Fallen v. United States ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CM-0233
RONTE D. FALLEN, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2018-DVM-000817)
(Hon. Judith A. Smith, Motion Judge; Hon. Anita Josey-Herring, Trial Judge)
(Argued November 20, 2020 Decided March 9, 2023)
Alice Wang, Public Defender Service, with whom Samia Fam and Lee R.
Goebes, Public Defender Service, were on the brief, for appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Timothy J.
Shea, United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Chrisellen R. Kolb, and Elizabeth Kelley, Assistant United States Attorneys, were
on the brief, for appellee.
Before MCLEESE and DEAHL, Associate Judges, and RUIZ, Senior Judge.
Opinion of the court by Senior Judge RUIZ.
Concurring opinion by Associate Judge MCLEESE at page 26.
RUIZ, Senior Judge: Appellant, Ronte Fallen, appeals the trial court’s denial
of his demand for a jury trial in a prosecution for misdemeanor child sexual abuse.
Appellant argues that the combination of penalties he faced, including ten years of
2
sex offender registration and community notification mandated by the Sex Offender
Registration Act of 1999 (SORA), is a severe penalty that warrants a jury trial under
the Sixth Amendment and Blanton v. City of North Las Vegas, 489 U.S. 538, 543
(1989). We agree with appellant’s constitutional argument and, therefore, reverse
the convictions in the bench trial and remand for further proceedings.
I. Background
The United States charged appellant with three counts of misdemeanor child
sexual abuse in violation of D.C. Code § 22-3010.01 and one count of misdemeanor
sexual abuse in violation of D.C. Code § 22-3006. Appellant filed a jury trial
demand arguing that the combined severity of the penalties he faced denote these
are serious offenses that entitled him to a jury trial under the Sixth Amendment.
Believing that this court’s decision in Thomas v. United States, 942 A.2d 1180, 1186
(D.C. 2008), foreclosed appellant’s argument, the trial court denied appellant’s
motion.
At the bench trial, the trial court dismissed one count of misdemeanor child
sexual abuse and found appellant guilty of the remaining two counts of misdemeanor
child sexual abuse and one count of misdemeanor sexual abuse. Appellant was
3
sentenced to three concurrent 180-day periods of incarceration, with partial
execution suspended, and placed on 18 months of supervised probation. A condition
of probation was compliance with SORA registration and verification requirements.
The trial court certified appellant as a Class B sex offender and ordered him to
register with the Court Services and Offender Supervision Agency (CSOSA) for ten
years upon release from incarceration.
II. Standard of Review
“We review the denial of a defendant’s request for a jury trial de novo.” Smith
v. United States, 768 A.2d 577, 578 (D.C. 2001); see also Davis v. United States,
564 A.2d 31, 35 (D.C. 1989) (en banc) (noting that we review pure legal
determinations de novo “based on an original appraisal of the record”).
III. Discussion
Appellant claims that he was constitutionally entitled to a jury trial because
the combined maximum penalties for the charged crimes—180 days of
incarceration, up to five years of probation and a $1,000 fine and, followed by 10
years of sex offender registration and community notification under SORA—are
4
severe enough to indicate that the legislature views the offenses as serious under the
Sixth Amendment. The government contends that our precedent in Thomas
forecloses appellant’s claim. Even if it does not, the government argues, appellant
was not entitled to a jury trial because sex-offender registration is not a penalty of
conviction and is not sufficiently severe to convert an otherwise petty offense into a
serious one. We conclude that appellant was entitled to a jury trial under the Sixth
Amendment. We first address why Thomas does not foreclose appellant’s claim.
We decide SORA registration is a penalty that should be considered in the Sixth
Amendment calculus and explain why the combination of penalties appellant faced,
including SORA registration and public dissemination of identifying personal
information, is a severe penalty that marks the misdemeanor child sexual abuse
offenses of which he was convicted as serious, triggering the right to a jury trial.
A. The Sixth Amendment Right to Jury Trial and Blanton’s Presumption
Against Jury Trials for Petty Offenses
The Sixth Amendment guarantees several rights in “all criminal
prosecutions,” including “the right to a speedy and public trial, by an impartial jury.”
