The Oklahoma Supreme Court ruled this week that applying sex offender registration rules retroactively violates the ex post facto clause of the state constitution.
In Starkey v. Oklahoma Department of Corrections, a convicted sex offender appealed to the state Supreme Court to have his sex offender risk level lowered and to have his name removed from the Oklahoma Sex Offender Registry after the expiration of his original term.
James M. Starkey, Sr., pleaded no contest to the 1997 sexual assault of a 15-year-old girl in Texas. In 1998, he was given a 10-year deferred sentence and ordered to register as a sex offender in Texas. Starkey moved to Oklahoma in 1998 and was thus subject to Oklahoma sex offender registration rules. He was required to register as a sex offender for a period of 10 years.
In 2007, shortly before Starkey’s registration period was set to expire, state legislators passed an amendment to the Oklahoma Sex Offender Registration Act which would require a risk-level assessment for all convicted sex offenders subject to the Act. This level would determine the length of time an offender would be required to register: 15 years, 25 years, or lifetime registration. Based on the Oklahoma equivalent of Starkey’s Texas offense, he was designated a Level 3 sex offender. The Department of Corrections notified him that, as a Level 3 sex offender, he would now be required to register for life, even though state law at the time of his offense and his move to Oklahoma only required 10 years.
Starkey made several arguments against his sex offender risk-level assignment and the extension of his registration period. Among them, he argued that he never should have been required to register as a sex offender in Oklahoma at all, because state law at the time said only that those convicted in other states had to register upon moving to Oklahoma. Starkey, because he received a deferred sentence, was never convicted of a sex offense. Furthermore, he argued, his level assessment was applied without a hearing, without due process, and without recourse to challenge the risk-level assignment. Finally, the 2007 laws which assigned him a risk-level and extended his registration from 10 years to life were applied to him retroactively, violating the ex post facto clause of the Oklahoma constitution.
The court’s 6-2 decision in Starkey v. Oklahoma Department of Corrections said that a 2007 amendment to the Oklahoma Sex Offender Registration Act was intended to be applied prospectively rather than retroactively. In its decision, the court noted wording in the legislation that designated its prospective intent:
“Before a person, who will be subject to the provisions of the Sex Offenders Registration Act, is due to be released from a correctional institution, the Department of Corrections shall determine the level of risk of the person to the community using the sex offender screening tool developed or selected pursuant to Section 26 of this act, and assign to the person a numeric risk level of one, two, or three.” (57 O.S. § 582.1)
This language, “will be,” which shows intent for the law to be applied prospectively, and does not show clear intent for retroactive application, continues throughout subsequent sections.
The court further ruled that while sex offender registration has a civil, non-punitive intent, it is, in fact, punitive in effect. Punitive effects of sex offender registration include:
- Restrictions on where a person may live
- Restrictions concerning with whom a person may live
- Preclusion from specific occupations
- Restrictions regarding public places a person may visit
- Presumptions against guardianship or visitation of a person’s own children
- Annual renewal of a driver’s license, rather than every four years, with “SEX OFFENDER” emblazoned on the license
The court’s decision stated, “The retroactive application of the level assignments based solely upon the crime committed absent any evidence of reoffending or violation of the requirements of SORA [Sex Offender Registration Act] registration are excessive and punitive in nature.”
Because of the punitive nature of the Oklahoma Sex Offender Registration Act and because the 2007 amendment to the Act implied prospective, rather than retroactive, intent, the Oklahoma Supreme Court ruled in favor of Starkey. His name will be removed from the Oklahoma Sex Offender Registry.
Because of how the Department of Corrections has been applying the law over the past six years, they must now remove from the registry the names of anyone whose initial term has expired and who remains on the list as a result of retroactive application of the risk-level assessment amendment. While a Department of Corrections spokesman says that there are easily hundreds of convicted sex offenders whose names will be removed from the registry, some criminal defense lawyers handling sex offender registration lawsuits believe the number to be more accurately in the thousands. Many of those have successfully obtained court orders requiring the Oklahoma Department of Corrections to remove their names from the registry; however, the DOC refused to do so pending the state Supreme Court’s decision.
A DOC spokesman has said that there is no designated time frame for removing the affected names, but that it could take “a month or more.”
Currently, there are 7,704 registered sex offenders in Oklahoma.