RELIEF FROM THE SEX OFFENSE REGISTRY: FACT AND FICTION

Derek W. Logue of OnceFallen.com
Published 6 July 2021

ABSTRACT

Nobody wants to be listed on the public sex offense registry, and for good reason, so rumors abound about ways to avoid the registry. There is not a single state or territory where registration does not exist. There are also not many pathways to being removed from the registry. Generally, removal from the registry occurs in a number of ways, and none are immediate solutions, including pardons, court petitions, reaching an end of registration date (if you’re a lower tiered registrant), or emigration. This article was created to separate fact from fiction in seeking legal pathways off the sex offense registry.

This page is a work-in-progress and will be updated regularly as new information is made available.

INTRODUCTION

The prospect of being on the public pillory that is the SOR is scary, so you’re probably hoping for some kind of relief from the registry. Scammers and hucksters are also hoping you are desperate to get off the registry, so they are willing to hock guides on “how to legally avoid the registry” or provide some kind of service to assist you in trying to get your name off the registry—for a price. Specifically, a guide entitled “How to Legally Avoid Being Placed on the Sex Offender Registry,” originally published by the Safe Streets Arts Foundation around 2015, has misled some people into thinking there are easy workarounds to registration requirements. In reality, there is not an easy pathway to legitimate registry removal, and even removal from the registry may not solve all your problems.

In Appendix 2 of my book, “Your Life on The List” (see front page for details on obtaining a copy), I cover laws pertaining to possible relief from having to register. States and territories vary greatly on potential relief from the registry. Some Registered Persons will have more definitive paths to obtaining relief from the registry than others. Relief may come via pardon or by a court procedure. Some may reach an end of registration date and be removed from the registry automatically, while some states require a petition after a certain time has passed.

If you petition for petitioning for registry removal, court investigators will delve into your entire criminal history (not just sex offenses) so maintaining a clean record after your release is imperative. Having a respected member of the community going to bat for you (such as a minister, politician, or even a LEO) increases your chances. Still, expect your chances of obtaining a pardon to be extremely slim.

While lawyers are not necessary for pardon hearings, Registrants who are eligible for relief from the registry should hire a well-known, well versed on sex offense law or civil rights attorney to petition to get off the Registry. You may have to “Google” “sex offender attorney” and your state to find a specialist. You may also want to read reviews. With attorneys, you truly get what you pay for, and many attorneys are unwilling to take cases pro bono.

Pardons and relief from the registry obligations does NOT remove the conviction from your criminal record. The sex offense conviction may still show up on your criminal record. Most states do not offer expungement of records, and erven if they do, your record may still show up under a few circumstances, like background checks for day care centers.

Currently, the Collateral Consequences Resource Center website is the best place to find info on registry relief by state; the direct link to the spreadsheet is at — https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/

Some information was extrapolated from A-two-Zee’s “Summary of State & Territorial Registration Laws for Visiting FORMER & LONG TERM (11+ years) Registrants – 2021”. Link to the chart can be found at:

https://oncefallen.com/wp-content/uploads/2021/06/a-two-zee-visitors-after-10-yrs-chart.pdf

STATE PARDONS

For those who are hoping to “state shop” to find a state open to pardoning or offering an avenue of restoration of rights, few states extend the right of receiving pardons to those convicted in the federal or another state’s court. Leaning heavily on data provided by the Collateral Consequences Resource Center (CCRC), only AL, AR, & TX explicitly offer pardons to convictions from outside jurisdictions; ME, MA, NY, RI, VI, VT, WV, & WY do not explicitly exclude federal and other state convictions by state law or in the pardon application. Additionally, FL, GA, IA, KY, NM, WA, & WY offer some various degrees of “Restoration of Rights” (ROR, sometimes referred to as a “partial pardon”) to those convicted even from other jurisdictions, which may restore specific rights like voting or firearms ownership.

ME specifically states, “Petitioners seeking a pardon for the sole purpose of having the Petitioner’s name removed from the state’s SO Registry will not be heard.” (ME does not explicitly state out-of-state or federal convictions are ineligible & does not state it on the pardon application.) Based on the pardon applications, TX & VT apparently only grant pardons for convictions from other jurisdictions as a last resort, specifically if necessary for the applicant to achieve the pardon in three jurisdiction of conviction.