U.S. Const. amend. VI. Notwithstanding the text, “[i]t has long been settled that
‘there is a category of petty crimes or offenses which is not subject to the Sixth
Amendment jury trial provision.’” Blanton v. City of North Las Vegas,
5
489 U.S. 538, 541 (1989) (quoting Duncan v. Louisiana, 391 U.S. 145, 159 (1968)).
The most relevant criterion in determining whether a particular offense should be
categorized as petty is “the severity of the maximum authorized penalty.” Id.(quoting Baldwin v. New York, 399 U.S. 66, 68 (1970)). “In fixing the maximum
penalty for a crime, a legislature ‘include[s] within the definition of the crime itself
a judgment about the seriousness of the offense.’” Id. (alteration in original)
(quoting Frank v. United States, 395 U.S. 147, 149 (1969)).
The clearest distinction between “serious” crimes that are jury-demandable
and “petty” crimes that are not, is drawn at whether the offense carries a maximum
“authorized prison term of greater than six months.” Id. at 542. As the Supreme
Court has made clear, though “primary emphasis” should be placed on maximum
exposure to incarceration, it is not the sole “penalty” that can denote the seriousness
of an offense. Id. “A legislature’s view of the seriousness of an offense also is
reflected in the other penalties that it attaches to the offense.” Id. Thus, courts must
“examine ‘whether the length of the authorized prison term or the seriousness of
other punishment is enough in itself to require a jury trial.’” Id. (quoting Duncan,
391 U.S. at 161).
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Where the maximum authorized period of incarceration is “six months or
less,” a defendant is entitled to a jury trial “only if he can demonstrate that any
additional statutory penalties, viewed in conjunction with the maximum authorized
period of incarceration, are so severe that they clearly reflect a legislative
determination that the offense in question is a ‘serious’ one.” Id. at 543 (emphasis
added). “In performing this analysis, only penalties resulting from state
action, e.g., those mandated by statute or regulation, should be considered.” Id. at
543 n.8. This is so because “nonstatutory consequences of a conviction ‘are
speculative in nature, because courts cannot determine with any consistency when
and if they will occur, especially in the context of society’s continually shifting
moral values.’” Id. (quoting Douglas E. Lahammer, Note, The Federal
Constitutional Right to Trial by Jury for the Offense of Driving While Intoxicated,
73 Minn. L. Rev. 122, 149-50 (1988)).
Applying these principles, in Blanton the Supreme Court considered the
panoply of statutory maximum penalties faced by a person convicted of DUI: 180
days’ imprisonment or “48 hours of community service dressed in clothing
identifying [the defendant] as a DUI offender,” a fine of $1,000, automatic loss of
“his driver’s license for 90 days,” and a mandatory “alcohol abuse education course”
at the defendant’s expense. Id. at 539-40, 544. The court concluded these combined
7
penalties were not severe enough to indicate the legislature thought the offense was
serious and, thus, the DUI defendant was not entitled to a jury trial. Id. at 543-44.
We have summarized Blanton’s analytical framework as requiring
a two-step analysis: (1) identification of the penalties for
conviction of an offense, and (2) an evaluation of whether
the penalties, viewed together, are sufficiently severe to
warrant a jury trial by comparison to the possibility of
imprisonment for more than six months, which the Court
has established (when considering only incarceration) as
the constitutional dividing line between petty and serious
offenses.
Bado v. United States, 186 A.3d 1243, 1252 (D.C. 2018) (en banc).
As appellant’s maximum exposure to incarceration (180 days) was not greater
than six months, his claim to a jury trial relies on additional penalties he faced,
specifically, mandatory SORA registration.
B. The D.C. Sex Offender Registration Act of 1999 (SORA)
“In 1994, Congress passed the Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Registration Act . . . .” In re W.M., 851 A.2d 431, 435
(D.C. 2004) (citing 42 U.S.C. § 14071 (repealed 2009)). “[T]he Act required each
state and the District of Columbia, as a condition of receiving certain federal funds,
8
to establish a program of sex offender registration and community notification.” Id.In response, “the Council of the District of Columbia enacted the SORA of 1999.”
