Tide Turns Against Repunishment of Former Sex Offenders


by Adam R. Banner

Adam R. Banner has proven himself a formidable opponent to 
those who would challenge his client’s constitutional rights. In recognition of his results in criminal litigation, he has been named one of the Top 100 Trial Lawyers in Oklahoma. Moreover, he is “Lead Counsel” rated, and Avvo has named him as one of the small percentage of “Superb” rated criminal defense attorneys in Oklahoma. The following is his analysis of how some recent Oklahoma decisions might affect former sex-offender laws in other states.

Recent decisions have relied on the reasoning of the US Supreme Court in Smith v. Doe when analyzing challenges to sex offender registry laws. The Smith decision notoriously held that Alaska’s sex offender registry did not violate the US Constitution’s prohibition on ex post facto laws. The US Supreme Court held that the Alaska registry was constitutional by applying a two-step analysis: first, determining whether the legislation was intended to have a punitive effect and if so, analyzing the results of the “intents-effects” test established by the court in Kentucky vs. Mendoza-Martinez.

The Oklahoma Supreme Court wisely broke from Smith when it decided Starkey v. Department of Corrections on June 25, 2013. Although the Starkey decision relied on the same framework established in Smith, the Oklahoma Supreme Court acknowledged that the challenged state sex offender statutes were not at all the same as the Alaska registration scheme examined by the US Supreme Court in Smith. The inconsistent nature of the two cases was largely due to the fact that Smith was decided prior to the state-level application of the federal Sex Offender Registration and Notification Act (SORNA) which, once adopted, completely altered the complexion of the Oklahoma Sex Offender Registration Act (OSORA).

Oklahoma codified the SORNA amendments on November 1, 2007, and effectively ushered in an era of unconstitutional restrictions on its citizens. Most notable was a new tiered registration scheme, which retroactively changed the length of registration required by every individual subject to the registry. Full Post

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