By Aaron C. Davis

Maryland officials in recent weeks quietly removed the mug  shot of convicted child molester Robert M. Haines Jr. from the state’s sex-offe nder registry.

They also deleted the Internet link to the former  middle school teacher’s guilty plea to charges he abused a 13-year-old student  decades ago. Haines’s physical description, the address of the cottage he lives  in near Annapolis, the make and model of the car he drives: Everything the state  had tracked for years to keep him from anonymity was erased.

Image courtesy greenwichmeantime.com

Haines was  removed not because he was exonerated of his crime. His information was taken down because of a recent ruling by the state’s Court of Appeals declaring  sex-offender registration unconstitutional punishment for those who committed  crimes before the registry began in 1995.

Under the ruling, Haines may be  the first of almost one in four registered sex offenders who Maryland could be  forced to scrub from its online database. Maryland officials are now bracing for  the possibility that a wave of lawsuits following his case could require the  state to delist roughly 1,800 of its 8,000 registered sex offenders, state  records, e-mails and interviews show. State officials say they’ll forcefully  challenge each suit.

And the fallout could go further. The state’s  second-highest court is now weighing whether the Haines case should be applied  to a broader group, beginning with a Montgomery County man who pleaded guilty in  2001 to preying on a 12-year-old Pennsylvania girl over the  Internet.

Even though Maryland’s registry existed then, the legislature  did not decide until after he was convicted that his particular crime should  merit listing on the Web site, which allows people to search by name or Zip code  to find details on released sex offenders. Last month, the site was checked by  nearly 12,000 people.

At least five similar cases brought by registered  sex offenders are expected to reach Maryland’s Court of Special Appeals by  September.

If the court continues to apply the same logic that benefited  Haines, the series of cases would effectively unravel Maryland’s tightening of sex-offender rules in 2009 and 2010 — changes that made the state among the toughest on sex-offender registration  and that Gov. Martin O’Malley (D) hailed as one of his administration’s most  important accomplishments on public safety.

“The attorney general and the  governor’s office are going to have to decide how far they want to take this  battle,” said David Wolinski, the outgoing assistant director of Maryland’s  Criminal Justice Information System, the office that administers Maryland’s  registry.

“There’s always a concern when you’ve removed data from a  system that was previously there. One of these individuals — probably more than  one of these individuals — will be a problem again,” said Wolinski, a retired  Baltimore County police officer.

“That’s the scary part, you don’t know  what they are capable of — and that’s really the whole point,” he said. “If we  knew better, we’d have a whole different system than registration.”

Nancy  Forster, Haines’s attorney and the state’s former top public defender, said that  the Haines decision would begin to rein in a Maryland sex-offender registry that  has expanded to include people who are far less dangerous than many ex-convicts  but are stigmatized nonetheless as the worst kind of criminals.

“Many  [registrants] are not pedo­philes. I know, because several of them are my  clients,” Forster said. “One is a 19-year-old who had a consensual relationship  with someone who was one year younger. It waters down the entire reason for  having the registry. . . . I mean, murderers are probably a danger, but there’s  no list for murderers.”

In the court filings, Forster was able to shield  Haines’s identity as “John Doe,” but in an interview she verified the identity  of her client.

Haines, 54, was charged with raping a 13-year-old student  and exposing himself to others when he was a middle school teacher near  Hagerstown in 1983. He resigned following a school investigation, but he was not  criminally charged until more than two decades later, when the victim contacted  police, according to court papers.

Haines pleaded guilty to child abuse  in 2006 but was able to keep his name off the registry through a series of legal  challenges. Citing a clean record since the incident, a judge sentenced him to a  10-year term with all but 41 / 2 years suspended. He was released early in  2008.

In 2009, Haines’s success at staying off the list was among cases  cited by lawmakers in Annapolis as a rationale for tightening Maryland’s  sex-offender registry.

That law, and additional restrictions the  legislature added a year later, forced Haines to register and then reclassified  his crime as one that requires lifetime registration. It also scooped up  hundreds of other convicts. And it extended the length of registration for many  other types of crimes to make Maryland one of just 16 states considered fully  compliant with the federal Adam Walsh Child Protection and Safety  Act.

But in a plurality opinion in March, Maryland’s high court said the  changes acted to “disadvantage” Haines by violating his ex post facto, or double  jeopardy, protections.

It was a decision that put Maryland at odds with  the U.S. Supreme Court and all but a handful of other states’ courts, which have  generally ruled that state and federal sex-offender registries are civil systems  designed to protect the public, not after-the-fact or add-on criminal  punishments for offenders.

The issue is before the Supreme Court in a  separate case that could be decided as early as Monday.

That ruling is  unlikely to immediately affect Maryland, however, because the state’s high court  called the violation of Haines’s civil rights an affront to Maryland’s  Declaration of Independence, not the U.S. Constitution. By basing its ruling on  the state document and not the federal one, it “essentially put the decision  beyond the reach of the Supreme Court,” said David Gray, a criminal law  professor at the University of Maryland.

David Paulson, a spokesman for  Maryland Attorney General Douglas F. Gansler, said that because of that, the  office had determined it was highly unlikely the Supreme Court would hear the  case on appeal. The office decided not to ask it to do so.

O’Malley’s  corrections department and its staff attorneys, who answer to Gansler (D),  instead fought for months to put off the order delisting Haines.

They  relented in recent weeks, Forster, Haines’s attorney, said. She said officials  faced a Sunday deadline that could have led to O’Malley’s secretary of  corrections, Gary D. Maynard, being held in contempt.

“I wanted Gary  Maynard to be put in the Baltimore City Detention Center — I thought it would  have been just punishment,” she said, referring to another simmering public  safety problem for O’Malley — the recent scandal over widespread corruption at  the state-run jail.

Forster said the state should proactively remove all  sex offenders who committed crimes before 1995 from the registry. “The state’s  highest court has spoken, and yet [the O’Malley administration] is going to  force each individual to spend money on a lawyer,” she said.

In a court  appearance this month in the first case to follow Haines’s, Gansler’s office  argued otherwise. The state said the decision should not apply to Thomas H.  Quispe del Pino. The Montgomery County man’s crime of soliciting a young girl  over the Internet in Pennsylvania was made a registerable offense in Maryland  after his conviction. His term on the registry was also subsequently extended by  the changes made by the legislature.

Thomas M. DeGonia, an attorney for  Quispe Del Pino, said the broad question that his and other follow-up cases will  answer is whether Maryland courts truly see the state’s sex-offender registry as  criminal punishment, which must be set in law before a person commits his crime  and is convicted and sentenced for it. Or is it a civil system, with rules that  can be changed after the fact?

“I think the court should call it what it  is,” said DeGonia. “People have tried to say it really isn’t criminal, but the  implications are criminal.”

The court itself, however, will be different  by the time the final appeal is heard in Quispe del Pino’s case. Maryland Court  of Appeals Chief Judge Robert M. Bell, who signed onto the Haines ruling, must  retire this year under state law. O’Malley will appoint his successor.

(First published by The Washington Post and used here by permission) 

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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