Id.“SORA imposes registration requirements on sex offenders based on the
nature of the offenses they committed rather than on an individualized assessment
of their risk of recidivism.” Id. at 436. “Most sex offenses are within the coverage
of SORA, but the Act does not apply, generally speaking, to offenses that are
non-assaultive and that do not involve minors.” Id. at 436 n.2; see also D.C. Code
§§ 22-4001(6), (8), 22-4016. We have summarized SORA’s initial requirements as
follows:
Upon registering, a sex offender is required to provide
CSOSA with a photograph, fingerprints and other
identifying information, including his or her “name, all
aliases used, date of birth, sex, race, height, weight, eye
color, identifying marks and characteristics, driver’s
license number, social security number, law enforcement
agency identification numbers, home address or expected
place of residence, and any current or expected place of
employment or school attendance.” . . . The period for
which the offender must remain registered with CSOSA
depends on the nature of that offense. Offenders who have
committed the most serious offenses must register for life;
all others must register for ten years or until the end of any
period of probation, parole, supervised or conditional
release, or convalescent leave, whichever is later.
9
In re W.M., 851 A.2d at 436 (citations omitted) (quoting D.C. Code
§ 22-4007(a)(2)); see also D.C. Code §§ 22-4001(6), 22-4002.
SORA imposes reporting obligations throughout the period of registration.
“During the applicable registration period, a sex offender must report any changes
of address or other registration information.” In re W.M., 851 A.2d at 436 (citing
D.C. Code § 22-4009(a)). “Registrants also are required to verify their addresses
and other information annually, or in the case of lifetime registrants, quarterly.” Id.(citing D.C. § 22-4008(a)(1)). “CSOSA gathers the information that it collects from
sex offenders in a central registry.” Id. at 437 (citing D.C. Code § 22-4010(a)). The
duration of registration and reporting requirements depends on the classification of
the offense. “Offenders who are required to register for life are in Class A. Ten-year
registrants who have committed offenses against minors or sexual abuse of wards,
patients, or clients are in Class B. Other ten-year registrants are in Class C.” Id.(citing D.C. Code § 22-4011(b)(2)(A)-(C)).
In addition to requiring registration and updates for the central registry, SORA
provides for public dissemination of the registrant’s identity, personal
characteristics, and location. “SORA authorizes the Metropolitan Police
Department (‘MPD’) to provide both ‘active notification’ and ‘passive notification’
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to the public of information concerning registered sex offenders.” Id. (quoting D.C.
Code § 22-4011(b)(1)(A)). “‘Passive notification’ means ‘making information
about sex offenders available for public inspection or in response to inquiries.’” Id.
at 437-38 (quoting D.C. Code § 22-4011(b)(1)(B)). “Active notification . . . refers
to affirmatively informing persons or entities about sex offenders” through various
means, including “community meetings, flyers, telephone calls, door-to-door
contacts, electronic notification, direct mailings, and media releases.” D.C. Code
§ 22-4011(b)(1)(A). Regulations issued pursuant to SORA provide for public
disclosure of the offender’s full name and aliases, date of birth, sex and race, height
and weight, eye and hair color, identifying marks, home, work, and school addresses,
a photograph, the offense requiring registration, court case number, date of
registration, date of last verification, and whether there are any outstanding warrants
for failure to comply with SORA registration. 6A D.C.M.R. § 420.1. Widespread
passive notification on the internet is restricted to Class A and Class B offenders.
D.C. Code § 22-4011(b)(3). Active notifications “concerning Class A, Class B, and
Class C offenders may be provided to” law enforcement agencies, victims of and
witnesses to a sex offender’s crime, and persons about whom the Metropolitan
Police Department has information indicating a specific risk from the sex offender.
6A D.C.M.R. § 417.1(a), (c)-(d). Organizations, such as schools, day care centers,
and other child care centers may receive active notifications “through electronic
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notification or direct mailings” upon “written request.” Id. § 417.1(b); see D.C.
Code § 22-4011(b)(3)(B).
C. Precedent on SORA in Context of the Blanton Presumption
No division of the D.C. Court of Appeals “will overrule a prior decision of
this court,” and “such result can only be accomplished by this court en banc.” M.A.P.
v. Ryan, 285 A.2d 310, 312 (D.C. 1971); see Jenkins v. United States, 80 A.3d 978,
991 (D.C. 2013). Outside the en banc process, “[t]his court will not lightly deem
one of its decisions to have been implicitly overruled and thus stripped of its
precedential authority.” Lee v. United States, 668 A.2d 822, 828 (D.C. 1995).
However, this rule of appellate stare decisis does not “oblige[] us to follow,
inflexibly, a ruling whose philosophical basis has been substantially undermined by
subsequent Supreme Court decisions or by our own supervening rulings en banc.”
