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Sex Offender Registration - Retroactivity



One of the most unfortunate aspects of the sex offender registration laws is the retroactive application of new laws that did not exist at the time of a person’s guilty verdict or plea bargain. A huge number of potential clients who contact this practice have experienced the retroactive application of new and harsh sex offender registration laws without any warning and without any meaningful opportunity to mount a defense.

A retroactive law applies to a person even though the law was enacted or changed after the person was convicted or plead guilty. Usually, the United States Constitution and the New York State Constitution prohibit retroactive laws and laws that deny due process. Of course, when it comes to sex offenses, the courts seem to find loopholes. Currently, many state and federal courts consider the sex offender registry a “regulatory” measure, which means that none of the normal constitutional protections apply.

Thus, many people plead guilty to low-level sex offenses upon the advice of an unknowledgeable attorney under the belief that they would spend a limited amount of time on the sex offender registry. Years later, many of these people were shocked to find out the truth.

In New York, a person convicted of a sex offense prior to the enactment of the Sex Offender Registration Act in 1996 may be placed on the sex offender registry. A person who pled guilty to a sex offense after 1996 might have the amount of time spent on the sex offender registry increased from 10 years to 20 years or to life! This may sound completely unfair, illogical, or outrageous, but right now this is the law.

Likewise, the provisions of SORNA may be applied retroactively! A person who took a bad plea bargain can be haunted by the record of the sex offense at the state and federal level for the rest of his life.

The harsh consequences of a bad plea bargain demonstrate the pitfalls with having a second-rate attorney. If an attorney has minimal knowledge or experience with the always-changing sex offender laws, the client faces the enormous risk of spending the rest of his life on the sex offender registry. Many defendants regret their choice of past attorneys, who advised them to take a bad plea bargain.

Obviously, it is best to hire an effective attorney from the beginning, i.e. at the trial stage, because a guilty plea cannot be undone in most circumstances. However, if a person finds himself in a situation where longer and harsher SORA restrictions apply retroactively, an experienced SORA attorney should review the case and plan a careful strategy. The law only provides limited options for amending a person’s SORA Level or SORA registration. Therefore, the strategy for removing a person from the public sex offender registry must be carefully planned.

If a person has an out-of-state sex offense, the person may be entitled to challenge their sex offender registration in an Article 78 proceeding, which can result in complete removal from the sex offender registry. Otherwise, people registered as a Level 2 or Level 3 can petition for a downward modification of their risk assessment level. In most circumstances, the goal is the reduction of a person’s risk level to Level 1. Eventually, the person may petition for total removal.
Attorney Advertising: All content sponsored by The Law Office of Adam Bevelacqua, LLC. Although informational, this website may be considered attorney advertising. Every case has unique circumstances, and a person should consult a criminal attorney before taking any legal action.