Out of the 50 states, only AL, CT, GA, ID, SC, & UT relies solely on a parole board; the governor is the final authority in the remaining states, although most are assisted by a review board. Only DC, ME, OR, & WI (in addition to the federal system) lacks a statutory advisory board for the pardon process. . According to the CCRC, the states that offer the most frequent pardons in general (30%+ of those who apply are AL, AR, CA, CT, DE, GA, DE, GA, ID, IL, LA, NE, NV, OK, PA, SC, SD, UT, & VA. States where pardons have been rare or non-existent in the past 20 years include AK, AZ, DC, KS, MA, MI, MS, MT, NH, NJ, NC, ND, OR, RI, VT, & WV.

This does not necessarily mean moving to a state that may provide a pardon to an out-of-state or federal RC is the best path to registry relief. In fact, the one state that offers pardons to those convicted on another jurisdiction, has an independent pardon board, AND is noted as frequently offering pardons was my pick for the worst state in the nation for a Registrant to reside—Alabama! And while pardons in AL are common for many offenses (according to the CCRC, over 800 pardons a year are granted), the AL Dept of Pardons and Parole claimed a few years ago that only 2% of people convicted of sex offenses are pardoned. (Despite claims they cannot restore voting rights to RCs, I received a restoration of voting rights back in 2007 so that claim was inaccurate.) But a pardon for a federal case in AL is only good for AL.

Your mileage may vary. Based on what I’ve written here, it seems that a pardon board is superior to schemes where the Governor has more power to decide fates. Governors are elected; pardon board members are not.

FEDERAL PARDONS

If you’re hoping for a Presidential Pardon to have your rights restored, these pardons are extremely rare across the board. The President cannot pardon to state-level crimes, only federal crimes (and crimes committed in DC). Each state has their own procedures for potential registry relief; some states may even extend these procedures to those convicted in other jurisdictions. Second, those listed as Tier 1 or Tier 3 for federal convictions can petition federal courts for a reduction after 10 years (Tier 1s) or 25 years (Tier 3s); unfortunately, those on Tier 2s get no way to reduce the registration period. In general, you can apply for a Presidential pardon if it has been 5 years after sentence or release from confinement and you’re generally not eligible if on parole (28 CFR § 1.2). This does not expunge the record. There is no formal pardon advisory board.

There are no stats breaking down how many pardon petitions come specifically from people convicted of sexual offenses. At best, I can give you a general idea about the Presidential pardon habits from 1967 to the present, so let’s begin by looking at the stats since Nixon took office in 1969 (full stats are at https://www.justice.gov/pardon/clemency-statistics). I chose Nixon as the starting point because the clemency stats were not divided into pardons and commutations were not separated until 1967, when Lyndon B. Johnson was in office, and thus I cannot get a full idea of Johnson’s pardon habits (though he seemingly processed fewer pardons in his later years in office). On a related note, Nixon was the first elected President to officially declare a “war on crime,” which began the trend of “tough on crime” rhetoric which still plagues the US Justice System.

Nixon (R): 1699 pardon petitions received, 863 granted (50.8%)
Ford (R): 978 pardon petitions received, 382 granted (39.1%)
Carter (D): 1581 pardon petitions received, 534 granted (33.8%)
Reagan (R): 2099 pardon petitions received, 393 granted (18.7%)
Bush, Sr. (R): 731 pardon petitions received, 74 granted (10%)
Clinton (D): 2001 pardon petitions received, 396 granted (19.8%)
Bush., Jr. (R): 2498 pardon petitions received, 189 granted (7.5%)
Obama (D): 3395 pardon petitions received, 212 granted (6.2%)
Trump (R): 1969 pardon petitions received, 144 granted (7.3%)

The pardon trend has been in the decline since the “war on crime” began in the 1960s, and in the 21st century, pardons have remained below 10%. Also, with the exception of Bush, Jr., every president since Bush, Sr., has granted the majority of their petitions in the last year or so in office. With Obama and Trump, that trend was particularly pronounced; Obama granted 142 of his 212 pardons (67%) on his last days in office, while Trump granted 116 of his 144 pardons (80.6%) of his pardons on his last days in office.

Clinton outright denied 655 pardon petitions and refused action on 353 more (or, as it is officially stated, Petitions Closed Without Presidential Action”); Bush Jr outright denied 1742 petitions and refused action on 464 more; Obama outright denied 1708 petitions and refused action on 508 more; Trump outright denied 84 petitions and refused action on 625 more. The number of pending petitions had remained steady but jumped dramatically under the past two administrations; under Obama the number of unprocessed petitions jumped from 864 to 1920 (+1056) under Obama and to 2834 (+914) under Trump. Many recent pardons have been high profile, mainly of white collar and political criminals, or symbolic posthumous pardons of persons of historical significance.