Id. (first quoting Frendak v. United States, 408 A.2d 364, 379 n.27 (D.C. 1979); and
then citing Abney v. United States, 616 A.2d 856, 861 (D.C. 1992)).
The trial court rejected appellant’s claim on the ground that it was foreclosed
by this court’s decision in Thomas. On appeal the government continues to press
this argument. As we do not sit en banc in deciding this case, we may not depart
12
from Thomas unless its philosophical underpinnings have been “substantially
undermined” by an authoritative ruling. That is not a determination we make lightly,
but with respect to this issue, we conclude that Bado, a subsequent opinion by our
court, sitting en banc, permits us to consider the matter anew.
Thomas addressed whether SORA’s registration requirement is a severe
enough penalty to overcome the Blanton presumption under the “extremely limited
plain-error standard.” 942 A.2d at 1186 (quoting Spriggs v. United States,
618 A.2d 701, 704 (D.C. 1992)). Relying on prior cases describing SORA as “a
remedial regulatory enactment, not a penal law,” “we conclude[d] that the Sixth
Amendment does not require that we divert . . . from the statute that calls for jury
trial in only these cases where the maximum penalty exceeds 180 days.” Id.; see In
re Doe, 855 A.2d 1100, 1103-07 (D.C. 2004); In re W.M., 851 A.2d at 441;
D.C. Code § 16-705(a)-(b).
Since Thomas, we have had occasion to apply the Blanton two-step analysis
under plenary appellate review. In Bado, the en banc court considered whether
deportation is a penalty for purposes of the Sixth Amendment analysis and held that
“the penalty of deportation, when viewed together with the 180-day maximum
period of incarceration for misdemeanor sexual abuse of a minor, overc[ame] the
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presumption that [the] appellant was charged with a petty offense and trigger[ed] the
Sixth Amendment right to a trial by jury.” 186 A.3d at 1262. 1 The court noted that
“[t]he Supreme Court has ‘long recognized that deportation is a particularly severe
“penalty,”’ equating it to ‘banishment.’” Id. at 1251 (quoting Padilla v. Kentucky,
559 U.S. 356, 365, 373 (2010)). Thus, Bado reasoned that “[l]ike incarceration,
deportation separates a person from established ties to family, work, study, and
community. . . . [I]t is similar ‘in severity [to] the loss of liberty that a prison term
entails.’” Id. at 1250 (third alteration in original) (quoting Blanton, 489 U.S. at 542).
Bado considered and rejected the government’s argument that deportation
should not be considered a penalty in the Blanton analysis because it was a separate
civil and regulatory measure, not “punishment” for the offense. Id. at 1252-54. We
explained that cases rejecting a jury trial right on the ground that SORA registration
is not punishment but a regulatory measure misunderstood that “analysis under the
Sixth Amendment guarantee to a jury trial is fundamentally different from analysis
under the Fifth Amendment’s Ex Post Facto and Double Jeopardy Clauses because
of differences in the constitutional text and rights protected.” Id. at 1258 n.31; see
id. (citing Thomas, 942 A.2d at 1186).
1
Mr. Bado also claimed that sex offender registration entitled him to a jury
trial but the court, relying on the deportation penalty, did not need to address this
argument. Bado, 186 A.3d at 1247 n.6.
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We further explained that the civil/criminal and collateral/direct dichotomies
were unhelpful in the Sixth Amendment analysis because deportation, even if
pursued in a regulatory-type proceeding collateral to the criminal proceeding, “is an
integral part—indeed, sometimes the most important part—of the penalty that may
be imposed on noncitizen defendants.” Id. at 1254 (quoting Padilla, 559 U.S. at
364). We reasoned that characterizing deportation as “non-criminal” was “at odds
with . . . current law and practice” where deportation is an “enmeshed,” “integral,”
and “inevitable” part of the criminal proceeding. Id. at 1252-54.
Finally, we rejected the argument that the question of whether deportation is
a penalty under the Sixth Amendment is controlled by cases holding that deportation
was not a punishment under other provisions of the Constitution, such as the Ex Post
Facto clause. Id. at 1259-60. Instead, we reasoned that deportation is a penalty in
the Blanton analysis even if it is not considered a punishment under other provisions
of the Constitution. Id.
