Criminal Court Punts on ‘Retroactive Punishment’ Question

Craig Rudy Reynolds was lucky three times, but not four.

In 1990, when Reynolds was convicted of sexual assault of a child, Texas didn’t have a public sex offender registry. Lawmakers established one just a year later, but it applied only to convictions after September 1991, so Reynolds was exempt. Then, in 1997, legislators changed the law to require all sex offenders convicted after 1970 to register—but only if currently incarcerated or on probation or parole. Reynolds had already served his full five-year sentence. He was a free man.

But it didn’t last. In 2005, lawmakers amended the statute again to require every post-1970 sex offender to register, whether supervised or not. Reynolds, who’d done his time a decade before, says he didn’t know about the change, but that didn’t matter to the court that found him guilty of failure to register in 2009.

The Court of Criminal Appeals, Texas’ highest for criminal cases, heard Reynolds’ appeal in February. This time, he argued both that he couldn’t have known he was supposed to register and—more intriguingly—that the new requirement is unconstitutional because it was retroactive punishment.

The U.S. Constitution forbids ex post facto laws, which change the legal consequences of an act committed before the law was passed. That’s why you can’t go to jail for having eaten apples in 1970 if they’re outlawed in 2015. But you can, at any time in the future, get added to an apple-eater registry, denied an occupational license, and kicked out of public housing. Those are considered civil penalties, meant to protect the public, rather than punitive ones meant to punish or deter. Unlike punishment, civil penalties can apply retroactively.

“Criminal convictions carry a wide variety of what are called collateral consequences,” says Jennifer Laurin, a professor at the University of Texas School of Law. “In Texas, there are dozens and dozens of them.” For example, most felons in Texas can’t get welfare, run for office, serve on a grand jury, or drive a school bus. Restrictions like these can be enacted at any time and affect people whose crimes are long behind them.

So what makes something a civil penalty and not a punishment? The Legislature’s say-so. In court challenges, the effect of a law has been considered less important than its stated intent. “Obviously [sex-offender registries] do have a consequence of making life very difficult … and are certainly experienced by the person, as well as the community, as punishment in a meaningful sense,” Laurin says. “Nevertheless, that’s not the primary purpose of them.”

In the end, the Court of Criminal Appeals declined to rule on whether Texas’ registry law can be applied retroactively, saying Reynolds should have brought that up earlier. Reynolds lost his appeal and now faces another five years in prison.

Laurin says such civil penalties are on the rise. “There are states that have domestic violence registries,” she notes. “There are states that have animal cruelty registries. There are states that have at least proposed DUI and DWI registries.”

The main check on such expansions is political. “The more that the general public is affected… the harder it is for the Legislature to enact,” Laurin says. “The reality is that convicted sex offenders don’t have much of a lobby.”