Ex Post Facto?

ex post facto law (from the Latin for "from after the action" or "after the fact")
A law which changes the status or punishment for an action after the action has been committed. 

United States Constitution
Article I, Section 9
"No Bill of Attainder or ex post facto Law shall be passed."

The founding fathers of the United States took two steps forward in terms of ensuring the protection of individual rights and liberties in writing the Constitution.  In recent decades, however, lawmakers on federal and local levels seem to be content with taking one step back by passing legislation which teeters on the brink of unconstitutionality.  Furthermore, both the United States Supreme Court, and state Supreme Courts are upholding these "borderline" constitutional infractions. 

Civil Commitment of Sex Offenders
 A fairly recent example of a questionable ex post facto law being upheld can be found in the US Supreme Court's decision in United States v. Comstock, where the Court found that Congress was within its power under the Commerce Clause in passing legislation allowing the civil commitment of mentally ill sex offenders, after they served their criminal sentence.  What surprises me is the fact that the Supreme Court did not want to touch the issue dealing with the possibility that a civil commitment was retroactive punishment, which would make it an ex post facto law.  Instead, the argument was limited to the scope of whether or not the Commerce Clause allowed for Congress to enact a section of the Adam Walsh Child Protection and Safety Act of 2006.

It is my opinion that this "civil" commitment is punitive in nature, in the sense that it restricts the movement and freedom of offenders who have already served a criminal sentence, by detaining them once again.  Its intent is to remove dangerous sex offenders from society by means of a "civil" sentence, which mirrors the intent of the criminal sentence they just finished serving.  They are, for all intents and purposes, being punished twice for the same offense.

Arizona Sex Offender Registration
A similar issue was heard not once, but twice, by the Arizona Supreme Court.  The opinions in State v. Noble and State v. McCuin answer (sort of) the question of whether or not an Arizona law forcing ALL sex offenders (whether convicted previously or in the future) was imposing punishment on previously convicted sex offenders after their time had been served.  Noble developed a reasonable three-pronged test which questioned: 1.) the retroactivity of the law on defendants, 2.) how burdensome the law is on the defendant, and 3.) whether this law carried a criminal penalty.
(Source:  Tempe Criminal Defense Blog)

The author of Tempe Criminal Defense notes that this law is punitive for the same reasons why others and I find Comstock to be punitive, in that it restricts movement.  While Noble decided that the law was both retroactive and punitive, McCuin upheld the Arizona law based upon the belief that the law was intended to "regulate" and not to "punish." 

I would argue that while "regulation" of sex offenders is necessary, the law's attempt at regulation is inherently punitive.  Sex offenders movements are restricted, with particular regard to where they are allowed to live.  They are not permitted to live within 1,000 feet of any school or day-care facility, or any location where it is likely children will be present.  Further, sex offenders are often not permitted contact with children.  Though this certainly regulates sex offenders, the restriction on movement makes it borderline punitive.  It is part of a sex offender's punishment that they cannot live within 1,000 feet of certain institutions, and it is part of their punishment that they cannot associate with minors.  The fact that these same provisions are imposed as retroactive regulations through this law do not detract from the fact that they are forms of punishment. 

Final Thoughts...
From a purely constitutional law standpoint, I believe these laws to be unconstitutional.  I find it difficult to believe that these laws would have been upheld by judiciaries if they dealt with trivial issues.  However the subject matter is difficult to ignore, and certainly not something to be taken lightly:  the fact that their common goal is to regulate sex offenders.

Please feel free to leave any thoughts or comments below.