Jordan v. Lee, Case No. 3:19-cv-00907
| Decision Date | 12 August 2020 |
| Docket Number | Case No. 3:19-cv-00907 |
| Parties | CARL E. JORDAN, Plaintiff, v. WILLIAM LEE, Governor of the State of Tennessee; DAVID RAUSCH, Director of the Tennessee Bureau of Investigation; and METROPOLITANGOVERNMENT OF NASHVILLE-DAVIDSON COUNTY, TENNESSEE, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Carl E. Jordan has filed a Motion for Preliminary Injunction (Docket No. 25), to which Governor William Lee and Tennessee Bureau of Investigation ("TBI") Director David Rausch, collectively, and the Metropolitan Government of Nashville and Davidson County ("Metro") have filed Responses (Docket Nos. 29 & 33). Metro has filed a Motion to Dismiss (Docket No. 27), to which Jordan has filed a Response (Docket No. 34), and Metro has filed a Reply (Docket No. 35). The Governor and Director have filed a Motion to Dismiss (Docket No. 30), which Jordan also addresses in the aforementioned Response (Docket No. 34), and the Governor and Director have filed a Reply (Docket No. 36). For the reasons set out herein, Metro's motion will be denied, the motion filed by the Governor and Director will be granted in part and denied in part, and Jordan's motion will be granted.
The Constitution presupposes that the government may punish people for actions that have been deemed criminal. However, the government's authority to impose criminal punishment is subject to certain special constraints that may not apply to the government's other powers. One such constraint is the Constitution's ban on the adoption of "ex post facto Laws," set out in its Ex Post Facto Clauses, one of which applies to the federal government and one to the states. U.S. Const., art I, §§ 9, cl.3, 10, cl. 1.1
"Ex post facto law" is "a term of art" that, consistently with its "established meaning at the time of the framing," has been construed to refer to criminal, but not civil, laws that are retroactive in effect. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). But see Collins, 497 U.S. at 41 (). In its most straightforward formulation, the Ex Post Facto Clause dictates that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins, 497 U.S. at 43. "Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981) (citing Dobbert v. Florida, 432 U.S. 282, 298 (1977); Kring v. Missouri, 107 U.S. 221, 229 (1883); Calder v. Bull, 3 U.S. 386, 387 (1798)).
The Ex Post Facto Clause, on its face, contains no exceptions and makes no reference to the severity of either the crime committed or the punishment at issue. That is because the coreinterest protected by the Clause "is not an individual's right to less punishment," but rather the "lack of fair notice" given by the government. Weaver, 450 U.S. at 30. Accordingly, even an eminently reasonable punishment can violate the Ex Post Facto Clause if it was not authorized at the time that the underlying wrongful act was committed, and even a manifestly unjust and disproportionate punishment will find no obstacle from the Clause, as long as that punishment was authorized ahead of time. The Ex Post Facto Clause is concerned with timing and notice, not reasonableness in a larger sense.
While the core prohibition of the Ex Post Facto Clause is straightforward, courts have long struggled with its outer boundaries. For example, it is accepted as axiomatic that the Clause "forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington, 301 U.S. 397, 401 (1937) (citing Kring, 107 U.S. at 228-29; Thompson v. Utah, 170 U.S. 343, 351 (1898); In re Medley, 134 U.S. 160, 171 (1890)). Accordingly, a state could not retroactively turn a crime with a ten-year minimum sentence into one with a twenty-year minimum sentence. The actual practice of criminal punishment, however, involves more than merely imposing a sentence dictated by statute. The punishment that a convicted defendant will actually receive involves an array of judicial and administrative determinations, including the selection of a sentence from a range of possible options, the calculation of actual days to serve, the availability of "good time" or other post-conviction reductions in time to serve, and, of course, the availability of parole and the procedures that govern parole determinations. Faced with changes in these secondary determinants of a defendant's punishment, the Supreme Court's "cases 'have not attempted to precisely delimit the scope of"" the term "ex post facto law," "but have instead given it substance by an accretion of case law." Peugh v. United States, 569 U.S. 530, 538-39 (2013)(quoting Dobbert, 432 U.S. at 292); see, e.g., id. at 544 (); Lynce v. Mathis, 519 U.S. 433, 446 (1997) (); Morales, 514 U.S. at 514 (); Weaver, 450 U.S. at 36 ().
Prior to 1994, individuals in Tennessee convicted of sexual offenses faced formal consequences that were mostly similar to those borne by individuals convicted of similarly serious non-sexual offenses. There may have been unique collateral consequences for sexual offenses in some areas—such as in family law proceedings—and defendants convicted of sexual crimes may have suffered especially severe extralegal reputational harms in their communities. For the most part, however, the path of a person convicted of a sexual offense was a familiar one: he2 would be convicted and serve punishment, often in the form of incarceration, after which he might be paroled or, if not paroled, released when his sentence was completed. Then, if there were no other sentences or charges awaiting him related to other crimes, he would attempt to reintegrate into society.
In 1994, however, the Tennessee General Assembly, concerned with the potential actions of sexual offenders after they had served their sentences, adopted legislation requiring the TBI to "establish, maintain, and update a centralized record system of sexual offender registration and verification information." 1994 Tenn. Pub. Laws, ch. 976 § 7(a). The law required registrationfor all individuals convicted of any one of a number of identified sexual offenses, "unless the offender had been wholly released without supervision from incarceration, probation, or parole prior to January 1, 1995." Doe v. Haslam, No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, C.J.) (citing 1994 Tenn. Pub. Laws, ch. 976 § 3(2)-(3)). Accordingly, there existed a subset of defendants who were required to register based on crimes they committed before the registry was in place: namely, (1) convicted defendants who were still in the process of incarceration, parole, or supervision for a crime committed prior to 1995; and (2) individuals charged with committing crimes prior to 1995 but who had not yet been convicted.
The initial registration system was relatively undemanding and mostly concerned with ensuring the accuracy of registry information. A person convicted of a covered offense was required to register with the TBI by paper form within ten days of release without supervision from probation, parole, or incarceration. 1994 Tenn. Pub. Laws, ch. 976 § 4. The TBI would then send the registrant a fresh verification form every ninety days, which the registrant was required to return within ten days of receipt. Id. § 5. The registrant also had an ongoing duty to complete a new form within ten days of any change of residence. Id. § 4. The information in the registry was generally considered confidential, but the TBI or a local law enforcement agency could "release relevant information deemed necessary to protect the public concerning a specific sexual offender." Id. § 7(c). After ten years, a registrant could petition a court to order his removal from the registry, which the court would grant if it found the registrant had complied with the Act, was rehabilitated, and did not pose a threat to public safety. Id. § 8. There were no restrictions on where a registrant could live, work, or travel. Doe, 2017 WL 5187117 at *2.
In the ensuing decades, however, the Tennessee General Assembly repeatedly returned to the sexual offender registration statutes to change whom they reached, what they required, and how much protection they offered to registered offenders' privacy. Chief Judge Crenshaw of this district has recounted the statutes' long history of more than two dozen revisions in Doe v. Haslam, No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D. Tenn. Nov. 9, 2017), and this court will refer to that opinion for the details. In short, Tennessee's sexual offender registration system progressed from a relatively simple system, dedicated to information gathering and tracking, into a far-reaching structure for regulating the conduct and lifestyles of registered sexual offenders after their punishments were complete and, in many cases, for the rest of their lives. The court will briefly summarize some of the key provisions in their current form.
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