by Mark Wilson

The Tenth Circuit held that Oklahoma's sex offender reporting and residency requirements do not amount to punishment.

Juston Shaw was convicted of a 1998 Texas sex offense. He moved to Oklahoma ten years later. At the time of his offense, Oklahoma had a sex offender reporting requirement which expired ten years after the offense. The state did not have a sex offender residency requirement in 1998.

By the time Shaw moved to Oklahoma, however, the state had enacted a residency requirement and a more expansive reporting requirement. Both were applied retrospectively to Shaw.

The Oklahoma law prohibits sex offenders from residing within 2,000 feet of a school, playground, park, or a child care center. That restriction prohibited Shaw from residing in a home that he owns, leaving him transient. As such, he was required to report weekly to law enforcement. If he were not a transient, he would have to report every three months.

Shaw brought federal suit, claiming that as applied to him, the Oklahoma sex offender requirements violated the ex post facto prohibition of the United States Constitution. The district court dismissed Shaw's suit, finding that the sex offender restrictions did not amount to

The Tenth Circuit affirmed, finding that "Shaw does not present the clearest proof of a punitive effect from the reporting and residency restrictions."

The Court rejected Shaw's argument that it should give deference to an Oklahoma Supreme Court decision that determined that parts of the statute violated Oklahoma's ex post facto clause. See: Starkey v. Oklahoma Department of Corrections, 305 P.3d 1004 (Okla. 2013).

"Deference to the state court would be particularly inappropriate here because the Oklahoma Supreme Court evaluated the statute's constitutionality under the Oklahoma

Constitution, not the U.S. Constitution," the court observed. "Indeed, the Oklahoma Supreme Court disavowed any obligation to follow federal court precedents on the intent-effects test." The court explained that "unlike the Oklahoma Supreme Court, we are not free to disavow our precedents on the intent-effects test."

The court first rejected Shaw's argument "that the reporting and residency restrictions resemble banishment and probation, which he regards as two historical forms of punishment."

The court then found that "Oklahoma's residency restrictions are not sufficiently harsh to constitute an affirmative disability or restraint that has a punitive effect."

Rejecting Shaw's claim that "he was made homeless by the Oklahoma statute," the Court found that "Mr. Shaw is a transient because he failed to verify that his residence complied with the Oklahoma statute's residency restrictions." Noting that "this might be a different case if Mr. Shaw was forced out of his home because a school was built within 2,000 feet of his residence," the Court observed that "Shaw has not presented any evidence that he was forced out by a newly built school."

The court ultimately affirmed the dismissal of Shaw's claim, finding that the statute's effects were not punitive, and therefore, do not violate the ex post facto prohibition. It was clear to limit its conclusion to Shaw's circumstances, however, noting that he brought an as-applied challenge. 

See: Shaw v. Patton, 823 F.3d 556, 571–72 (10th Cir. 2016) 

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