Doe v. Department of Public Safety & Correctional Services

Concurring Opinion by

HARRELL, J.

I write separately because, although I would give John Doe relief, I would not grant relief on the same basis as the Plurality opinion. Instead, I would direct specific performance of Mr. Doe’s guilty plea, not to include requirement of registration as a child sexual offender.

The Plurality opinion posits its granting of relief solely on its ex post facto analysis under Article 17 of the Maryland Declaration of Rights. I would not do so. The reasoning of the Plurality opinion is faulty and, therefore, so is its conclusion. To my mind, a correct reading of Article 17 and the most relevant cases leads to the conclusion that Doe is not entitled to the relief he seeks on the constitutional arguments he makes.

Since 2009, several amendments to the Maryland Sex Offender Registration Act have been adopted, including, but not limited to: (1) adding juvenile sex offenders to the list of those who must register; (2) requiring registration statements to include a list of aliases, electronic email addresses, computer screen names, or any name by which the registrant had been legally known; (8) requiring tier III offenders (such as Doe) to register in person every three months for life; (4) requiring that registrants provide three days notice after changing addresses; (5) ordering registrants to notify law enforcement, prior to the relocation, when the registrant obtains a temporary residence or changes the location where the registrant resides or “habitually lives” for more than 5 days; (6) requir*570ing homeless registrants to register in person with the local law enforcement in each county where the registrant habitually lives; (7) publicize registration information on the Internet; and (8) granting the Department of Public Safety and Correctional Services and law enforcement the discretion to provide notice of a registration statement or a registrant’s change of address to whomever they deem necessary so as to protect the public from the registrant. See Md.Code (2008 Repl.Vol., 2010 Supp.), Crim. Proc. Art., §§ 11-701, 11-705, 11-706, 11-717, 11-718.

Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Young v. State, 370 Md. 686, 806 A.2d 233 (2002), are the two leading cases addressing ex post facto challenges to sex offender registration statutes.1 Both cases employ the “intent-effects” test to determine whether a statute violates ex post facto clauses: first, the court must consider the legislative intent of the statute; second, even if the statute’s stated purpose is non-punitive, the court must assess whether its effect overrides the legislative purpose to render the statute punitive.2 Smith, 538 US. at 92, 123 S.Ct. at 1146-47, 155 L.Ed.2d at 176 (2003). To assess the effects of a statute, a *571court must consider several factors, derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d'644 (1963).3 Smith and Young held that the statutes at issue were intended as civil remedies because the primary government interest was to protect the public from sex offenders. Smith, 538 U.S. at 93-94, 123 S.Ct. at 1147, 155 L.Ed.2d at 177; Young, 370 Md. at 712, 806 A.2d 233, 248.

Although the Maryland registration statute does not state expressly its legislative purpose, the Court of Appeals found in Young that the statute’s overall design and plain language indicate that it was intended as a “regulatory requirement” aimed to protect the public rather than to punish or stigmatize offenders. Young, 370 Md. at 712, 806 A.2d at 248. This was true, the Court noted, even if the 2002 statute was codified (as is the current registration statute) in the Maryland Criminal Procedure Article, or even if registration is triggered by a criminal conviction. Id. at 712, 714, 806 A.2d at 248-49. The Supreme Court in Smith also came to the same conclusion, even if Alaska — similar to Maryland — required that defendants be notified about the statute’s requirements. Smith, 538 U.S. at 95-96, 123 S.Ct. at 1148-49, 155 L.Ed.2d at 178-79; see also Md. Rule 4-242 (2012).

