By Darren Smith, Weekend Contributor
A recent case before the Washington Court of Appeals for Division I highlights what has as a direct result of an increasingly punitive legislation become a perilous trap for a homeless, mentally handicapped citizen–and by extension likely many more.
In February 1998, when he was 23 years old, Jayson Lee Boyd had sex with a 15 year old. On May 27, 1999, Boyd pleaded guilty to Rape of a Child in the Third degree. Boyd was sentenced on July 29, 1999. He has not committed a sex offense since his original conviction. Nevertheless, he is required to register as a sex offender under RCW 9A.44.130 and RCW 9A.44.140. Since his original conviction in 1999, Boyd has been convicted of failure to register as a sex offender three times, all in Skagit County.
Thus his station in life: Seemingly perpetual incarceration is his future.
Boyd is homeless, has a 9th or 10th grade education, and is mentally ill. At the time of his crime in 1998, homeless sex offenders were not required to register as sex offenders because they did not have addresses. (Former RCW 9A.44.130 (1998); State v. Pickett, 95 Wn. App. 475, 478, 975 P.2d 584 (1999)). The legislature subsequently amended RCW 9A.44.130 to require homeless sex offenders who lacked a fixed address to update the county sheriff weekly, in person, of their whereabouts. Laws of 1999, 1st Spec. Sess., ch. 6, §§ 1-3; former RCW 9A.44.130 (2000); former RCW 9A.44.130 (2011).
Boyd largely complied with the registration requirement but pleaded guilty to crimes of failure to register in 2009, 2010, and 2013. After his most recent release from confinement, Boyd has registered a change of address with the Skagit County sheriff more than 20 times. Boyd registered as a transient on December 11, 2014 and checked in weekly for the next six weeks. He failed to check in with the sheriff during the last week of January and the first two weeks of February 2015.
In March 2015, the State charged Boyd with failure to register as a sex offender between January 27, 2015 and February 10, 2015. The court ordered a competency evaluation after Boyd rambled incoherently during a pretrial hearing. A month later, after Boyd was found competent to stand trial, the court held another hearing. At that hearing, the court issued a scheduling order, which Boyd signed, setting the next hearing date for November 6, 2015. While explaining the order to Boyd, however, the court misspoke—it told Boyd that he needed to appear on December 6, 2015. After Boyd failed to appear on November 6, 2015, the State amended the information to add a charge for bail jumping.
Boyd was convicted by a jury as charged and sentenced to 45 months in prison.
Boyd appealed his conviction arguing that:
- The current sex offender registration statute, as applied, violates the ex post facto clause of the state and federal constitutions.
- There was insufficient evidence to convict him of failure to register and bail jumping.
- The trial court abused its discretion by denying his motion for a mistrial based on prosecutorial misconduct.
- The trial court incorrectly denied his proposed reasonable doubt instruction.
Ultimately, two of the appellate judges rejected each of the claims raised by Boyd–see slip opinion HERE.
In her dissent, Judge Mary Kay Becker established what I believe to be not only a compelling argument for releasing Mr. Boyd, It should be used a template for which the legislature needs to readdress existing Sex Offender Legislation.
I respectfully dissent. In 1998, when appellant Jayson Boyd committed a sex offense, registrants had no in-person reporting requirements. Now, a registrant like Boyd who lacks a fixed residence must report in person to the county sheriff at least 52 times each year. If Boyd had not been subjected to the statutory amendment enacted in 1999, he would have been free of the registration statute long ago and the legal jeopardy it has put him in repeatedly for failure to report. His 2015 conviction for failure to show up at the sheriff’s office to provide a weekly update is an ex post facto violation and should be reversed and dismissed.
In 1998, when Boyd was 23 years old, he had sex with a 15-year-old and was convicted in Skagit County of third degree child rape, a class C felony. He was given a standard range sentence of 15 to 20 months. Under the then-existing version of the registration statute, a class C felony sex offense conviction carried with it a registration requirement that ended 10 years after the offender’s release from confinement. Former RCW 9A.44.140(1)(c) (1997). Those who were subject to the statute were required to register with the county sheriff, to provide an “address” and other information, and to give the sheriff written notice of any change of “residence address” within a few days of moving. Former RCW 9A.44.130(1)-(4) (1997). Failing to register or update information when a change occurred was defined as either a class C felony or a gross misdemeanor. Former RCW 9A.44.130(7) (1997). There was no requirement for in-person reporting.