A review of the list of pardon recipients (https://www.justice.gov/pardon/clemency-recipients) shows no one has officially been pardoned for a sexual offense since the national registry laws were enacted in 1994 (the Jacob Wetterling Act, as part of the same controversial 1994 crime bill that became a point of contention in the 20209 presidential election); Alabama judge Roy Moore was verbally “pardoned” by Trump at a Thanksgiving turkey pardon ceremony as he faced allegations of abusing an underage girl decades ago, but is not officially pardoned. Our current President as of this writing, Joe Biden, is a “tough on crime” politician who helped get sex crime legislation passed on the federal level, including the national registry laws and the Adam Walsh Act, and he is proud of that fact. (On a related note, no sentencing commutations have been granted, either).

Unfortunately, prospects for a presidential pardon seem to be non-existent on the federal level. Some states offer a chance at a pardon even if you were convicted in federal or out-of-state courts. Based on some anecdotal evidence, a push to change the federal pardon system to a board may help. For example, in AL, a state at the top of my “worst states for RCs” list, an RC still at least has a 2% (1 in 50) chance of obtaining a pardon from the pardon and parole board. That is still an extremely low number, but 2% is greater than 0%. Another problem in need of reform is our “tough on crime” mentality; in 2010, 1513 of 1554 pardon petitions by RCs in Canada were approved; a 2000 report noted that only 114 of the 4883 (2.8%) Canadians pardon for sex offenses from 1970-1998 reoffended, so granting pardons to RCs have not caused great harm to Canada.

END OF REGISTRATION DATE

Many states have a “tiered” registry and may provide automatic relief to Registrants on the lower tier(s). For example, Ohio, an AWA-compliant state, has a three-tiered system. If you are classified Tier 1 in Ohio, you will automatically reach your “end of registration” date 15 years from your date of release from prison (or date of sentencing if given only probation). However, you cannot assume every state that has a tiered system allows automatic removal from the registry. California and Oregon, for example, recently changed to a 3-tiered system, but a petition to the courts is required after a minimum registration period, so we don’t know if the new scheme will allow more chances to be removed from the registry.

As explained earlier in the book (on travel and moving), most states will try to pigeon-hole you into the equivalent registration tier. If you are a Tier 1 in State A with 15 year registration, and move to state B with a similar registration scheme, then you’ll most likely be a Tier 1 in state B with 15 year registration. Sadly, moving to a new state complicates matters, and more often than not, moving from a state where you are required to register for life will mean you’ll register for life in a new state.

According to a guide from A-Two-Zee, 18 states allow Tier 1 (or equivalent) offenders, including out-of-state, to petition for removal at a specified number of years after release from prison (15 states) or after establishing residency in state (3 states)—AR, CA, CO, GA, ID, MS, MT, NJ, NC, OH, OK, OR, TN, VA, & WY.

Five states (IN, KS, MN, NM, UT) will force you to register longer if either state requires a longer registration period. For example, if you moved from a state A, which required you to register for 15 years, and you move to state B, which requires 20 year registration, you would have to register 20 years; the result would be the same if state A required 20 year registration while state B only requires 15.

Four states (AL, FL, IL, SC) require lifetime for all regardless of offense type, although a 2021 ruling by the SC Supreme Court (Powell v Keel, Opinion No. 28033 (SC 2021)) ruled that low-risk registrants should be allowed a hearing to determine whether or not lifetime registration is justified.

PETITIONING THE COURTS

In general, a petition for termination of registration requirements will involve a character and records check. You’ll be required to maintain a clean post-release record, pay off any offense-related debts (such as fines and fees), and have some good references. Many states place eligibility restrictions; for example, some may limit early termination of registration to certain offense types, or an innocent person, or a 10 year clean record. Whereas a pardon process generally does not require an attorney, court petitions may require an attorney, or one may be needed even if not required simply due to the complexity of court procedures.

Relief from registration varies greatly from state-to-state. In Ohio, only a Tier 1 may petition the court for early termination, as noted on ORC § 2950.15(C)(1), and this petition can be filed by a Registrant convicted in another state. California changed to a tiered system in 2021, but removal from the registry is not automatic; a Tier 1 Registrant can now petition for removal from the registry after 10 years but is unclear if this rule will extend to out-of-state convictions.

EMIGRATION

Moving out of the US is a remote possibility, but you may have to apply for citizenship and denounce your US citizenship, meaning you would lose certain benefits like Social Security. This is not an easy pathway off the registry and requires great resources. Just as is the case in the US, other nations prefer immigrants that will contribute to the advancement of their society. This is not a guarantee either given the fact America is trying to force other nations to adopt sex offense registries. Some states will keep you on their registries long after you move away, and even register you if you live outside the US. Still, if you have the resources and you can find a country open to accepting you this may be a possibility for a few Registrants.