There is an obvious tension between the reasoning in Bado and Thomas
because the latter considered only the regulatory classification of SORA registration
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to conclude that it was not a penalty under Blanton. 2 This summary consideration
reflects that Thomas was a plain error case. In a subsequent in-depth consideration
where the issue was presented for plenary review by the court sitting en banc, Bado,
aware of Thomas, eschewed the mere regulatory classification inquiry and engaged
in a functional analysis grounded on the fact that the “law has enmeshed criminal
convictions and the penalty of deportation,” id. at 1252 (quoting Padilla, 559 U.S. at
365-66), deportation is an “integral part” of the proceeding, id. at 1254 (quoting
Padilla, 559 U.S. at 364), and “attaches to a criminal conviction,” id. at 1258, such
that it should be considered in an assessment of the severity of all penalties for a
criminal conviction. Therefore, we conclude that because in Bado the en banc court
undermined its philosophical basis, Thomas’s holding that SORA registration is not
a penalty for Sixth Amendment purposes is not binding.
Deciding that question now, we conclude that SORA registration is a penalty
under step one of the Blanton analysis. Even more than deportation, SORA
registration is enmeshed in the criminal proceeding; it is a direct, statutorily
mandated requirement that follows ineluctably from conviction and is ordered by
the trial court that imposes sentence. See D.C. Code § 22-4003.
2
As a result, Thomas did not address step two of the Blanton analysis—the
severity of combined penalties.
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D. SORA Registration and a Maximum Sentence of 180 Days Incarceration
Rebuts the Blanton Presumption Against a Jury Trial
Step two of the Blanton analysis asks whether, viewed in combination, the
maximum possible penalties that attend conviction are “serious,” as compared with
six months of incarceration. In this case, the question is whether SORA registration
and notification, when viewed in combination with a maximum sentence of 180 days
of incarceration and other attendant statutory penalties, rebuts the Blanton
presumption. We conclude that it does. 3
The government contends that SORA registration is not a sufficiently severe
penalty because (1) it imposes no physical restraints and is less severe than
probation, which the Supreme Court has stated is not sufficiently severe; and (2) the
stigma and other consequences associated with child sexual abuse charges flow not
3
Appellant also faced imposition of a $1,000 fine and up to five years of
probation. See D.C. Code §§ 22-3010.01(a), 22-3006, 22-3571.01(b)(4), 16-710(b).
Although part of the package of penalties we consider in assessing their overall
severity in Blanton step two, they add relatively minor weight in the Sixth
Amendment analysis. “Penalties such as probation or a fine may engender ‘a
significant infringement of personal freedom’ but they cannot approximate in
severity the loss of liberty that a prison term entails.” Blanton, 489 U.S. at 542(citation omitted).
17
from SORA’s registration and notification requirements but from the conviction that
is already a matter of public record. We disagree.
The Supreme Court has held that a five-year probation term is not a severe
penalty. See United States v. Nachtigal, 507 U.S. 1, 5 (1993) (per curiam). The
government’s argument that SORA’s registration and notification penalty resembles
probation, and by analogy to Nachtigal, is also not severe, however, is too facile.
First, the ten-year minimum—and in some cases lifetime—sex offender registration
far exceeds the five-year probation period in Nachtigal. Moreover, in Nachtigal the
statute authorized probation “[a]s an alternative” to incarceration. Id. at 2. In this
case, on the other hand, probation was in addition to, not in lieu of, incarceration and
the ten-year period of registration as sex offender was yet another requirement.
Blanton directs that the applicable penalties be “viewed in conjunction with the
maximum authorized period of incarceration.” 489 U.S. at 543. In Blanton, for
example, the Court assumed that the 90-day period of license suspension would run
during the time of incarceration and could be reinstated as a restricted license in
forty-five days; thus the suspension would be irrelevant when considering the
penalties together. Id. at 544-45. But in this case, the registration period is not
concurrent with any period of incarceration. D.C. Code § 22-4002(a). This makes
the duration of SORA sex offender registration, when viewed in conjunction with
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the maximum period of incarceration, significantly more burdensome than the
combined penalties in Blanton and Nachtigal. As we noted in Bado, the duration of
a penalty can “tip an otherwise presumed petty . . . offense into the serious offense
category.” 186 A.3d at 1250 n.13 (noting that “15-year license revocation,
considered together with the maximum six month prison term, is a severe enough
penalty to indicate that the Nebraska legislature considers third-offense DWI a
serious offense” (quoting Richter v. Fairbanks, 903 F.2d 1202, 1204 (8th Cir.
