added she still strongly supported the expanded registry to include as many offenders as possible.

Still, the idea of old plea deals being reopened is worrisome enough that the Texas Criminal Defense Lawyers Association will file a brief supporting Miller’s and Hearn’s lawsuit, said Angela Moore, a San Antonio attorney who is writing it for the organization. She noted that 90 percent of criminal charges are disposed of with pleas: “By undoing them, the plea bargains aren’t worth the paper they’re printed on.”

Back in Beaumont, such broad policy concerns are far from Curtis’ mind. He said many of his family members remain oblivious of his single criminal act more than a generation ago.

“The biggest punishment you could put on him is for this to come out,” said his attorney, Ryan Gertz. “It would destroy everything he’s done with his life. He paid his price.”

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