A recent 9th Circuit Court of Appeals decision illustrates one of many Kafkaesque aspects of our justice system. In Clark v. Ryan, Case No. 15-15531 decided September 2, 2016, a three judge panel affirmed the state court conviction and 3-½ year prison sentence imposed for failing to comply with a sex offender registration statute enacted after the petitioner was convicted of the underlying crime.
In 1982 Davie Clark, who was then 18 years old, pled guilty to sexual misconduct with a 14-year-old girl in Arizona and was sentenced to four years of probation. There was no Arizona law requiring sex offenders to register when Mr. Clark was sentenced in 1982. In 1983 Arizona enacted its sex offender registration statute which required Mr. Clark to register as a sex offender because of his conviction for sexual misconduct.
In 2009, 23 years after completing his probation, Mr. Clark was arrested and subsequently sentenced to 3-½ years in prison for failing to register as a sex offender. There is no indication in the 9th Circuit opinion that Mr. Clark was ever told he needed to register as a sex offender prior to his arrest and conviction. In short, Mr. Clark apparently enjoyed a quarter century of uneventful freedom from the criminal justice system until that system reached out and imprisoned him for what he hadn’t done about a crime and sentence of probation he’d completed long ago.
The 9th Circuit upheld Clark’s conviction and sentence after first acknowledging the Ex Post Facto Clause of the U.S. Constitution, Article I §9(3) does “forbid the application of any new punitive measure to a crime already consummated.” The lower courts and the 9th Circuit all agreed that the Ex Post Facto Clause could not help Mr. Clark because, they said, the sex registration law was not “punitive” even though it was punitively enforced with a 3-½ year prison term in his case. Sadly, the 9th Circuit did not even seem to find perverse pleasure at the absurdity of its own reasoning, ipso dixit, when it wrote that:
From the facts that Arizona’s sex offender registration scheme was enacted within the criminal code and that noncompliance with the registration requirements can result in punishment, it does not necessarily follow that the legislature’s intent was punitive.” (emphasis added)
Of course, there’s a big difference between a conclusion that does not necessarily follow and an opposed conclusion that contradicts the obvious. Actually, when anyone says that a particular conclusion does not necessarily follow any given state of facts, they are implicitly acknowledging that the conclusion they’re trying to avoid is probably the conclusion that generally makes the most sense.
Ultimately, this case is just another illustration of how detached from notions of logic and justice our legal system often is. More specifically, it is a reminder that the courts are often complicit in the illogic and injustice of that system.