Nevertheless, significant revisions to the Maryland registration statute have occurred since the Young court reviewed the statute in 2002. The Supreme Court in Smith and the Court of Appeals in Young concluded that registration statutes traditionally have “not been regarded as punishment,” 370 Md. at 714, 806 A.2d at 250, particularly if the State does not make “the publicity and the resulting stigma an integral part of the *572objective of the regulatory scheme” but rather to protect the public. Smith, 588 U.S. at 98-99, 128 S.Ct. at 1150, 155 L.Ed.2d at 180-81. Disseminating registrants’ basic registry information, without further government involvement, is a reasonable civil deterrent remedy. Young, 370 Md. at 714-15, 806 A.2d at 250; see also Smith, 538 U.S. at 102-103, 123 S.Ct. at 1152, 155 L.Ed.2d at 183. Yet, the Supreme Court noted that if a state provides the public “with means to shame the offender by, say, posting comments underneath his record” on the registry web site, dissemination of registry information may resemble the public shaming punishments of the colonial period. Smith, 538 U.S. at 99, 123 S.Ct. at 1150-51, 155 L.Ed.2d at 181. Currently, the Maryland registry web site allows any person to post comments, that are available for the public to view, below a registrant’s profile.

A second factor to consider is whether the registration statute imposes impermissibly an affirmative disability or restraint on registrants. A registration statute involves an affirmative disability or restraint when either result would occur, apart from consequences common to registering as a sex offender, such as inability to find work or housing due to employers’ or landlords’ routine background and criminal checks, or seeking permission before changing jobs or residences. Id. at 100, 123 S.Ct. at 1151, 155 L.Ed.2d at 181-82. In-person registration requirements, however, may involve punitive restraints. Id. Currently, Maryland’s registration statute, as noted above, requires in-person registration for tier III offenders, such as Doe, every three months for life. See Md.Code, Crim. Proc. Art., § 11-707(a).

The Young court recognized that, although basic registrant-identifying information was “not unreasonably burdensome,” the community notification provisions of the statute imposed “highly stigmatizing” labels. 370 Md. at 713, 806 A.2d at 249. These labels carried “the potential for social ostracism” because the statute allowed for dissemination of non-public and sensitive information about registrants, such as treatment received for personality disorder or a mental abnormality. Id. This risk is present potentially with Maryland’s statute, which *573requires registrants to inform the State on every change of location, including any place in which a registrant “habitually lives” or stays for more than five days, and also allows the Department or law enforcement to share the information with anyone when it is necessary to do so to protect the public. See Md.Code, Crim. Proc. Art. §§ 11-705(i), 11-718(a).

Furthermore, both Smith and Young relied on the state legislatures’ conclusions that sex offenders pose a substantial risk of recidivism. See Smith, 538 U.S. at 102, 123 S.Ct. at 1152, 155 L.Ed.2d at 183; Young, 370 Md. at 715, 806 A.2d at 250. A state can use reasonable means to legislate with regard to convicted sex offenders as a class; thus, requiring an “individual determination of their dangerousness” does not convert the statute into a punishment under the ex post facto clause. Smith, 538 U.S. at 103-04, 123 S.Ct. at 1153, 155 L.Ed.2d at 183-84. As long as a registration statute is tailored narrowly to prevent repetition of sex offenses and requires only qualifying sex offenders to register, as the Court found § 792 did in Young, it is not excessive in its deterrent purpose. See Young, 370 Md. at 715, 806 A.2d at 250.

New research since 2002, however, presents a different policy perspective to Young’s holding. Applying such a broad-reaching statute like Maryland’s to any qualifying sex offender without particularized determinations of recidivism may undermine the law’s intent to prevent the repetition of sex offenses Indeed, recent research reports that broad-reaching sex offender registration and notification laws do not reduce recidivism by sex offenders. See, e.g., Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of Criminal Laws that Have Swept the Country, 58 Buff. L.Rev. 1, 58-59 (2010) (noting that, “[djespite the persistent statements that expansive sex offender registration laws are essential tools to protect the community,” the efficacy of such laws is in doubt); see also Human Rights Watch, No Easy Answers: Sex Offender Laws in the U.S. 21-33 (Sept.2007). Several states have used such findings to hold that their sex offender registration statutes constitute retroactive punishment in violation *574of state or federal prohibitions of ex post facto laws, primarily based on the lack of any determination of future dangerousness before or after an offender is required to register. See, e.g., State v. Williams, 129 Ohio St.Sd 344, 952 N.E.2d 1108, 1113 (2011); State v. Letalien, 985 A.2d 4 (Me.2009); Wallace v. State, 905 N.E.2d 371 (Ind.2009); Commonwealth v. Baker, 295 S.W.3d 437 (Ky.2009); Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).