1990))). The Arizona Supreme Court has also determined that “[t]he duration of the
registration requirement makes this statutory consequence much more severe than a
comparatively short probation period.” Fushek v. State, 183 P.3d 536, 542 (Ariz.
2008) (en banc); see id. at 539 (holding that requirement of lifetime sex offender
registration triggers right to jury trial under Arizona Constitution, the text of which
is “virtually identical” and “construed . . . consistently” with the Sixth Amendment).
To say, as the government does, that sex offender registration is less severe than
probation, without exploring the specifics of the penalties that attend the particular
offense, does not satisfy Blanton’s analysis.
Although SORA’s registration and notification penalty does not, as the
government points out, impose “physical restraints” like incarceration, neither the
Supreme Court nor this court has held that actual physical containment is necessary
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to deem a penalty sufficiently severe. If it were, only incarceration and other
custodial arrangements would be considered and Blanton’s two-step analysis
considering all penalties in conjunction with incarceration, including civil ones,
would be a nullity. In Bado, we emphasized not only the removal of the defendant
from the country but also the disruption to a person’s life and the economic, family,
social, and psychological harms caused by removal. 186 A.3d at 1251. As an
example of psychological harm, when discussing the Court’s analysis in Blanton of
a 48-hour community service requirement while wearing clothing that identified the
defendant as a DUI offender, we noted that the Court “seemingly reserve[ed] the
possibility that a fuller record that showed a highly embarrassing or onerous
requirement could yield a different outcome.” Id. at 1249 & n.12 (citing Blanton,
489 U.S. at 545 n.10). That is the case here. Sex offender registration and
notification have serious negative consequences for registrants and their families,
including for their social relationships, education, employment, and psychological
health. Sex-offender registrants experience “humiliation and isolation,” lost or
jeopardized employment, employment opportunities, and housing opportunities.
See, e.g., E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997); J.J. Prescott & Jonah
E. Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal
Behavior? 54 J.L. & Econ. 161, 168 (2011) (noting the same). Even if it does not
entail custodial segregation, as does incarceration, or geographical separation, as
20
does deportation, sex offender registration identifies the registrant as dangerous and
disseminates information to the public that allows them to be shunned and denied
opportunities to live and work in their communities. These are not incidental
downstream effects, but intrinsic to SORA’s design to make the public aware of the
identity and location of sex offenders. 4
We are not persuaded by the government’s reliance on Smith v. Doe,
538 U.S. 84 (2003), to argue that the social stigma and other consequences
associated with sex offender registration cannot justify a jury trial. Smith was not a
Sixth Amendment jury trial case but a challenge to retroactive application of SORA
as a violation of the Ex Post Facto Clause of the Fifth Amendment. Id. at 92. As
we have already discussed, these cases are not controlling because they arise under
a different provision of the Constitution and involve a fundamentally different
4
SORA registration and public dissemination can operate to deny sex
offenders the benefit of statutory protections intended to help integrate persons with
criminal histories into work and housing in the community. District of Columbia
law prohibits employers and housing providers from “inquir[ing] about” or
“requir[ing] an applicant to disclose” a criminal conviction before making a
conditional offer. D.C. Code § 32-1342(b) (employment); id. § 42-3541.02(b)(1)
(housing). A conditional offer of employment may be withdrawn only for “a
legitimate business reason,” id. § 32-1342(d), and a conditional offer of housing only
if the applicant was convicted within seven years of an offense listed in the statute.
Id. § 42-3541.02(d). Misdemeanor child sexual abuse is not one of the listed
offenses. Complaints of violations are handled by the D.C. Office of Human Rights.
Id. § 32-1342(e) (employment); id. § 42-3541.04(a) (housing). SORA effectively
carves out an exception to these protections.
21
analysis that revolves around legislative intent: whether in enacting SORA the
legislature crafted a civil, regulatory scheme or intended to impose a “punishment.”
