Doe v. Department of Public Safety & Correctional Services

62 A.3d 123, 430 Md. 535, 2013 WL 778337, 2013 Md. LEXIS 142

• Court: Court of Appeals of Maryland
• Decided: March 4, 2013
• Docket: No. 125
• Status: Published

Opinions

GREENE, J.

The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl.Vol., 2012 Cum.Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as “C.P. § ”), requires persons convicted of certain sex offenses to register¹ with “the person’s super vising authority.”² We are asked to determine whether, under this statute, the State can legally require Petitioner to register. Petitioner argues that requiring him to register as a sex offender: (1) violates Petitioner’s right to be free from ex post facto laws pursuant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to the Maryland Declaration of Rights; (2) violates Petitioner’s due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and (3) violates the plea agreement entered into when he pled guilty to the underlying crime.

During the 1983-84 school year, at the time of Petitioner’s commission of the sex offense mentioned herein, the Maryland sex offender registration statute did not exist. The General Assembly enacted the sex offender registration statute in 1995. As a result of amendments to that statute in 2009 and 2010, Petitioner is now required to register as a sex offender. We shall hold that requiring Petitioner to register as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights. Pursuant to our determination that Petitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 19, 2006, John Doe³ (“Petitioner”) pled guilty to, and was convicted of, a single count of child sexual abuse under Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.), Article 27 § 35A.⁴ Section 35A(a)(4)(i) prohibited “any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child.”

Petitioner’s conviction was based on his inappropriate contact with a thirteen-year-old student during the 1983-84 school year when Petitioner was a junior high school teacher. At the time of the incident, allegations concerning Petitioner’s misconduct were reported to school officials, the school officials conducted an investigation, and Petitioner resigned from his teaching position at the school. No charges, however, were brought at that time.

Approximately 20 years after the incident, in 2005, a former student contacted law enforcement and reported the sexual abuse that occurred during the 1983-84 school year. According to the State, in 2005, Petitioner was charged with various sex related offenses involving children.

On June 19, 2006, Petitioner and the State presented a plea agreement to the trial judge, which the judge accepted as binding. The agreement called for Petitioner to plead guilty to one count of child sexual abuse, a crime that carried a maximum sentence of fifteen years incarceration. In exchange for the guilty plea, the agreement (1) provided for a pre-sentence investigation; (2) allowed Petitioner to remain on bond until the sentencing date; (3) established a five-year cap on the actual term of incarceration the trial court could impose, allowing Petitioner to argue for a reduced sentence; and (4) provided that the State would not pursue the other outstanding charges or any subsequent related uncharged crimes. The agreement did not, however, address registration as a sex offender. After accepting the binding plea agreement, the trial judge entered a conviction and ordered a presentence investigation.

Petitioner’s sentencing hearing was held on September 6, 2006. Before imposing sentence, the trial judge explained to Petitioner:

1 am impressed with the life that you have lived since being relieved of your responsibilities as a teacher.... I’m also impressed by some of the difficulties that you’ve experienced in your life and the responsibility that you showed to your family and the responsibility that you’ve shown to others [ever] since that time. So the [court] is certainly taking into consideration all of the things that you have done of a positive nature since the time of this incident back in the 1980s. And what has been also said is true that rehabilitation is one of the factors that the [trial court] must look at, and you appear to have rehabilitated yourself significantly since the time of this incident.

(Emphasis added). The trial judge then stated, however, that “there are other things the [trial court] must consider, such as, the nature of the crime.” The trial judge noted that “[c]hild abuse is a very serious and heinous crime” and that the victim was a “child” and a “student.” The trial judge stated:

Retribution is also a valid factor, punishment for punishment’s sake, as well as general deterrence, that is to prevent and deter others from committing acts such as this. Once again, these are just as valid as rehabilitation, specific deterrence, that is, to prevent [Petitioner] from committing an act such as this again, which I don’t think will occur.

(Emphasis added). The trial judge imposed a sentence of ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration. As one of the conditions of Petitioner’s probation, he was ordered to “register as a child sex offender.” Additionally, the trial judge ordered Petitioner to pay court costs and a fine of $500.

Approximately one month later, Petitioner filed a Motion to Correct an Illegal Sentence challenging the $500 fine and the requirement that he register as a child sex offender. Petitioner argued that the trial court “lacked authority to require [Petitioner] to register as a child sex offender.” Petitioner noted that the Maryland sex offender registration statute that was in effect at that time applied retroactively to a child sex offender who committed his or her offense on or before October 1, 1995, if the offender was “under the custody or supervision of the supervising authority on October 1, 2001.” Petitioner contended that he could not be required to register because “[t]here was no registry at the time of the instant offense and the law, as written, [did] not apply retroactively to [Petitioner]” because he “was indisputably not under the custody or supervision of the supervising authority on October 1, 2001 as that term is defined in the statute.” Additionally, Petitioner asserted that the fine was “not a permitted penalty under [the law he was convicted for violating].” On November 1, 2006, the Circuit Court agreed with Petitioner and issued an order striking the fine and the requirement that Petitioner register as a child sex offender.

