States Can’t Make Up New Laws to Punish Old Conduct Just Because They Call Them “Civil”

Article I, Section 10 of the Constitution provides that “[n]o State shall … pass any … Ex Post Facto law.” The Ex Post Facto Clause was incorporated into the Constitution to prohibit states from enacting retrospective legislation, which the Framers believed to be inherently unfair and contrary to the principles of limited, constitutional government. Despite the Framers’ clear aversion to retrospective lawmaking, the Supreme Court has since adopted the view that states are uninhibited from enacting retroactive civil penalties. So long as a retrospective law contains a discernible legislative purpose and a “civil” label, retroactive application will not run afoul of the Ex Post Facto Clause. Consequently, states have imposed increasingly burdensome retroactive penalties on convicted sex offenders under the guise of civil regulatory laws. Even after offenders have paid their debts to society, they continue to face excessive registration requirements and other onerous civil penalties.

Back in 2004, 19-year-old Anthony Bethea was convicted of six counts of sexual activity arising from non-forcible, consensual intercourse with a 15-year-old girl. He pled guilty and agreed to be sentenced to up to 48 months of imprisonment, complete a sex offender treatment program, and register as a sex offender for 10 years. He successfully completed the treatment program in 2006 and his period of probation in 2007. Beginning in 2006, however, North Carolina drastically transformed its sex offender statute, adding a laundry list of additional burdens on previously convicted sex offenders. Today, Bethea is subject to numerous restrictions that did not exist at the time of his plea agreement, such as limitations on where he can go, where he can live, and what jobs he can hold. Perhaps worst of all, the new restrictions have prevented him from being a father to his children. Due to his continued registration, Bethea has been forced to miss his son’s graduation ceremonies, parent-teacher conferences, and school field trips. Bethea should have been off the registry four years ago, but North Carolina retroactively lengthened his registration period from 10 to 30 years.

In 2014, 10 years after he registered, Bethea petitioned the North Carolina courts to be removed from the registry. He argued that retroactively applying the statutory provisions enacted after Bethea’s conviction violated the Ex Post Facto Clause. Although the court found that Bethea was in no way a threat to public safety, his petition was denied. On appeal, the North Carolina Court of Appeals held that the state’s sex offender statute was civil, rather than punitive, and thus did not constitute a violation of the Ex Post Facto Clause. The North Carolina Supreme Court denied review and Bethea has asked the U.S. Supreme Court to take his case.

Cato has filed an amicus brief supporting that petition, arguing that the Court must return to an original understanding of the Ex Post Facto Clause guided by its twin historical aims: to prevent vindictive legislation targeted at unpopular groups and provide sufficient notice of the consequences in place. Without a principled foundation in original meaning and historic purpose, the Court’s multi-factor ex post facto analysis has come to rest on shaky ground, supplying unimpeded deference to legislative intent. The Court’s continued unwillingness to invalidate statutes for their retroactive punitive effect has given states a perverse incentive to enact increasingly burdensome civil penalties that alter the legal consequences of previously committed conduct without constitutional accountability.

The Supreme Court should take up Bethea v. North Carolina and eaffirm that the Constitution’s prohibition against ex post facto lawmaking forbids states from skirting constitutional scrutiny by simply labeling increasingly burdensome retrospective penalties as “civil” regulatory laws.




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12 thoughts on “States Can’t Make Up New Laws to Punish Old Conduct Just Because They Call Them “Civil”

  1. I read this case and it appears that the courts are doing whatever they please. If a court sentenced an offender by the laws at that time they they shall apply to him now….it violates ex post facto all around the board. This is exactly what I’m going through now in the state of New York.

  2. The duty to register is an on-call “civil” data service. It is not once a year or twice a year. It is every time a change occurrs, around a 48 hour clock, 365 days a year, in perpetuity.
    The value of registration to government exceeds $200k per year, per registrant, as the approximate cost of acquiring their desired information by alternate means, at its own expense.
    Supporters went before God and Country and lied to evade the Ex Post Facto Clause. And in Smith v. Doe they even said nobody had to register in person. Liars!
    Forced labor and services is a traditional form of punishment in this country and if it isn’t punishment it is prohibited by the 13th Amendment. Restitution is mandatory. 18 USC 1593!
    Fair compensation would encourage compliance and offset unemployment, homelessness, hopelessness. No consideration whatsoever is evidence of an intent to punish. That is exploitation.

    They want it they should pay for it.

    1. Lawrence Rider! I need to speak with you! 🙂 please contact me. Mrmooples at aol dot com.
      You are 100% correct! Also don’t forget that “human trafficking”, is defined by the U.S. Department of Homeland Security as modern-day slavery involving the use of force, fraud, or coercion to obtain labor or a commercial sex act. All the other “officials” providing a “public safety service” for the registry receive a paycheck! So far every state in this country is guilty of Human trafficking with this registry! I have set the going rate and mailed the stated of New York a bill for public safety services provided… contact me!

      1. ……. “through abuse of the law or legal process.” Otherwise known as “under color of law.” A federal crime may have been committed. I think this should be an exception to ANY bar on reviewing a criminal conviction, in a civil proceeding or elsewhere. What have they got to hide?

      2. “Ex felon” laws (voting, firearms, licencing, registration …) are just subjugation of a class, to promote an upper class. Like the black codes; badges of slavery stopping just short of chattel slavery, while nonetheless asserting a limited right of ownership over [property]. Servitude!

      3. They deliberately thwarted the bill of rights. Lied and lied and lied to evade those limitations on government power and rather plainly upset our democracy. That’s treason.

  3. Its not once or twice a year. Its every time a change in the registration data occurs in order to keep the data accurate, within a 48 hour margin if error, 365 days a year, in perpetuity. At one point I had to register 9 times in 5 months. It is almost constantly on my mind. Some have to register every 24 hours. That’s horrific. That’s forced labor and services.
    Registration is worth over $200k to government per year per registrant as the approximate cost to government of acquiring the data by alternate means at its own expense. That’s exploitation.

  4. Human Trafficking

    Cuff em up, throw em in a cage and tell them they will never get out unless they plea bargain …… and agree to provide free civil labor and service, as an ex felon and registrant.

  5. The 13th Amendment has been codified in the United States criminal code. Registration is not an exception to that amendments prohibition of involuntary servitude. First, registration laws to not apply to the general public. They target a disfavored subclass without a political voice, without civil rights, ironically. Second, exceptions to the worldwide prohibition of forced labor and services are compensated in this country: jury duty, witness attendance, military conscription.

    Lock em up!

  6. The 13th Amendment’s prohibition of servitude does not exempt those merely convicted of crime. It protects everyone except those who have been “duly convicted.” Big difference.
    The word “duly” means ‘in accordance with what is required or appropriate.’ And the courts have repeatedly held the mere fact that a purported lawyer happens to be in court alongside the accused is not enough to satisfy the 6th Amendment.
    Whether or not a person is protected by the 13th Amendment obviously requires findings of fact beyond the mere existence of a document entitled ‘judgment of conviction.’
    I suggest the problem here is that law makers cannot make the necessary factual findings predicate to the imposition of servitude because that is a Bill of Attainder (pains and penalties) prohibited by Article 1 Section 9 paragraph 3.

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