The Court in Young noted that the consequences of the 2002 Maryland registration statute’s widespread community notification — namely, stigmatization, social ostracism, loss of employment, and harassment — implicate liberty and privacy interests inherent to due process. 370 Md. at 713, 806 A.2d at 249. To raise a successful due process challenge involving damage to reputation, the “stigma-plus test” requires that, in addition to harming the plaintiffs reputation, the state’s conduct must have harmed the plaintiff in an additional way. Doe v. Dep’t of Pub. Safety & Corr. Servs., 185 Md.App. 625, 644, 971 A.2d 975, 986 (2009). The “plus” factor is met either by a violation of a “fundamental right” guaranteed by the U.S. Constitution or “the denial of a state-created property or liberty interest such that the Fourteenth Amendment’s Due Process Clause is violated.” Id. at 639, 643-44, 971 A.2d at 983-84, 986-87 (quoting Cooper v. Dupnik, 924 F.2d 1520, 1532 n. 22 (9th Cir.1989)). Conversely, procedural due process guarantees an opportunity for a hearing to establish a material fact when a claimant has suffered a deprivation of life, liberty, or property. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 1162-63, 155 L.Ed.2d 98, 102 (2003).

Doe contends that the statutory requirements harmed his reputation and his “fundamental” rights to property, privacy, and employment, and that he has a procedural due process right to an individualized determination of his imputed dangerousness. A correct interpretation of relevant precedent, however, does not support Doe’s arguments. As to Doe’s *575substantive due process claim,4 while there is no fundamental right to employment, the Court of Special Appeals has held that the Maryland internet database sex offender registry does not violate the right to privacy because a registrant’s photograph and criminal record are “ ‘already fully available to the public and [are] not constitutionally protected.’ ” Doe, 185 Md.App. at 645-47, 971 A.2d at 987-88 (citing Russell v. Gregoire, 124 F.3d 1079, 1093-94 (9th Cir.1997)). Moreover, apart from his own testimony, Doe presented no evidence in the Circuit Court or in his brief to support his claims that he has been unable to find sustainable work or that he is suffering financially.

Second, the U.S. Supreme Court’s decision in Connecticut Department of Public Safety v. Doe forecloses Doe’s argument that he is entitled to a hearing before being required to register. In Connecticut Department, the Court held that procedural due process did not entitle a sex offender to a hearing to determine dangerousness before being required to register because the offender’s present dangerousness was irrelevant to the statute’s registration requirement. 538 U.S. at 4, 123 S.Ct. at 1162-63, 155 L.Ed.2d at 102. The Court relied on the finding that conviction of a qualifying offense is the sole factor in determining whether an individual must register as a sex offender — individual dangerousness is irrelevant. See id. at 5, 123 S.Ct. at 1163, 155 L.Ed.2d at 103-04. The Court of Special Appeals agreed with the Supreme Court’s reasoning in addressing the same issue under Maryland’s sex offender registration statute in Doe v. Department of Public Safety & Correctional Services, 185 Md.App. at 634-36, 971 A.2d at 980-82. Even if Doe was deprived of a protected interest, he does not have a due process right to a hearing because individual dangerousness is irrelevant to the registration requirement.

*576All is not lost, however. I am persuaded by Doe’s argument that, on this record, he is entitled to specific performance of the plea agreement in this case. Doe and the State contend that the plea agreement’s silence as to sex offender registration supports their arguments. Determining the meaning of a sentencing term in a plea agreement requires strict adherence to the “four corners” of the plea agreement as established in the Maryland Rule 4-243 plea proceeding and to “due process concerns for fairness and adequacy of procedural safeguards.” Cuffley v. State, 416 Md. 568, 580-581, 7 A.3d 557, 563-65 (2010) (quoting Solorzano, 397 Md. 661, 668, 919 A.2d 652, 656 (2007)).5 Extrinsic evidence is irrelevant to identify the agreement’s terms; rather, the terms are limited to what a reasonable lay person in the defendant’s position would have understood to be the terms of the plea agreement. Id. at 582-83, 7 A.3d at 563-65. Any ambiguities in the record concerning the agreement’s terms are resolved in the defendant’s favor. Id. at 583, 7 A.3d at 566.