There is currently only scant anecdotal evidence that anyone has successfully applied for political asylum as an RC.

Denise Harvey, a teacher from Florida given a 30-year sentence for sex with a 16 year old, fled to Canada and was granted asylum as a “protected person” (a status showing extradition to one’s home country will lead to torture, cruel and unusual punishment, or death) due to the excessive sentence AND the fact her actions are not a crime in Canada. Harvey is still wanted in the US and can be arrested if she steps foot on US soil. (“Florida sex offender granted asylum in Canada.” CBC News, 16 May 2014.)

YOU GET REMOVED FROM THE REGISTRY. WHAT NEXT?

No thanks to the modern Internet, removal from the registry may not be the end of all problems we face due to the public registry. There are many websites that list mugshots and outdated registry information, including Family Watchdog or Homefacts. Mugshot websites and extortion websites may continue to post information about you that have been otherwise removed from the registry. If your offense made the news or if someone made posts about you on blogs or social media, it may still show up on a Google search. Some Internet posts may even be saved by online Internet archives like Webarchive.org.

Many states do not exactly honor relief from another state’s registry. State statutes in only 9 states imply persons no longer required to register in their home state would not have to register (AR, CT, ID, IA, ME, MO, OH, RI, & WI).

If you have been removed from the registry in one state but are being forced to register in another state, it is possible to be removed from the registry via court order if you are willing to fight registration. A couple of recent cases, one in North Carolina, the other in Florida, give hope for removal from the registry upon moving to a new state under specific circumstances:

• Meredith v Stein, No. 5:17-CV-528-BO (E.D.N.C., 7 Nov 2018): Ruled the state’s process for adding people to the NC registry who had been convicted out of state deprived Plaintiff of a cognizable liberty interest and the procedures protecting that interest were constitutionally inadequate. The Plaintiff moved from Washington State; NC officials initially told him he would not have to register, but forced him to register anyways upon arrival.
• In the May 10, 2017 edition of The Islander (A weekly newspaper in Holmes Beach FL) [REPUBLISHED HERE], it was reported that The 12th Circuit State Attorney Office had dropped a case against a man accused of FTR because his crime predated the registry in Indiana, where the man had been convicted. The defense provided the state with a 2011 court order from Indiana, which “specifically states that the defendant is not required to register because his conviction predated the registry,” Assistant State Attorney Shanna Sue Hourihan wrote in the memo.

HOW THE “HOW TO LEGALLY AVOID THE REGISTRY” BOOKLET WILL SEND YOU BACK TO PRISON

I still field questions from prisoners about a guide entitled “How to Legally Avoid Being Placed on the Sex Offender Registry,” originally published by the Safe Streets Arts Foundation. (There may be similar guides by now with similar names; as with anything online, info can easily be stolen. So I’m sticking specifically with critiquing this particular guide.) This guide (no longer available online as of June 2021) essentially states you can move frequently to avoid registration, but the logic is fatally flawed. The original guide was only 2 pages long, and much of what was written were complaints about the registry. But I’m sharing the relevant portions here to illustrate why too-good-to-be-true registry relief guides are really untrue.

The guide begins, “When we began our research for this guide, we thought that men and women subject to the Sex Offender Registry should follow these examples: either moving to a place that does not have a public Sex Offender Registry (such as Canada) or by going into hiding or even changing their identity (with the help of easy-to follow instruction books like New Name, New Identity available and well-reviewed on Amazon.com). But as we did further research we found there is one major statutory difference between the Sex Offender Registry, that makes it completely voluntary, and other registries.”

Canada does not allow Americans without criminal records into their country, although you can apply for a “Certificate of Rehabilitation” with the Canadian Consulate, and if granted, you could enter Canada. (As an aside, there is a push to publicize Canada’s registry so it could happen at any time.) Emigration from the US is indeed an option but there is no guarantee another country would allow you to emigrate. “Going into hiding” makes you a fugitive subject to immediate arrest, and if you cross state lines, FTRs become federal cases, and most FTRs carry up to 10 year prison sentences. Furthermore, some states have laws specifically blocking RCs from changing their names. Finally, registration is voluntary as much as you have a choice to give a gun-toting robber all your money or not when asked.

