In order for a law to violate the Constitutional prohibition against Ex Post Facto laws, it must be (a) retroactive, and (b) punitive.
In 2018 the Village of Hartland, Wisconsin decided it had too many registrants living in it’s village, so it created a moratorium on “the establishment of “Temporary or Permanent Residence” by a “Designated Offender,” within the Village” In other words, until the concentration of registrants dropped, they wouldn’t let any more move in.
A registrant who wanted to move to Hartland in order to live closer to work and family sued the Village, asserting that it violated the Ex Post Facto Clause the Constitution. The district court held that the law was not retroactive because it applied to registrants who prospectively wanted to move into the town. Because the district court determined the first prong of the test didn’t apply, they didn’t proceed to determine whether it was punitive.
The registrant appealed, arguing that it related to his past conviction and therefore was not prospective, but retroactive. The 7th circuit court of appeals agreed. They even applied Smith v. Doe (for good reason this time), by saying, “The Court has also implicitly acknowledged, in Smith v. Doe, 538 U.S. 84 (2003), that sex-offender laws applying to people with convictions before the effective date are retroactive.”
Having now ruled that it passes the first prong (it is retroactive), they sent it back to the district court to determine whether it’s punitive.
You can read the decision here: https://all4consolaws.org/wp-content/uploads/2022/08/Koch-v-Village-of-Hartland-7th-Cir-Ex-post-facto-Aug-2022.pdf
Remand to see if it’s punishment cuz we’re just not sure….. Please. We need to start calling this what it is: a willfull denial on the part of of judges. Because they know what that means when they say it’s punishment.
Amazingly enough, until 1798 in Calder vs Bull, when the Supreme Court decided what the framers actually meant was criminal law only.
This ruling has been questioned many times and there are numerous legal scholars who believe the court was in error. One such article is from the California Law Review of May 1927, where on page 2 it states…
“The decision in Calder v. Bull in 1798 limited their meaning (Ex Post Facto Laws) to prohibitions against retroactive criminal legislation. The historical accuracy of this holding has since been questioned. Two writers/ after an extensive examination of the records of the Constitutional Convention of 1787 and of the state ratifying conventions, have concluded that the phrase ex post facto was not used in the technical sense of a prohibition against criminal retroactive laws/ but was intended to supplement the clause prohibiting the states from impairing the obligation of contracts, as a prohibition against all retroactive legislation. The real mischief aimed at, it is pointed out, was retroactive civil legislation.”
And there you have it in the last sentence. The wording in the constitution was more about civil law, not criminal law, being retroactively applied, which is exactly what is happening with SORNA laws almost every day.
There will come a day when a case challenging the ruling of Calder vs Bull will make it to the Supreme Court. Let’s hope whoever brings it has deep pockets, great lawyers, and a Supreme Court that isn’t so worried about precedence they won’t overturn it. And let’s hope it’s in the not to distance future.
Let me go ahead and be cynical and say that, like the SOR, they’re also going to consider residence restrictions to be “non punitive.” I don’t know how they play these stupid games! Pretty sure everyone (and not just PFRs and their advocates) would agree that getting arrested or paying fines is indeed punitive.
https://study.com/academy/lesson/banishment-definition-laws-lesson.html#:~:text=Banishment%20is%20a%20form%20of,to%20as%20exile%20or%20deportation.
textbook punishment
“Banishment is a type of punishment that is given as a result of being convicted of a crime. Banishment is defined as a punishment that requires the convicted person to leave the city, county, state, or country in which they are charged. Sometimes banishment is also called exile or deportation .”
…
“Despite being rooted in ancient cultures, banishment is still a form of legal punishment today and is practiced in modern society by countries around the globe. ”
Banishment in Ancient Law
Banishment and exile are often viewed as extreme measures. However ancient law often considered banishment or exile a gracious sentence. It allows the convicted person to avoid legal repercussions for their actions and to continue to live their lives in other societies.
If only that were true, but they did not have internet database systems back then….not gracious in this case, the current laws (relying on worldwide distribution of the offense on the internet) requires a registrant to provide evidence against him/her self wherever they live in the US and extremely difficult to leave the US.
I don’t need a judge to tell me if a punishment is punitive. While they’re batting around semantics, we’re all over here being punished YEARS after the completion of our sentences.
Unfortunately, you do. For things to change it will require a judicial determination.
While you (and all of us) may know in your mind that this is definitely punishment, until a court makes that determination our freedom will remain in our minds.
The problem is not so much how WE feel but how the judges feel. We may know it is punitive because we feel it all the time. Judges have largely ignored how we feel. Most simply don’t give a rip about that. Most have absorbed the victimcentric narrative and the “public safety” kool-aid.
I don’t have high hopes for the 7th Circuit in light of some other rulings I’ve seen from them over the years.