In December 2008, Petitioner was released early from prison. In 2009, the Maryland General Assembly passed a new law, effective October 1, 2009, changing the sex offender registration requirements. See C.P. § 11-701 et seq. (2001, 2008 Repl.Vol., 2009 Cum.Supp.); 2009 Md. Laws, Chap. 541. The new sex offender registration statute retroactively required a child sex offender who committed a sex offense prior to October 1, 1995, but was convicted on or after October 1, 1995, and had not previously been required to register under Maryland law, to now register as a child sex offender. C.P. § 11—702.1(c)(ii) (2001, 2008 Repl.Vol., 2009 Cum.Supp.). Petitioner testified that on October 1, 2009, Petitioner’s probation officer directed Petitioner, under threat of “arrest[ ] and incarceration],” to register as a child sex offender. Petitioner maintains that he did not agree with the requirement, but registered, against the advice of counsel, as a child sex offender in early October 2009.

In 2010, the Maryland General Assembly again amended the sex offender registration statute re-categorizing Petitioner, based upon his prior conviction, as a Tier III sex offender. C.P. §§ 11-701(q)(1)(ii), 11-704(a)(3) (2001, 2008 Repl.Vol., 2010 Cum.Supp.); 2010 Md. Laws, Chaps. 174 and 175. As a result of the 2010 amendment, generally, sex offenders are designated by tiers. See C.P. § 11-701(l) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Tier III is the most severe designation requiring lifetime registration, as opposed to Tier II offenders who register for 25 years or Tier I offenders who register for 15 years. See C.P. § 11-707(a)(4) (2001, 2008 RepL.Vol., 2012 Cum.Supp.). Additionally, Tier III offenders must re-register every three months, while Tier I and Tier II offenders are required to reregister every 6 months. C.P. § 11-707(a) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).

In October 2009, in a separate civil proceeding, Petitioner filed in the Circuit Court for Anne Arundel County a Complaint for a Declaratory Judgment seeking a declaration that he not be required to register as a sex offender under the Maryland sex offender registration statute, and that he be removed from the Maryland Sex Offender Registry. Petitioner’s Complaint advanced three arguments, including that to require him to register, when he was not informed of that requirement when he pled guilty, would improperly render his guilty plea involuntary. None of the arguments advanced in the Complaint, however, explicitly addressed the constitutionality of the registration requirement. After the State’s successful “Motion for Transfer of Action,” the case was transferred to the Circuit Court for Washington County, the county where Petitioner committed his crime, pled guilty, and was sentenced. During the Circuit Court proceedings, the parties addressed the issues presented in Petitioner’s Complaint. In addition, counsel for the State⁵ argued to the court that requiring Petitioner to register did not violate the prohibition against ex post facto laws. At the end of the hearing, the trial judge denied Petitioner’s request for declaratory relief and ordered that Petitioner “shall not be removed from the sex offender registry.”⁶

Petitioner noted an appeal to the Court of Special Appeals. In Petitioner’s appeal, he once again contended that requiring him to register as a sex offender violated the terms of the plea agreement. In addition, Petitioner explicitly advanced challenges to the application of the statute on ex post facto, bill of attainder, equal protection, and due process grounds. The State argued that Petitioner failed to raise the four constitutional arguments in his Complaint and, hence, the arguments were not preserved for appeal. The intermediate appellate court determined that the due process and ex post facto arguments were properly raised in the trial court and, therefore, addressed them. The Court of Special Appeals, however, determined that the equal protection and bill of attainder arguments were not properly raised in the trial court and, accordingly, did not consider those issues. In an unreported opinion, the intermediate appellate court rejected all of Petitioner’s arguments and affirmed the trial court’s judgment requiring Petitioner to remain on the Maryland Sex Offender Registry. We issued a writ of certiorari in the present case, 425 Md. 227, 40 A.3d 39 (2012), to consider the following three questions:

1. Given the highly punitive and restrictive nature of Maryland’s newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post fado laws and ex post fado restrictions?⁷

2. Do Maryland’s sex offender registration laws violate Mr. Doe’s federal and state constitutional rights to due process?

3. Given that the plea agreement entered into by Mr. Doe did not, and indeed could not have, contemplated registering as a sex offender, is he entitled to specific performance of the plea agreement?

DISCUSSION

As a preliminary matter, we shall address both parties’ contentions that this Court should not consider certain arguments. First, the State asserts in its brief to this Court that Petitioner did not raise the ex post fado issue in his Complaint, and therefore, this Court, on review of the case, should not consider the issue. We reject this argument. Maryland Rule 8-131 (a) provides that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court....” Md. Rule 8-131 (a) (emphasis added). As noted recently in Duckett v. Riley, 428 Md. 471, 476, 52 A.3d 84, 87 (2012) (quotation omitted), “to ascertain the meaning of a ... rule of procedure we first look to the normal, plain meaning of the language.” The use of the word “or” indicates that an issue must be raised in or decided by the trial court, but it is not necessary for both to occur to preserve the issue for appellate review. The ex post fado issue was raised in the trial court and addressed by both the State and the trial judge.⁸ The issue was then raised in the Court of Special Appeals. Accordingly, the ex post facto issue is plainly preserved for our review.

