From Brief of Maryland Criminal Defense Attorneys Association, Office of the Public Defender, and Families Advocating Intelligent Registries as Amicus Curiae, p. #, Doe v. Dept. of Pub. Safety & Corr. Services (No. 125, Sept. Term 2011).
Pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program of 1994, 103 P.L. 322, Maryland enacted its first sex offender registration scheme in 1995. See Young v. State, 370 Md. 686, 692 n.3 (2002); Graves v. State, 364 Md. 329, 336-37 (2001). Contained within a single section in former Article 27 of the Code, the law only made registration a consequence for a handful of offenses. Importantly, the law also had no retroactive effect; by its own terms it applied only to offenses committed on or after the effective date of the law, October 1, 1995. 1995 Md. Laws ch. 142.
Under former Article 27, § 692B, only child sex offenders, a class defined by statute, were required to register. Id. Registration involved filing a statement with an offender’s local law enforcement agency within seven days of a qualifying event, such as release from prison. Id. The registration statement consisted of a signed statement indicating the offender’s name, address, and place of employment, a description of the crime committed, the date of conviction, the jurisdiction of conviction, a list of any aliases used by the offender, and the offender’s Social Security number. Id. In addition, the offender’s local law enforcement agency was required to obtain a photograph and fingerprints of the offender for inclusion in the registration statement. Id. Registration was to occur annually for a period of 10 years. Id. Changes of address had to be reported within seven days. Id. Failing to register was made a misdemeanor, punishable by up to three years imprisonment and a $5,000 fine. Id.
Once an offender registered, the burden shifted to the local jurisdiction to send notice of the registration to the county superintendent. Id. The local law enforcement agency was also authorized to provide notice to community organizations, religious organizations, and any other organizations “that relate to children or youth.” Id. Although the Department of Public Safety and Correctional Services (“DPSCS”) was authorized to create and maintain a central registry of offenders, Id., the Legislature did not make provision for the posting of registry information on the Internet.
Significant changes to the law came as early as 1997. That year, the Legislature added three categories of individuals required to register, offenders, sexually violent offenders, and sexually violent predators. 1997 Md. Laws ch. 754. Unlike persons falling into the other categories, sexually violent predators were defined not simply by their offense but also by their prior record and whether they had been determined by a court to be at risk of recidivism. Id.
The frequency and duration of registration depended on the category into which an offender fell: annually for 10 years for child sex offenders, offenders, and sexually violent offenders, and every 90 days for sexually violent predators until a court determined that they no longer fit into that category. Id. Child sex offenders were given the additional burden of having to register in person. Id. As with the 1995 version of the law, the 1997 amendments applied only to offenses committed on or after the effective date of the law. Id.
If the primary effect of the 1997 amendments was to broaden the scope of the law, changes to the statute in 1999 substantially increased the burden on registrants. Depending on their offense, child sex offenders and sexually violent offenders would have to register annually for 10 years or for the remainder of their lives. 1999 Md. Laws ch. 317. Sexually violent predators would have to register every 90 days for life. Id. The content of registration statements also expanded; an offender now had to include information about any school enrollment and, if he or she met the definition of a sexually violent predator, information about identifying factors, including a physical description, any anticipated future residence, if known, offense history, and any treatment received for a mental abnormality or personality disorder. Id. The notification provisions of the law were also expanded to include, inter alia, authority for DPSCS to post offender information on the Internet. 1999 Md. Laws ch. 402.
In 2001, the registration and notification provisions were transferred from Article 27 to the Criminal Procedure Article, § 11-701, et seq. Although much of the law remained unchanged, the Legislature took the first step toward making it apply retroactively to individuals who committed their offenses prior to the enactment of the statute in 1995. In particular, child sex offenders who committed their offenses on or before October 1, 1995, were required to register if they were under custody or supervision on October 1, 2001. 2001 Md. Laws ch. 221. Registration for other types of sex offenders was mandated if the offenses were committed on or before July 1, 1997, and the offenders were under custody or supervision on October 1, 2001. Id.
The next major changes to the law came in 2006. That year, the Legislature increased the frequency of registration to every six months for child sex offenders, offenders, and sexually violent offenders. 2006 Md. Laws Sp. Ses. ch. 4. In addition, all registrants, and not just child sex offenders, were required to register in person. Id. The Legislature also altered the penalty for failing to register, making a subsequent conviction for the offense a felony punishable by up to five years in prison and a $10,000 fine and made it a crime, subject to limited exceptions, for a registered sex offender to enter onto real property that is used for elementary or secondary education or child day care. Id.
