Today I had lunch with Houston lawyer Mark Bennett, who recently secured a victory in the Texas Court of Criminal Appeals, which struck down a Texas “online solicitation of a minor statute.” But, Mark tells me, Texas has an odd wrinkle where it is not entirely clear if old convictions under this statute–whether or direct appeal, habeas, or final–will be vacated. There haven’t been many Texas criminal statutes struck down, the sodomy statute at issue in Lawrence v. Texas being the last (and in that case there were no prosecutions or incarcerations pending). Mark mentioned that there are roughly 300 people who have been convicted under this statute.
Getting their judgments vacated will be a slow process, requiring the filing of individual habeas actions in Texas state court. The AEDPA issue may be tricky, as many of their judgments became final over a year ago. But those periods can be tolled.
My question is something different. What happened to people who agreed to register as sex offenders as a result of a conviction, or a guilty plea under the “online solicitation” statute. Shouldn’t those registrations be nullified? If the underlying sex crime is unconstitutional, why in the world should they remain registered?
What about a constitutional challenge? In Smith v. Doe, the Supreme Court upheld sex offender registries against ex post facto challenges, ruling that it is civil and nonpunitive. But a civil and nonpunitive regulatory system can only be applied when the government has reason to believe such steps are necessary. If a convicted person has his sex offense vacated because of an unconstitutional statute, surely it would violate due process to continue this regime. The state can’t place someone on the sex offender registry based solely on an indictment. A conviction, or a guilty pleas is necessary.
Now, could a convicted person sue in federal district court, alleging a violation of due process, by continuing to impose the registration requirement, even though the underlying conviction is nullified?
Or I’ll give you one better. Could a convicted person bring suit in federal court *before* the state court proceeding concludes to vacate the judgment? This could be a nice end-run around the state habeas proceedings. I suspect this would have abstention problems, maybe under Younger, as the district court, not sitting in habeas, would be loathe to find the conviction was invalid as a prerequisite to nullifying the registration requirement.