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.
More at http://www.texasobserver.org/texas-court-criminal-appeals-retroactive-civil-penalties/ .
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