Id. The question before us with respect to the right to jury trial is not whether the
legislature had a punitive intent but whether the complement of statutorily imposed
penalties—of which SORA registration is a part—“clearly reflect[s] a legislative
determination that the offense in question is a ‘serious’ one.” Blanton, 489 U.S. at
543. Smith’s “determination that respondents [could not] show, much less by the
clearest proof, that the effects of [SORA registration] negat[ed the legislature’s]
intention to establish a civil regulatory scheme,” 538 U.S. at 105, is therefore not
dispositive of whether SORA registration, viewed in combination with the other
maximum penalties for conviction of misdemeanor child sexual abuse, is sufficiently
onerous for Sixth Amendment purposes. We reiterated the importance of this
distinction recently in Hickerson v. United States, 287 A.3d 237, 241 n.4 (D.C.
2023), noting that “there are penalties that trigger the Sixth Amendment’s right to a
jury trial but are not punishments under the Ex Post Facto Clauses.” Id. Thus, it is
appropriate to consider the social stigma and other real-life consequences of sex
offender registration to “shed[] . . . light on th[e] distinct Sixth Amendment
question.” Id.22
Extensive social science research—unchallenged by the government—
supports the conclusion that sex offender registration has serious negative
consequences for registrants. 5 State supreme courts have reached the conclusion
that SORA registration results in harm to the registrant distinct from that resulting
from the underlying conviction. See, e.g., Doe v. Dep’t of Pub. Safety & Corr.
Servs., 62 A.3d 123, 142 (Md. 2013) (concluding that “the harms caused by
dissemination . . . render[ed]” Maryland’s sex offender registration law “the
equivalent of the punishment of shaming” and noting examples of lost housing
“quite similar to expulsion from the community” (emphasis added)); Doe v. State,
5
See, e.g., Erika Davis Frenzel et al., Understanding Collateral Consequences
of Registry Laws: An Examination of the Perceptions of Sex Offender Registrants,
11 Just. Pol’y J. 1, 18 (2014) (“[T]he collateral consequences [of registration] such
as loss of jobs, housing, friends, and continued physical, verbal, and emotional
harassment follows offenders long after they have served their prison sentences and
paid their fines.”); Prescott & Rockoff, supra, at 168 (“This publicity can lead to
negative consequences for sex offenders, including loss of employment, housing, or
social ties; harassment; and psychological costs such as increased stress, loneliness,
and depression.”); Richard Tewksbury, Collateral Consequences of Sex Offender
Registration, 21 J. Contemp. Crim. Just. 67, 75 (2005) (finding that 42.7% of
surveyed registrants had lost a job, 45.3% had lost a place to live, 47% were harassed
in person, and 16% had been assaulted as a result of registration and notification);
Jill S. Levenson & Leo P. Cotter, The Effect of Megan’s Law on Sex Offender
Reintegration, 21 J. Contemp. Crim. Just. 1, 49 (2005) (finding 27% of surveyed
registrants lost a job, 35% had to move, 33% were threatened or harassed by
neighbors, and 21% experienced property damages as a consequence of community
notification); Human Rights Watch, No Easy Answers: Sex Offender Laws in the US
86-92 (Sept. 2007), https://www.hrw.org/sites/default/files/reports/us0907webwco
ver.pdf; https://perma.cc/5C3J-B8XQ (reporting examples of “vigilante violence”
resulting from community registration and notification).
23
189 P.3d 999, 1011 (Alaska 2008) (citing evidence that sex offenders “had lost their
jobs, been forced to move from their residences, and received threats of violence
following establishment of the registry, even though the facts of their conviction had
always been a matter of public record” (emphasis added)). 6
As the Supreme Court of Alaska explained,
[t]here is a significant distinction between retaining public
paper records of a conviction in state file drawers and
posting the same information on a state sponsored website;
this posting has not merely improved public access but has
broadly disseminated the registrant’s information, some of
which is not in the written public record of the conviction.
Doe, 189 P.3d at 1011. The same is true here. The District of Columbia’s SORA
registration and notification provisions “are comparable if not identical to those
imposed by the sex offender registration laws enacted in numerous other
jurisdictions, including those of Alaska and Connecticut.” In re W.M., 851 A.2d at
435-36.
6
In the Doe cases from Maryland and Alaska cited in the text, the supreme
courts of those states applied their state constitutions and, focusing on the harm to
the registrants, concluded that retroactive imposition of SORA registration was an
ex post facto punishment.