The guide continues: “…the Sex Offender Registry is a complex compilation of varying statutes that exist and are enforced on a state-by-state basis. So if you don’t like the Sex Offender Registry statue in one state, you can move legally and quickly to another state, literally overnight. And if you don’t like the Sex Offender Registry in any state, you can still be a US citizen without any fixed address. You can travel constantly from state to state, not calling any one state your residence. Homeless people do it all the time. Such flexibility in movement is your right as a free citizen in a free society, and the basis for you to not be on any registry, regardless of your past.”

As I discussed in a previous chapter, you can move to other states as a registrant but the process is far from “literally overnight.” Some states require registration before moving to the new state. There is a flaw in the logic in assuming no fixed address means you don’t have to register. In some states, even the incarcerated are registered, and when you leave prison, you’re expected to go register ASAP. States generally only allow between 1-5 days for initial registration.

The guide then states, “Now here’s what you need to do if you’re currently on a Sex Offender Registry. Call up your registrar and declare that you’re moving out of state and demand to be removed immediately, and of course don’t show up to re-register since you are no longer a state resident. If you are asked where you’re moving, simply say that you wish that to be private. Then officially become a homeless person without any fixed address. All you need do is declare yourself one. Get a PO Box for your mail. Keep your cell phone, even your home, vehicle and apartment. The fact that you own property in one or more states and that you are storing your belongings at one or more locations does not mean you live there, even with your name on a lease or deed. You can even keep your current job, though you will now be officially commuting to it from out-of-state (when you are not staying briefly with friends and family within state). You don’t have to tell anyone where you live, or that you don’t have a fixed address. The US has strong privacy rights and as a free citizen, your business is your own.”

You still have to prove you are moving to another location, so telling them you aren’t telling them where you are going could get you immediately arrested. Some states, like Florida, keep you on the registry even after you move away. Vehicles and work addresses are still registered, and some states may require you to register property you own, even if you don’t live there. Just because some information is not released publicly does not mean you don’t register such information at all. And yes, homeless registrants are required to register; in fact, many states require more frequent registration if you are transient. Furthermore, some states count aggregate days you sleep at a location. In Illinois, you must register if you visit any location in the state overnight for 3 nights in a given year, so if you visit Chicago overnight on January 1, Effingham on July 4, and East St Louis on December 31, then you MUST register in that state.

At least the guide had the decency to tell you this guide won’t help you if you are “On Paper”!

Some interpreted this guide as suggesting living on a boat and using it to move from state to state. There are a couple of problems with this strategy. First, there is a question of which state actually “possesses” the river. For example, I could walk across a bridge in Cincinnati, Ohio, across the Ohio River, and into Newport, Kentucky. So when did I cross the state line? SCOTUS ruled in 1966 that Kentucky owns the entire river all the way to the Ohio shoreline. Thus, the “boat trick” would not work on the Ohio River.

Second, consider the court ruling in US v. Demarco, 634 F. App’x 253 (11th Cir. 2015). Demarco was registered in Alabama but was arrested for failing to disclose his work status on two trow boats in Louisiana. An Alabama LEO informed Demarco that he had to register in every county or parish in which he was working. He failed to disclose his work status and was arrested. “Consistent with that theory, the evidence proved that DeMarco’s continuing offense began in Alabama, where DeMarco had registered with authorities and started “his interstate journey,” and continued as he traveled through interstate commerce to and worked in Louisiana for four tow boat companies without updating his registration to reflect the change in his location.”

The Court added, “In a prosecution for a violation [of a failure to register or update a registration], it is an affirmative defense that uncontrollable circumstances prevented the individual from complying.” 18 USC 2250(b)(1). DeMarco argues that he “would immediately board a boat” and when he disembarked “his employment had concluded and he had nothing to report,” but DeMarco’s coworkers testified that DeMarco was onshore periodically and could have updated his registration… DeMarco worked onboard a tow boat from March 12 to March 27, but he first visited Morris’s office in Louisiana for orientation… DeMarco worked on two ships during July and August of 2012 and that he was scheduled to work 14 days offshore and 7 days onshore in Louisiana… DeMarco was employed for 25 days and that his boat would have been moored to the dock at least once for him to disembark. The district court reasonably determined that DeMarco’s employment did not create an uncontrollable circumstance that prevented him from updating his registration.” In short, the Courts reasoned that any offshore activity provided an opportunity for registration.

There is a path for some registrants to get off the registry, be it through pardon, through the courts, timing out of the registry if you’re a low-level registrant, or even by emigration. Each of these pathways is not something you’ll immediately achieve. The only way to not have to register upon your release is if your offense is not a registerable offense or if your conviction is overturned. Anyone promising strategies and “lifehacks” to dodge the registry is either misguided or outright scams.