RETROACTIVE SEX OFFENDER REGISTRATION IN DELAWARE
In July 2008, a Delaware statute (11 Del.C. §4120) was enacted which requires persons who were convicted of sex offenses prior to the creation of the sex offender registry to nevertheless register as sex offenders.
This new retroactive requirement in Delaware's sex offender registration law is the result of a federal mandate contained within the Adam Walsh Child Protection and Safety Act of 2006 (at 42 USC § 16925). Title I of the Act is known as the Sex Offender Registration and Notification Act (SORNA) and is contained within 42 U.S.C. §§ 16901-16962. SORNA sets forth a strict set of guidelines for sex offender registration (standardizing the triple-tiered classification system and retroactive application of registration requirements) and requires that all states enact registration statutes that comply with them or else lose federal law enforcement funding received through the Omnibus Crime Control and Safe Streets Act of 1968. However, the SORNA mandate does allow states to implement "reasonable alternative procedures" and maintain funding if a state cannot implement a portion of the law which violates its state constitution. 42 USC § 16925(b)(3).
This retroactive application of the sex offender registry law strikes many people as a violation of both the double jeopardy and ex post facto prohibitions found in the United States Constitution. It seems especially harsh for persons who were convicted of sex offenses many years ago and have gone on to live successful, law abiding lives. However, the retroactive application of a similar Alaskan sex offender registration statute (which predated SORNA) was upheld by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003). The Delaware Supreme Court likewise rejected an ex post facto argument against Delaware's previous registration law, finding that it was not punitive, and was instead regulatory in nature. Smith v. State, 919 A.2d 539 (2006). See also Helman v. State, 784 A.2d 1058 (2001).
While the United States Constitution guarantees, in effect, a baseline set of rights, state constitutions can confer a wider range of rights if they contain distinct provisions or interpret identical provisions differently. However, there is no provision in the Delaware State Constitution would definitively bar retroactive application of the sex offender registration law.
Despite the bleak current state of the case law on the subject, there are ways for a sex offender to be removed from the registry. If a sex offender obtains a pardon from the Governor, the pardon operates to relieve the person of the registration requirements. Also, pursuant to 11 Del.C. §4121, a sex offender may petition Superior Court for early removal from the sex offender registry. However, the petitioner must have been on the registry for at least 10 years (depending on the tier assignment) before petitioning the Court.
Additionally, please be aware that if a person receives written notification from the Delaware Department of Public Safety that he or she must now register as a sex offender, State law permits the person to file an appeal within 10 days to the Delaware Board of Parole in order to ask the Board to consider placing the appellant on a less restrictive tier.
Finally, while the Courts have found that sex offender registration is not a punitive requirement, please be advised that failure to register as a sex offender is a felony level criminal offense, punishable by up to 2 years in jail.
If you would like to learn more about sex offender registration, please contact our office to arrange an appointment.