Highlights of the FAC’s “Ex Post Facto Challenge” Lawsuit for Sex Offender Restrictions

Dear Members and Advocates,

It’s been filed! The “Ex Post Facto Challenge”, as we have come to identify it, has been filed in the Federal District Court for the Southern District of Florida. This was the challenge that has long been in the works and we’ve been waiting for. Although it’s been dubbed an “ex post facto” challenge (challenging the retroactive application of sex offender restrictions against those who have committed their offenses prior to the enactment of the particular restriction), it actually includes much more.

You can visit this link to read a copy of the complaint. The lawsuit, which includes a 29 page appendix that outlines the timeline of amendments to the sex offender registration statute since it’s enactment (yes, there were that many amendments that it took 29 pages to list them), also challenges the following:

• The registry constitutes cruel and unusual punishment in violation of the Eighth Amendment.
• The registry imposes strict liability for registration violations (ie: you can unknowingly violate and still be subject to a minimum mandatory sentence), violating of procedural due process.
• The registry is void for vagueness. There’s no fair notice of what conduct is a violation and therefore invites arbitrary enforcement.
• The registry violates one’s fundamental right to travel.
• The registry imposes “stigma plus” (a mark or token of infamy, disgrace, or reproach that impairs interests such things as employment or creates an altered legal status).
• There is no rational basis between the legislative objective and the registry scheme, as it’s been demonstrated that the registry does nothing to improve public safety.
• The registry creates an irrebuttable presumption of dangerousness. It lumps everyone into a “eternally at high risk” basket, without the opportunity for one to prove otherwise.

It is a comprehensive, well-researched, well-articulated complaint. It includes a discussion on the historical evolution of the Florida sex offender registry and notification act, from how it was in 1997 to the “trip-wired maze” it is in 2018. It also includes a section on the empirical evidence – what society has learned about the actual recidivism rates for people required to register as sex offenders and how dramatically different the truth is from the “frightening and high” misconception that was the foundation for these laws. The suit also provides the court with evidence of how ineffective the registry has been in meeting it’s stated objective.

So what’s next? Procedurally, the government has 20 days to file an answer after they are served. Based on experience, they will likely not answer but will instead file a motion to dismiss claiming something to the effect of ‘the registrants don’t have a case because the Supreme Court in Smith v. Doe said the registry is not punishment and that means we can hit sex offenders over the head with bricks, call it part of the registry, and it’s not punishment’. The court will have to entertain several rounds of preliminary/procedural motions and it could take months before the government even answers. If one of these motions lose, the losing party may appeal and that will delay the process further.

To give you some perspective; our residency restriction challenge was filed in 2014 and it’s finally going to trial in 12 days. After that, it could take the Court another year to make a decision. Then, again, the losing party may appeal (note that we waited 10 months for a decision in our Internet Identifier challenge). To add more perspective on the appeals process, Does v. Snyder (the Michigan case) was appealed to the 6^th Circuit in 2015, argued in January of 2016 and a decision rendered in August of that year. That decision, in turn, was appealed by the government to the Supreme Court, who denied certiorari (refused to consider it) on October 2, 2017. The original case in Does v. Snyder was filed on March 6, 2012.

I share this perspective for the benefit of those readers who are already posting and emailing asking, “when do we find out if we won?” It’s important that we set proper expectations. This is a marathon and it will be long, grueling and require a lot of resources. While the wheels are now in motion, it’s important that we can count on our members’ patience and continued support.

Sincerely,

The Florida Action Committee

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