At least two additional changes to the law in 2006 are also significant. First, the Legislature required offenders to provide DNA samples at the time of registration unless they had already done so. Id. Second, the Legislature created a new category of individuals, “extended parole supervision offenders,” who, in addition to registering, must serve a term of “extended sexual offender parole supervision” lasting from three years to life. Id. Among the conditions extended parole supervision may include are monitoring via global positioning satellite tracking technology, restricting where a registrant may live and work, requiring participation in a sexual offender treatment program, prohibiting the use of drugs and alcohol, and requiring regular polygraph examinations. Id.
In 2008, the Legislature again increased the burden on registrants. In addition to the information a registrant was already required to give, he or she now had to provide any former names, e-mail addresses, computer log-in or screen names or identities, instant messaging identities, electronic chat room identities, a copy of his or her driver’s license or identification card, and the license plate number and description of any vehicle he or she regularly operated. 2008 Md. Laws ch. 352.
The next year brought with it two major changes. For the first time, juvenile sex offenders were required to register, albeit for a more limited period of time, five years. 2009 Md. Laws ch. 524. Second, the Legislature made sweeping changes to the retroactivity provision, bringing within the reach of the law sexually violent offenders and sexually violent predators convicted on or after July 1, 1997, of offenses committed before July 1, 1997, and child sex offenders convicted on or after October 1, 1995, of offenses committed before October 1, 1995. 2009 Md. Laws ch. 541.
Bigger changes were still to come. In 2010, the Legislature, in accordance with the Adam Walsh Child Protection and Safety Act of 2006, 109 P.L. 248, reclassified offenders into tiers. Tier I offenders have to register in person every six months for 15 years with the possibility of a reduced term of registration. 2010 Md. Laws chs. 174, 175. Tier II offenders have to register in person every six months for 25 years. Id. Tier III offenders, including Mr. Doe, have to register in person every three months for life. Id. Unlike Tier I offenders, Tier II and Tier III offenders cannot petition for a reduction in the term of registration.
The Legislature made registration more burdensome in other respects as well. Whereas offenders previously had seven days to register and seven days to report a change of address, they now have only three days. Id. In addition, offenders have to inform the authorities in writing including an itinerary prior to any absence from their homes for more than seven days. Id. All registrants, and not just sexually violent predators, also have to provide more information, including a physical description, a copy of any passport or immigration papers, information regarding professional licenses, cell phone and landline numbers, finger- and palm prints, and information about past criminal history. Id.
The Legislature also made another change to the retroactivity provision. Pursuant to legislation passed in 2010, the law now applies to any person who qualifies as a Tier I, II, or III offender and was under the custody or supervision of a supervising authority on October 1, 2010 or was already subject to registration on September 30, 2010, as well as to any person convicted of any “crime” on or after October 1, 2010, who has a prior conviction for an offense for which registration as a sex offender is required. Id. ( In 2011, the Legislature substituted the word “felony” for “crime” and added a provision applying the law to persons “convicted on or after October 1, 2010, of a violation of § 3-324 of the Criminal Law Article, regardless of whether the victim was a minor.” 2011 Md. Laws ch. 374.)
While recent amendments may have increased the burden on sexual offender registration, they do not, by any stretch of the imagination, mark the end of the line. Among the bills considered by the General Assembly during the 2012 session include proposals to: (1) prohibit registered sex offenders from going to schools to vote in elections, HB 495 (2012); (2) prohibit registered sex offenders from entering onto real property that is owned or operated by community–based organizations which provide recreational activities for children, HB 591 (2012); (3) prohibit registered sex offenders from participating in any Halloween activity that involves children including trick–or–treating, distributing candy to children, attending a school function, and attending a community festival, HB 1351 (2012); (4) creating a registry for individuals convicted of non-sexual child abuse, SB 370 (2012); and (5) creating a registry for individuals convicted of animal abuse, HB 1020 (2012).
It may be argued that these are merely examples of proposed legislation and that the Legislature would never actually pass anything so extreme. However, that argument ignores the dramatic changes that have been made to the sex offender registration scheme since it was first put into place in 1995.