Shaw v. Patton
Decision Date | 18 May 2016 |
Docket Number | No. 15–6106.,15–6106. |
Citation | 823 F.3d 556 |
Parties | Juston SHAW, Plaintiff–Appellant v. Robert PATTON, in his official capacity as Director of the Oklahoma Department of Corrections, Defendant–Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Brady R. Henderson (Ryan Kiesel, with him on the briefs), American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, OK, for Plaintiff–Appellant.
Justin P. Grose, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, OK, for Defendant–Appellee.
Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
Okla. Stat. tit. 57, §§ 583(C)(3), 584, 590 (Supp. 2009) ; Okla. Stat. tit. 21, § 1125(A) (Supp. 2014).
In Mr. Shaw's view, these obligations constitute retroactive punishment in violation of the U.S. Constitution's Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1.2 Thus, Mr. Shaw sued the Director of the Oklahoma Department of Corrections, who is responsible for enforcing the sex-offender regulations.3 After a bench trial, the district court entered judgment against Mr. Shaw, holding that the statute's retroactive application did not amount to punishment.
On appeal, we ask: Do Mr. Shaw's restrictions on reporting, residency, and loitering constitute retroactive punishment in violation of the Ex Post Facto Clause? We conclude that these restrictions do not constitute punishment. Thus, enforcement of these restrictions does not violate the U.S. Constitution.4
The defendant denies that the Oklahoma statute was enforced retroactively, arguing that the statute was inapplicable to Mr. Shaw until he entered Oklahoma. In our view, however, the statute was enforced retroactively.5
It is true that Mr. Shaw was not subject to the Oklahoma statute until he moved to Oklahoma, but the date of his move does not affect whether the statute is being enforced retroactively. A statute is enforced retroactively if it governs conduct that preceded the statute's enactment. Stogner v. California, 539 U.S. 607, 612–13, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). That is the case here: Mr. Shaw is subject to statutes enacted in 2009 and 2014 for conduct that took place in 1998.
In 1998, when Mr. Shaw was convicted, Oklahoma did not have any residency or loitering restrictions for sex offenders. Oklahoma did require reporting for sex offenders in 1998, but that requirement would already have expired for Mr. Shaw. See Act of May 27, 1997, ch. 260 § 4, 1997 Okla. Sess. Laws 1423–24 ( ); Act of May 20, 2003, ch. 223, 2003 Okla. Sess. Laws 948–49 (codified as amended at Okla. Stat. tit. 57, § 590 (Supp. 2003)6 (enacting residency restrictions)). Thus, Mr. Shaw is subject to restrictions on reporting, residency, and loitering only because Oklahoma changed its laws years after Mr. Shaw's criminal conduct. By definition, these restrictions are being retroactively applied to Mr. Shaw. The resulting issue is whether these restrictions constitute punishment.
Mr. Shaw challenges the application of Oklahoma's sex-offender requirements to his circumstances. Thus, we consider only the provisions that affect Mr. Shaw. See Reno v. Flores, 507 U.S. 292, 300, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ( ). Thus, we must determine which of the challenged provisions were applied to Mr. Shaw's circumstances.
Mr. Shaw challenges six statutory provisions applicable to sex offenders. Three of the provisions (reporting, residency, and loitering) affect him. But the other three provisions do not:
First, Mr. Shaw did not present evidence of a restriction on his employment opportunities, for he has not tried to work with children, work at a school, or work for a company that conducts business on school grounds.7
Second, Mr. Shaw did not present evidence that the statute has actually prevented him from living with another convicted sex offender. Mr. Shaw lives with his common-law wife, and he has not presented any information suggesting that his common-law wife is a convicted sex offender.
Because Mr. Shaw's circumstances do not trigger these restrictions, we need not decide whether they constitute punishment.
Mr. Shaw challenges the reporting and residency restrictions based on the U.S. Constitution's Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. Because Mr. Shaw does not allege a punitive intent, we consider only whether the statutory restrictions have a punitive effect. This inquiry is guided by five factors; because each factor weighs against a finding of punitive effect, we conclude that application of the reporting and residency restrictions does not constitute punishment under the Ex Post Facto Clause.
To determine whether Oklahoma's sex-offender regulations served to punish Mr. Shaw, we apply the intent-effects test discussed in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Though the district court applied this test, we engage in de novo review. Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir.2008).
In engaging in de novo review, we begin with the legislature's stated intent. If the legislature intended to impose punishment, our inquiry ends. Smith, 538 U.S. at 92, 123 S.Ct. 1140. But if the legislature expressed an intent to enact a regulatory scheme that is civil or non-punitive, Mr. Shaw must provide the “clearest proof” of a punitive effect. Id.
We ordinarily start with the legislature's stated intent. But Mr. Shaw has not argued that the Oklahoma legislature's stated intent is punitive. See Appellant's Opening Br. at 20 (). Thus, we express no view on the Oklahoma legislature's intent in enacting the sex-offender requirements.
Instead, we consider whether Mr. Shaw has provided the clearest proof of a punitive effect. For this inquiry, the Supreme Court considered five factors in Smith v. Doe:
Smith, 538 U.S. at 97, 123 S.Ct. 1140 (citing Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) ).9 In our view, Mr. Shaw does not present the “clearest proof” of a punitive effect from the reporting and residency restrictions.
The Oklahoma Supreme Court considered a similar ex post facto challenge in Starkey v. Oklahoma Department of Corrections, 305 P.3d 1004 (Okla.2013). There, a sex offender challenged other statutory provisions, arguing that they violated the Oklahoma Constitution's Ex Post Facto Clause. Starkey, 305 P.3d at 1031. In addressing this challenge, the Oklahoma Supreme Court used the five Smith factors as an analytical framework and concluded that certain parts of the statute amounted to retroactive punishment in violation of the state constitution. Id. Mr. Shaw contends that the Oklahoma Supreme Court's analysis under the Oklahoma Constitution controls our analysis under the U.S. Constitution. We disagree.
Though we defer to state courts' construction of state statutes,10 Mr. Shaw's ex post facto challenge does not turn on statutory construction. The parties do not disagree on the meaning of the reporting and residency restrictions; they disagree only on whether these restrictions are punitive. On this question, we do not defer...
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