Tennessee’s legal struggles with its sex offender registry could cost taxpayers

Dozens of people have scored legal wins against Tennessee’s sex offender registry law since federal judges ruled it violates constitutional protections against retroactive punishment. The situation could cost Tennessee taxpayers hundreds of thousands of dollars in attorney fees.

Judges have repeatedly ruled against the law, and a recent development has made it so those with convictions from more than 20 years ago can be removed in a matter of weeks if they can afford it.  

How we got here

U.S. District Judge Eli Richardson first ruled in February 2021 that those who committed a qualifying crime before the registry’s creation by the General Assembly in 2004 were being subjected to punishment that didn’t exist when they were convicted, which violates the ex post facto clause of the U.S. Constitution.

After that, the state continued to suffer losses in court.

Flaws in the system:Prosecutors said she was a victim. She still had to register as a sex offender in Tennessee.

Things reached a tipping point in March of this year, when District Judge Aleta A. Trauger wrote in a decision that past rulings “definitely suggest” that “Tennessee’s policy of continuing to apply the Act to other individuals who committed pre-enactment offenses is unconstitutional.”

The state of Tennessee appealed Trauger’s decision to the 6th U.S. Circuit Court of Appeals in March, arguing that placement on the sex offender registry is not punitive and thus not unconstitutional.

The Fred D. Thompson United States Courthouse and Federal Building  Wednesday, June 22, 2022, in Nashville, Tenn.

How dozens have been removed from the registry

Pending the results of that appeal, dozens of people who were convicted of a sex crime before 2004 have sued and been successfully removed from the registry, at least temporarily, without opposition from the state.

Here’s how that typically happens: An attorney files a lawsuit arguing a client’s placement on the sex offender registry violates the ex post facto clause; then the attorney asks for a court to issue an injunction ordering the state to take the client off the registry, which the state doesn’t oppose (this doesn’t mean the state concedes the sex offender registry law is unconstitutional); the judge grants the order; then the state asks the judge to pause the case until the 6th Circuit Court rules on its appeal.

“Federal district courts in Tennessee have found that [Tennessee’s sex offender registry law] violates the ex post facto clause and have frequently granted preliminary and permanent injunctive relief to sexual offenders,” U.S. District Judge Eli Richardson wrote in an order granting an injunction in October.

Attorney Kyle Mothershead, who filed 14 of these lawsuits, said it is typically a pretty quick process now.

“If someone retains our office, they could be off the registry in like three or four weeks if their conviction is from before 2004,” Mothershead said.

The problems with that — and a simple solution

To get off the registry, though, the offenders need money to pay attorneys — unless they find representation who’ll handle a case on contingency, meaning without pay upfront in hopes the state will cover attorney fees.

“It’s certainly like the rest of the justice system,” Mothershead said, in that it helps to have money to pay a lawyer.

However, Mothershead said there’s a good chance many of these plaintiffs will be awarded attorney fees.

That’s because he’s optimistic that the 6th Circuit won’t reverse the district court’s decision given its past rulings. That court found in 2016 that Michigan’s registry laws violated the ex post facto clause, and “there’s nothing about [Tennessee’s registry law] that I’m aware of that’s nicer, kinder, gentler on these registered offenders,” Mothershead said.

Given that records show almost 30 challenges to the registry have been filed in federal courts in Tennessee just this year, attorney fees for these cases could wind up costing the state as much as seven figures over several years, depending on how much litigation occurs after the 6th Circuit decision, Mothershead said. The Attorney General’s Office must also use resources to handle these cases.

Mothershead pointed out that there is a relatively simple fix.

“You might wonder why the legislature won’t change the law if … Tennessee keeps losing,” Mothershead said. “Basically, [that change] would be to not make the registry laws retroactive.”

But he speculated there’s not much political incentive to go “soft” on sex offenders.

There is little to no proof that sex offender registries are effective at reducing crime. The state has admitted as much, writing in a 2021 lawsuit: “Defendants have no evidence showing that the Act generally reduces the incidence of criminal offenses, other than statements of law enforcement,” and “Defendants have no empirical evidence showing that the Act provides any other societal benefits, other than statements of law enforcement.”

But generally speaking, the public is supportive of sex offender registries, and lawmakers tout them as a tool to protect the community. State Rep. William Lamberth, R-Portland, who is a member of the House Criminal Justice Committee, said he feels the General Assembly’s main goal is to “keep Tennesseans safe.” So while he hopes to be fair to convicted felons, he said the legislature has determined that “there’s nothing that we know of right now that would need to be changed proactively.”

“Obviously, if a court were to strike down a portion of our sex offender laws, or all of them, then we would immediately jump into action to remedy whatever problems a court had identified,” Lamberth said.

Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.

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