In 1999, legislators learned that the statute as written did not apply to sex offenders who lacked a fixed residence. State v. Pickett, 95 Wn. App. 475, 479-80, 975 P.2d 584 (1999). The defendant in Pickett was homeless and lived on the street, sometimes staying overnight in parks and sometimes on sidewalks. Although he registered an address in Everett, he was later found to be staying in and around Westlake Park in Seattle. He was charged and convicted of failing to register. This court reversed the conviction for insufficiency of the evidence. We held that the statute did not contemplate the situation of a person who did not have a “residence” as that term is commonly understood. Pickett, 95 Wn. App. at 479.
Responding to Pickett, the legislature amended the statute in 1999 to apply to sex offenders “whether or not the person has a fixed residence.” Laws of 1999, 1st Spec. Sess., ch. 6, §§ 1, 2; former RCW 9A.44.130(1) (1999). Transients were required to report to the sheriff in person weekly or monthly, depending on their level of risk. Former RCW 9A.44.130(6)(b) (1999).
More recent amendments have made the reporting requirement still more onerous. As of 2002, transient offenders must report in person once a week regardless of their risk level. Former RCW 9A.44.130(6)(b) (2002). Since 2010, failure to register is a class B felony when the offender has one or more previous convictions for failure to register. RCW 9A.44.132(1)(b). Another change is that all transient offenders are now subject to disclosure of information to the public at large, regardless of their risk assessment. RCW 9A.44.130(6)(b).
Boyd is required to make weekly in-person reports every Monday between 8:30 a.m. and noon at the Skagit County Sheriff’s Office in Mount Vernon. During these weekly check-ins, Boyd must provide a written list of the places where he has slept for the past week. Examples of Boyd’s entries include “Hwy 9,” “Concrete apt. #3 behind bakery,” and “Concrete fishing.” Boyd has occasionally missed his weekly visit to the sheriff’s office. He has convictions for failure to register in 2009, 2010, 2013, and, most recently, in 2015—the conviction challenged in this appeal. For the 2015 conviction, Boyd is currently serving a 45-month prison term.
Boyd’s duty to check in every week in person after he is released will continue for many years and perhaps for his entire life if the statute as presently written is applied to him. The duty to register continues indefinitely for a sex offender whose conviction was for a class A felony or who has a previous conviction for a sex offense. RCW 9A.44.140(1). It continues for 15 years from the last date of confinement if the conviction is for a class B felony and the offender has no previous sex offense convictions. RCW 9A.44.140(2). For an offender whose only sex offense conviction is a class C felony, the duty to register can end 10 years after release from confinement. RCW 9A.44.140(3). But the 10-year and 15-year end dates present a moving target. They arrive only if the person spends the 10- or 15-year period in the community without being convicted of a “disqualifying offense” during that time period. RCW 9A.44.140(2), (3). A disqualifying offense is a conviction for any felony. RCW 9A.44.128(3). A conviction for failure to register is a felony. Even though Boyd’s initial sex offense conviction was for a class C felony, every time he is convicted of failure to register, the clock starts anew and his duty to report weekly is extended. An offender who has a duty to register may petition for relief from the reporting requirement under narrow circumstances set forth in RCW 9A.44.142, but even in those circumstances, relief is difficult to obtain and entirely discretionary. RCW 9A.44.142(4).
The question before this court is not whether the registration statute is unconstitutional as presently written. The question is whether the statute as presently written is unconstitutional when applied to persons without a fixed residence whose offenses were committed before 1999. An otherwise valid statute or regulation becomes an unconstitutional ex post facto violation when it “increases the quantum of punishment annexed to the crime when it was committed.” State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994). The quantum of punishment annexed to Boyd’s crime when it was committed has been increased by amendments to the registration statute.
The 1999 amendment requiring weekly in-person reporting makes Washington’s statute perhaps the most burdensome in the country. The Supreme Court upheld an Alaska registration statute against an ex post facto challenge in part because it did not require in-person updates. Smith v. Doe, 538 U.S. 84, 101, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). Washington’s statute now goes well beyond requirements that other jurisdictions have held unconstitutional in ex post facto challenges. See John Does #1-5 v. Snyder, 834 F.3d 696, 703 (6th Cir. 2016) (quarterly or annual in-person registration now required by Michigan is an affirmative disability converting the statute from regulatory to punitive), cert. denied, 138 S. Ct. 55 (2017); State v. Letalien, 2009 ME 130, 985 A.2d 4, 18 (quarterly in-person registration for life is an affirmative disability); Doe v. State, 167 N.H. 382, 392, 404-05, 111 A.3d 1077 (2015) (revisiting the statute in light of changes making it punitive, including requirement for quarterly in-person registration); Starkey v. Okla. Dep’t of Corr., 2013 OK 43, 305 P.3d 1004, 1022-25 (in-person registration required at pain of criminal punishment is affirmative disability); Commonwealth v. Muniz, 164 A.3d 1189, 1210-11 (Pa. 2017) (monthly in-person registration requirement is an affirmative disability), petition for cert. filed, No. 17-575 (U.S. Oct. 13, 2017).
