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W. Virginia Supreme Court of Appeals Rejects Constitutional Challenge to State’s Sex Offender Registration Act

In June 2012, the Supreme Court of Appeals of West Virginia addressed two certified questions from the Circuit Court of Pleasant County, both concerning the constitutionality of West Virginia’s Sex Offender Registration Act (SORA). Concluding that the first certified question was based on a misapprehension of the law, however, it declined to answer that question.

In 1997, Paul Bostic was charged with sexual abuse in the first degree, a felony. He pleaded guilty to sexual abuse in the second degree, a misdemeanor. Pursuant to a plea agreement (and the provisions of SORA then in effect), Bostic was required to register as a sex offender for a period of ten years.

In 1999 (less than two years later), the Legislature amended the law, increasing the registration period from ten years to life. Pursuant to the amended SORA, the State Police notified Bostic by letter that the statutory changes applied to him.

In 2010, Bostic was indicted for failure to register in 2008 and 2009, after the ten-year registration period in effect at the time he pled guilty had expired.

Bostic moved to dismiss the indictment. He argued that the 1999 amendments to SORA, requiring that he register as a sex offender for life, impaired his pre-existing contractual rights, insofar as he had been induced to enter into his plea agreement in large part because of the shorter registration period (in 1997) for second degree, versus first degree, sexual abuse (ten years versus life). Bostic also argued that, in authorizing the State Police to impose an increase in the registration period of certain convicted sex offenders, SORA violated separation-of-powers principles.

The circuit court rejected both arguments. On appeal, the Supreme Court of Appeals rejected the premise of the first argument; it noted that, at the time of Bostic’s plea agreement, the registration period was the same – ten years – for both second-degree and first-degree sexual abuse.

As to Bostic’s second argument, the Supreme Court of Appeals found, in essence, that in notifying (specified) sex offenders that their period of registration had increased, the State Police were not performing a judicial function, and therefore that the amended SORA did not violate constitutional separation-of-powers principles. See: West Virginia v. Bostic, 229 W.Va. 513, 729 S.E.2d 835 (W.Va. 2012).

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Related legal case

West Virginia v. Bostic