The reasoning behind a September 2013 Oklahoma Supreme Court decision striking down a portion of the Oklahoma sex offender registry law appears to call into question portions of the Oklahoma violent offender registry law.
In Hendricks v Jones, 2013 OK 71 the court stated: “We hold applying SORA’s requirements to sex offenders now residing in Oklahoma who were convicted in another jurisdiction prior to SORA’s enactment but not applying the same requirements to a person convicted in Oklahoma of a similar offense prior to SORA’s enactment violates a person’s equal protection guarantees.”
That was the court’s third strike this year against legislators’ ambitions to require registration of sex offenders in Oklahoma, no matter when or where they committed an offense. The court earlier this year struck down ex post facto provisions of the same law.
Another Ex Post Facto Law Still on the Books?
In the chapter immediately following the Sex Offender Registration Act (Okla. Stat. tit, 57, § 581-590.2), another law requires registration by certain violent criminals. The Mary Rippy Violent Crime Offenders Registration Act includes an ex post facto provision for out-of-state offenders that goes well beyond the requirements for in-state offenders. (Okla. Stat. Tit, 57, § 593 2004)
The Oklahoma violent offender registry law applies to:
- Any person residing, working or attending school in this state who is subsequently convicted of, or who receives a deferred judgment or suspended sentence for, any crime or attempted crime enumerated in subsection B of this section by any court in this state, another state, the United States, a tribal court, or a military court; or
- Any person who subsequently enters this state for purposes of residence, work or to attend school and who has been previously convicted of or is subject to a deferred judgment, suspended sentence, probation or parole from any court of another state, the United States, a tribal court, or a military court for any crime or attempted crime which, if committed or attempted in this state, would be a crime substantially similar to any crime enumerated in subsection B of this section.
In other words, those living in the state after the law was passed who are convicted of a violent crime described in the act must register. But anyone who enters the state who was ever convicted of a violent crime must also register. That language applies the ex post facto provision only to those who enter the state after the law was passed.
Those are exactly the unequal circumstances the Supreme Court cited in Hendricks v Jones with regard to sex offender registration. The Dept. of Corrections had required a man who moved to Oklahoma in 200 to register for an out of state conviction 26 years earlier. A person who had been similarly convicted within Oklahoma would not be required to register.
The court said the disparity put the man in a different legal status simply because he had lived out of state. The differential treatment impaired his right to equal protection under the law.
Now, as the famous baseball umpire Bill Klem said about an errant pitch, “It’s nothing until I call it.”
The violent crimes registration act has a “nothing until I call it” clause. The law only applies to certain violent offenses, including first and second degree murder, shooting with intent to kill, assault with intent to kill, bombing and “abuse.” As for abuse, the requirement to register for a crime of abuse shall be determined by the judge at the time of sentencing or upon granting the defendant a deferred judgment. (Okla. Stat. tit, 57, § 593 D1 2008)
Who Must Enroll in the Oklahoma Violent Offender Registry?
What’s more “Not every offense enumerated in paragraph 1 of this subsection shall require automatic registration under the Mary Rippy Violent Crime Offenders Registration Act.” (Okla. Stat. tit, 57, § 593 D2 2008)
So, if not every enumerated offense requires registration, who is required to register? For some people that could be important, since failing to register is a felony, punishable by up to five years in prison.
Chances are the number of individuals required to register under the violent offender registration law is significantly less than the number registered under the sex offender registration law. And the number of those required to register ex post facto for out-of-state offenses – if any – may be far less than those notified by the Dept. of Corrections prior to the court’s September, 2013 decision that they must register for long ago, far away offenses under the sex offender registration act.
The Tulsa criminal defense attorneys at Wirth Law Office would be very interested to know who, if anyone, has ever received notice from the Oklahoma Dept. of Corrections that they must register for out-of-state offenses committed prior to November 1, 2004.
That’s not to say we don’t recognize the legislatures wisdom in passing a violent offender registration act. As the Oklahoma Supreme Court justices stated in their decision striking portions of the sex offender registration act, the legislature has a legitimate goal of providing information to the public that would allow the public to take precautions.
But we also agree with the court that the constitutional provision that assures every person equal protection under the law is an important safeguard that must be upheld. Legislators cannot cut constitutional corners if they want to pass laws that stand the test of time.
Free Consultation: Tulsa Criminal Defense Attorney
If you were required to enroll in the Oklahoma violent offender registry for an offense committed out of state prior to Nov. 1, 2004, or were required to register for a crime of “abuse” without a judicial determination that your offense amounted to abuse under the act, contact Wirth Law Office’s Tulsa attorneys at (918) 879-1681 or toll free at (888) Wirth-Law. If you prefer written correspondence, you may submit a question through the form at the top right of this page.