Out of State Claimant Has Standing, but no Ex Post Facto Claim for "Sexual Predator" Designation

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled that a Wisconsin claimant who was convicted of rape, sexual assault, and kidnapping in 1983 in Illinois had standing to challenge his designation under a 2011 Illinois law as a "sexual predator," but that the restrictions that went with his new designation didn't violate the Ex Post Facto Clause.

The case arose when Illinois amended its Sex Offender Registration Act to define "sexual predator" as a person who had been convicted of any felony offense after July 1, 2011, and had been required to register as a sex offender under a conviction that required registration for more than ten years. Under the amendment, sexual predators had increased reporting requirements and certain new restrictions. Anthony Johnson fell into the new classification, because he was convicted of rape in 1983 (and was required to register for ten years) and of felony theft in 2013. Johnson was therefore subject to the reporting requirements and restrictions.

When Johnson moved to Wisconsin, he discovered that he had to meet certain heightened registration requirements there, too--but only because he was designated a "sexual predator" in Illinois. In other words, Wisconsin piggy-backed on Illinois's sexual predator requirements for someone like Johnson. Without his designation as a sexual predator in Illinois, Johnson wouldn't have to meet these requirements in Wisconsin.

Johnson sued Illinois officials, arguing that the 2011 amendments violated the Ex Post Facto Clause. The defendants moved to dismiss for lack of standing.

The Seventh Circuit ruled that Johnson had standing, but that the new requirements didn't violate the Ex Post Facto Clause.

As to standing, the court said that Johnson only had reporting requirements in Wisconsin because of his designation under Illinois law (and that he therefore demonstrated causation), and that if he won his case against Illinois officials, he'd no longer have to meet Wisconsin's requirements (and that he therefore demonstrated redressability).

As to the Ex Post Facto Clause, the court said that the new requirements under Illinois law were a function of his 2013 felony theft conviction, not his 1983 rape conviction: "Had Mr. Johnson not committed a felony after the Act went into effect, he wouldn't be classified as a sexual predator today. But he committed that later felony, and that conviction produced the sexual predator classification of which he complains."

Or, as Justice Jackson wrote in a similar enhanced-penalty case, nearly 70 years ago, Gryger v. Burke (and quoted by the Seventh Circuit):

The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.