In the present case, the Maryland Rule 4-243 hearing record from 2006 does not indicate that sex offender registration was a term of Doe’s plea agreement. The plea agreement was limited to a five-year term, and it was only at the sentencing hearing that the judge ordered Doe to register as a sex offender. Assuming that a registration term would be included in an agreement at Doe’s 2006 plea hearing, a reasonable person in Doe’s position likely would understand that registering as a sex offender was not a part of the agreement. See id. at 581-83, 7 A.3d at 564-66. The prosecutor’s testimony at the hearing in 2010 on the present declaratory judgment relief, as to what she and Doe’s attorneys discussed before the plea hearing, is irrelevant. See id.

Furthermore, the policy arguments of good faith and efficiency of plea negotiations support using the Cuffley approach *577in this case. One primary concern to the majority in Cuffley was the potential risk that defendants would not understand the nature of the agreement before pleading guilty. 416 Md. at 583, 7 A.3d at 566. This risk may be present when plea terms to which a defendant agreed change retrospectively. Second, permitting retrospective application of the Maryland Act may discourage defendants to plead guilty, since defendants must have some reasonable assurance that the benefit promised in their plea agreements will not be withdrawn in the future, as the Amicus Brief argues here. This is significant in the state criminal justice system, where ninety-four percent of state convictions result from guilty pleas. See Missouri v. Frye, -U.S. -, -, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379, 389 (2012); see also State v. Brockman, 277 Md. 687, 693, 357 A.2d 376, 380-81 (1976).

Accordingly, I would reverse the judgment of the Court of Special Appeals, remand to that court with directions to reverse the judgment of the Circuit Court for Washington County and direct the Circuit Court to enter a declaratory judgment consistent with the views expressed here, including any further proceedings required to enforce specifically Doe’s plea agreement, which does not include him having to register as a sex offender as the result of the crime he committed in 1984.

. In Smith, the Supreme Court considered the Alaska sex offender registration statute, which: (1) required registration with state or local law enforcement authorities; (2) publicized registration and non-confidential information on the Internet; and (3) applied retroactively to offenders who had been convicted before the law's enactment Smith, 538 U.S. 84, 90-91, 123 S.Ct. 1140, 1145-46, 155 L.Ed.2d 164, 174-76 (2003). In Young, the Court of Appeals considered whether the 2002 sex offender registration statute, then codified as Maryland Code Article 27, § 792 (now § 11-701 of the Criminal Procedure Article) was an additional penalty that required a jury trial to prove the actual conditions precedent to registration. Young v. Maryland, 370 Md. 686, 690, 806 A.2d 233, 235 (2002).

. In his dissent, Justice Stevens advocated a different analytical approach to an ex post facto challenge: looking at the Act’s application and effect, he distinguished other cases in which the ex post facto challenge was rejected on the ground that, unlike other cases, "a criminal conviction under these [analogous] statutes provides both a sufficient and a necessary condition for the sanction.” Smith, 538 U.S. at 112, 123 S.Ct. at 1157-5, 155 L.Ed.2d at 189 (Stevens, J., dissenting) (emphasis in original).

. The relevant factors include, but the analysis is not limited to: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been regarded historically as punishment; (3) whether its operation will promote the traditional aims of punishment: retribution and deterrence; (4) whether the behavior to which it applies is a crime already; (5) whether the law has a scienter requirement; (6) whether it lacks an alternative purpose to which it may be connected rationally; and (7) if such an alternative does exist, whether the statute appears excessive in relation to the alternative. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 660-62.

. In an unpublished opinion, the Court of Speeial Appeals declined to address Doe's substantive due process claim because he waived it by failing to raise the claim in his initial brief.

. In Cuffley, the Court considered the legality of a defendant’s sentence that exceeded the incarceration guidelines, but suspended all but part of the sentence that fell within the guidelines, as agreed to in the defendant's plea agreement. 416 Md. at 577, 7 A.3d at 562.