Imprisonment is the paradigmatic affirmative disability or restraint. Smith, 538 U.S. at 99-100. As Boyd’s case illustrates, Washington’s weekly reporting requirement can readily lead to an unending cycle of imprisonment for transient offenders, particularly those who are dealing with mental health issues. Though Boyd’s only crime of sexual misconduct was committed when he was 23, he has been imprisoned four times since then for failing to comply with the amended registration requirements. If his history is any indication, he will continue to be imprisoned as punishment for the crime of failure to register—further extending his reporting term.
The statute in effect when Boyd committed a sex offense merely required him to register. The requirement to register, by itself, is not historically regarded as punishment. Ward, 123 Wn.2d at 496. But when a homeless offender has to travel in person to the sheriff’s office every Monday morning to report all overnight locations during the past week, the duty resembles a requirement to meet periodically with a probation or parole officer, a sanction historically regarded as punishment. See Muniz, 164 A.3d at 1211-13. And the failure to report in person can lead to incarceration, just as failure to comply with a probation requirement can lead to revocation and imprisonment. The Alaska statute considered in Smith was held not to be punitive in part because it did not contain mandatory conditions comparable to probation. Smith, 538 U.S. at 101. The Snyder court stated that while Michigan’s offender registration law “is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, and has a number of similarities to parole/probation.” Snyder, 834 F.3d at 703. In Letalien, a new requirement that offenders register for life was seen by the court as consistent with sanctions historically considered punishment. The court held that it was an ex post facto violation when applied to offenders whose registration obligation had been 5 to 15 years under the statute in effect when they were convicted. Letalien, 985 A.2d at 19-21.
Another consideration in the ex post facto analysis is whether the transient registration requirements are excessive in relationship to their nonpunitive purposes. Aside from failing to register, Boyd has not been charged with a sex offense in 19 years. Yet once he is released from prison, he must appear in Mount Vernon every Monday between 8:30 a.m. and noon, 52 weeks a year, for a minimum of 10 more years, no matter how far away it may be or how hard it is to get there.4Link to the text of the note RCW 9A.44.140. Assuming at least a 10-year duration, that is a minimum of 520 visits to the sheriff’s office. Failure to appear at any one of these check-ins will expose Boyd to prosecution for a class B felony, and a conviction will begin the cycle anew.
The inability of offenders to petition for relief is another factor indicating that sex offender registry requirements are excessive in relation to any nonpunitive purpose. Doe, 167 N.H. at 410. Similarly, a system that fails to consider the threat posed by an offender is evidence of excessiveness. Starkey, 305 P.3d at 1029-30. To avoid criminal prosecution, homeless registrants in Washington must continue reporting week after week for at least 10 or 15 years, no matter what evidence they may be able to offer of rehabilitation or incapacitation.
The punitive excess of the reporting requirements our State imposes on homeless persons is particularly glaring when compared to the relatively minor burden imposed on offenders who register from a fixed residence. Those individuals need only notify the sheriff by mail within three days of a change in registration information. RCW 9A.44.130(5). There is no requirement to report in person. In my judgment, the weekly reporting burden imposed on homeless individuals outweighs the nonpunitive purpose of letting the sheriff know, for example, that on the previous Tuesday the individual in question stayed overnight behind the bakery in Concrete.
Our statute has grown steadily harsher, especially as applied to homeless offenders. I believe it is time to reconsider the ex post facto analysis of the statute in light of the changes since Ward. I would join the jurisdictions holding that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. I would reverse Boyd’s conviction and remand for dismissal with prejudice.
As should appear obvious to most readers, Mr. Boyd and certainly other homeless registered sex offenders face a consequence greatly exceeding those of most sex offenders. In essence Mr. Boyd represents a revolving door of homelessness and incarceration. Incarceration resulting solely in violating administrative rules. Though the appeals court majority argues the sex offender registration violation is not punitive in nature with regard to Mr. Boyd’s conviction. I find it hard to accept that this in fact does not represent a result that is directly alike to the effects of punishment.
I do not recommend this often, in fact I have only done so professionally twice, but the only hope that Jayson Boyd has to end this decades long trap is a full pardon by Washington’s Governor Jay Inslee of his original conviction and those subsequently for his failures to register.
The legislature needs to also reassess its priorities for low risk sex offenders.
By Darren Smith
Source: State v. Boyd
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