NC wins case maintaining state sex offender laws
The case was brought by a national group called NARSOL and its state affiliate
North Carolina Attorney General Josh Stein recently announced the state had won a case involving a challenge to the state’s sex offender laws, in particular, certain reporting requirements by sex offenders to law enforcement.
“I’m pleased that the court has upheld the constitutionality of this law, which protects children and families from people convicted of serious sexual offenses,” said Stein in a press release. “The law was written to keep North Carolinians safe, and I’m proud of the hard work my office put in to defend it.”
Stein’s release is about the Fourth Circuit upholding a lower court's decision that North Carolina's sex offender registry law as constitutional under the Ex Post Facto Clause, finding it to be a nonpunitive civil regulatory scheme rather than criminal punishment.
Ex Post Facto, in Latin means "from a thing done afterward." Legally, it means a law that retroactively changes penalties of a past act, and such laws are mainly unconstitutional under Article I, Section 9, and Article 1, Section 10 of the U.S. Constitution.
This case challenged NC's sex offender registry law under Article 1, Section 1, Clause 1, which states, "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
While acknowledging the law imposes significant restrictions on registrants, the court found the restrictions imposed in NC's law do not rise to the level of historical punishments like banishment. The court assumed the law imposes an "affirmative disability or restraint" and promotes some traditional aims of punishment, but found these factors were outweighed by others favoring the state.
Ultimately, the court ruled the plaintiffs failed to meet the high bar of showing the law is so punitive in effect as to negate the legislature's non-punitive intent, and thus retroactive application does not violate the Ex Post Facto Clause.
There is discussion in the ruling of the effects of the law under the framework from Smith v. Doe, and the court concluded that the plaintiffs failed to show by the "clearest proof" that the effects were so punitive as to negate the non-punitive intent.
The court also found the law has a rational connection to the non-punitive purpose of public safety and is not excessive in relation to that purpose.
More To The Story
The lawsuit was brought by two nonprofit groups; National Association for Rational Sex Offense Laws (“NARSOL”) and North Carolinians for Rational Sex Offense Laws (“NC RSOL”).
NCRSOL is an affiliate of NARSOL.
NARSOL has filed similar lawsuits across the country, and in the NC case, the lawsuit was an overall facial challenge to Article 27A, Sex Offender and Public Protection Registration Programs, in the state's constitution.
In the North Carolina case, the plaintiffs sought to bar the retroactive application of several amendments to the original statute that imposed additional restrictions or requirements on registered sex offenders. An example might be altering the distance of how close a registrant can live to a school.
NARSOL, and its legal foundation Vivante Espero, was founded by a former offender, Robin Vander Wall. On the NARSOL website, Vander Wall has an illuminating blog post that dates back to 2019 that’s worth a read.
According to NARSOL’s website, the group “envisions a society free from public shaming, dehumanizing registries, discrimination, and unconstitutional laws."
NARSOL also “opposes dehumanizing registries by working to eliminate the laws, policies, and practices that propagate them."
It's since been removed from the "Facts for journalists" portion of the NARSOL website, but there was at one time an "Open letter to local reporters." That open letter is captured on the WayBack Machine. It's basically a plea to go easy on sex offender stories, complete with suggested watered down language.
Like NARSOL, NCRSOL “envisions effective, fact-based sexual offense laws that safeguard public safety, civil liberties, and human dignity.”
NARSOL is a 501(c)(4) and its EIN 47-3285181. NCRSOL has the same tax designation under EIN 81-1715766.
NARSOL's previously mentioned legal foundation, Vivante Espero, is designated as a 501(c)(3) under EIN 47-3285181. The most recent tax filing for Vivante Espero (2022), shows gross receipts of $430,533.
Vivante Espero seeks to "restore liberty to former offenders,” and it “manages opportunities to educate and inform the general public about laws and policies that dehumanize individuals previously convicted of a sexually-based offense.”
The sex offender registry has been a target of NARSOL and its affiliates.
The North Carolina State Bureau of Investigations maintains the state’s sex offender registry and the public can search it here.
