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Ninth Circuit Finds Arizona's Sex Offender Registration Law Not Ex Post Facto Violation

On September 2, 2016, a three-judge panel of the Ninth Circuit U.S. Court of Appeals found that Arizona's sex offender registration law may be constitutionally applied to persons who committed their offense prior to passage of that law. The decision upheld the conviction of a Cochise County man for failing to register as a sex offender.

That man is David B. Clark, who was convicted in 1982 for the Class 2 felony of sexual misconduct for having sex with his 14-year girlfriend when he was eighteen years old. Arizona enacted its modern sex offender registration statute (Ariz. Rev. Stet: Sect. 13-3821) in 1983, and it applied by its terms to persons convicted of sex offenses before and after passage of the law.

Clark was arrested in 2009 for failing to comply with the statute.

In 2010 he pleaded guilty to a charge of failing to register as a sex offender and was sentenced to 3 1/2 years in prison. Clark later filed a petition for post-conviction relief in state trial court, arguing that his conviction violated the Ex Post Facto Clause of the United States Constitution.

The state court rejected his claim on the merits, relying on an Arizona case State v. Henry, 228 P.3d 900 (2010), which held the Arizona statute did not violate the right against ex post facto punishment under either the U.S. or Arizona Constitution. Clark's petition to the Arizona Supreme Court, and his petition for a writ of habeas corpus file in the U.S. District Court in Arizona, were both denied, and the case  was finally appealed to the Ninth Circuit, which upheld Clark’s conviction.

Finding that the purpose of the Arizona sex offender registration statute to be more regulatory than punitive, despite its inclusion it the criminal section of Arizona statutes, the Ninth Circuit said its "retroactive application did not violate the Ex Post Facto Clause." The court cited to a U.S. Supreme Court case that said "the location and labels of a statutory provision do not themselves transform a civil remedy into a criminal one." See Smith v. Doe I, 538 U.S. 84 (2003).

The Ninth Circuit further found that the law's punitive effects did not outweigh its regulatory purpose because the public shaming and attendant humiliation of sex offender registration are "but a collateral consequence of a valid regulation."

"Considering all the relevant factors, when taken together, the Arizona Court of Appeals was not unreasonable in holding that the statute's punitive effects fail to outweigh its regulatory purposes" and thus the state court did not "unreasonable apply relevant Supreme Court precedent," the court concluded. See: Clark v. Ryan, No. 15-15531 (9th Cir. 9/2/2016).

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Related legal case

Clark v. Ryan