24
The District of Columbia’s online sex offender registry, 7 maintained by the
Metropolitan Police Department, publishes more personal information than what
would otherwise be easily accessible in public court records. 8 In addition to the
offender’s name, the online sex offender registry includes the offender’s photograph,
physical description, date of birth, and home, work, and school addresses—none of
which are easily accessible to the public in court documents. See D.C. Code
§ 22-4007(a)(2)-(3); In re W.M., 851 A.2d at 434. It also includes the crime of
conviction that led to the registration and the age of the victim. See D.C.
Code § 22-4007(a)(4). It is searchable by the registrant’s name and location. This
enhanced access and publicity is critical to SORA’s purpose of protecting the public
from sex offenders by making it easier for community members to identify and avoid
offenders. See In re W.M., 851 A.2d at 438. Accordingly, we too conclude that “the
harmful effects of []SORA stem not just from the conviction but from the
registration, disclosure, and dissemination provisions.” Doe, 189 P.3d at 1011.
7
See Sex Offender Registry, DC.gov, https://sexoffender.dc.gov/;
https://perma.cc/B3MP-SAFL (last visited Feb. 10, 2023).
8
The public has online access to D.C. Court records through eAccess, but not
everything is viewable as noted in the eAccess System User Guide. See District of
Columbia eAccess User Guide 9 (2022),
https://www.dccourts.gov/sites/default/files/portal/eAccess_User_Guide_2022.pdf;
https://perma.cc/VC86-62BU.
25
These statutory requirements are powerful evidence that the legislature views
misdemeanor child sexual abuse as a serious offense. “SORA was adopted to protect
the public, and especially minors, from the threat of recidivism posed by sex
offenders who have been released into the community.” In re Doe, 855 A.2d at
1102; In re W.M., 851 A.2d at 441-42. Misdemeanor child sexual abuse is the only
misdemeanor to qualify as a Class B registration offense—all other Class B offenses
are punishable by at least five years of imprisonment, and all Class C registration
offenses are punishable by at least two years of imprisonment. 28 C.F.R. § 811,
App. A; D.C. Code § 22-4001(8)(D). This reflects the legislature’s judgment that
sex offenses involving minors “are among the most serious of all crimes both in
terms of their impact on victims and in terms of the degree of fear and concern they
engender in the general public.” The Sex Offender Registration Act of 1999, D.C.
Council Comm. on the Judiciary, Report on Bill 13-350 at 3 (Nov. 15, 1999).
The negative consequences that flow from registration as a sex offender are
commensurate with the legislature’s expressed view that SORA applies to the most
serious offenses.
26
IV. Conclusion
The legislature has deemed that enhanced disclosure and publicity about sex
offenders is critical to SORA’s purpose of protecting the public by making it easier
for residents to identify and, as necessary, avoid interacting with offenders. We do
not question that policy decision. Our task is to determine whether what helps to
protect the public, conversely, imposes serious negative consequences on the
registrant to such an extent that the protection of the Sixth Amendment guarantee to
a jury trial should be interposed before the registration requirement is triggered by
conviction. We hold that SORA’s registration and notification is a Blanton
“penalty,” and that, when viewed together with the 180-day maximum period of
incarceration and up to five years of probation for misdemeanor sexual abuse of a
minor, sex offender registration overcomes the presumption that appellant was
charged with a petty offense and triggers the Sixth Amendment right to a trial by
jury. Because appellant was denied his rightful demand for a jury trial, the
convictions are reversed and the case is remanded for further proceedings.
So ordered.
27
MCLEESE, J., Associate Judge, concurring: I fully concur in the opinion for
the court. I write separately only to acknowledge this court’s prior unpublished
decision in Intriago v. United States, Nos. 17-CM-578, 19-CO-19, Mem. Op. & J.
(D.C. May 12, 2020). In that case, the court concluded that controlling precedent
from this court precluded the claim that the requirement of sex-offender registration
entitles defendants charged with misdemeanor sexual abuse to a jury trial. Id. at 3-5.
That unpublished decision is not binding precedent. E.g., O’Rourke v. D.C. Police
& Firefighters’ Ret. & Relief Bd., 46 A.3d 378, 383 n.9 (D.C. 2012); D.C. App. R.
28(g). I was a member of the division that decided Intriago. On further reflection
in this case, however, I have come to agree that our prior decisions in this area have
been substantially undermined by our en banc decision in Bado v. United States,
186 A.3d 1243 (D.C. 2018). A petition for rehearing en banc is pending in Intriago,
and the court in that case will need to address that petition in light of our precedential
decision in the present case.