Second, Petitioner includes in his Reply Brief to this Court a Motion to Strike the State’s argument that federal law precludes “Maryland courts from granting [Petitioner] the relief he seeks.... ” The State contends, in its brief to this Court, that the federal Sex Offender Registration and Notification Act, SORNA, 42 U.S.C. § 16901 et. seq., imposes upon Petitioner an “independent obligation to register as a Tier III sex offender.” The State therefore, asserts that this Court cannot grant Petitioner the relief he seeks, “an order exempting [Petitioner] from an obligation to register as a Tier III sex offender.” Petitioner specifically notes in his brief to this Court that he is challenging his registration requirements imposed by Maryland law, not federal law. Thus, the question of whether Petitioner is required to comply with federal law and what is required of Petitioner to comply is not before this Court. As Petitioner’s federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register.

Moreover, Petitioner seeks ultimately a declaration exempting him from the obligation to register under the Maryland sex offender registration statute. We have held that a declaratory judgment is appropriate when there is an actual controversy between the parties and the declaratory judgment will terminate the conflict. See Green v. Nassif, 426 Md. 258, 292-93, 44 A.3d 321, 341-42 (2012); Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 81-82, 5 A.3d 683, 687-88 (2010); Md.Code (1973, 2006 Repl.Vol.), § 3-409 of the Courts and Judicial Proceedings Article. In the present case, Petitioner is currently registered as a sex offender and is threatened with criminal prosecution, should he fail to comply with the law, under a Maryland statute that he claims is unconstitutional as applied to him. See Grimm v. County Comm’rs of Washington County, 252 Md. 626, 632-33, 250 A.2d 866, 869 (1969) (citations omitted). In light of this actual controversy between the parties, a determination of whether the statute is unconstitutional as applied to Petitioner, and whether he should be removed from the Sex Offender Registry, will resolve the conflict. Therefore, pursuant to Maryland law, entry of a declaratory judgment would be proper and to do so would not require this Court to construe federal law with respect to SORNA.

I. The Sex Offender Registration Statute in Maryland

In order to address the ex post facto issue, it is necessary to provide some relevant history of sex offender registration in Maryland. In 1995, the Maryland General Assembly first enacted the Maryland sex offender registration statute. State v. Duran, 407 Md. 532, 546-47 n. 7, 967 A.2d 184, 192 n. 7 (2009) (quotation omitted); 1995 Md. Laws, Chap. 142. As enacted, the statute applied prospectively to sex offenders who committed their crimes after the statute went into effect on October 1, 1995. See 1995 Md. Laws, Chapter 142, § 3.

In 2001, the sex offender registration statute was amended and was applied retrospectively to different groups of sex offenders,⁹ including “a child sex offender who committed [his or her] sexual offense on or before October 1, 1995” if that offender was “under the custody or supervision of the supervising authority on October 1, 2001.” C.P. § 11-702.1 (2001); 2001 Md. Laws, Chap. 221.

In 2009, the retroactive application of the statute was once again amended and registration was required of a child sex offender who committed his or her crime before October 1, 1995 but was convicted on or after October 1, 1995, irrespective of when the offender was incarcerated or under supervision. See C.P. § 11-702.1 (2001, 2008 Repl.Vol., 2009 Cum. Supp.); 2009 Md. Laws, Chap. 541.

In 2010, the sex offender registration statute was amended again, and among other things, the amendment addressed the retroactive application of the statute. See C.P. § 11-702.1 (2001, 2008 Repl.Vol., 2010 Cum.Supp.); 2010 Md. Laws, Chaps. 174 and 175. The 2010 amendment required retroactive registration of all persons who were already required to register on September 30, 2010, the day before the amendment went into effect. See C.P. § 11-702.1(a)(2) (2001, 2008 Repl.Vol., 2010 Cum.Supp.). This language had the consequence of incorporating the retroactive application of the statute as amended in 2009.

Petitioner committed the underlying child sex offense during the 1983-84 school year, long before 1995. He was not under custody or supervision of the State until after he was charged with the relevant offense in 2005. Therefore, Petitioner is required to register as a sex offender pursuant to the 2009 and 2010 amendments’ retroactive application of the sex offender registration statute.

II. Constitutional Argument

Petitioner argues that “[g]iven their highly punitive and restrictive nature, retroactive application of Maryland’s sex offender registration laws violates the federal constitutional ban on ex post facto laws[¹⁰] and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions.” In response, the State contends that “[t]he Court of Special Appeals correctly concluded that the Maryland [sex offender registration statute] does not violate either the federal or State ... prohibitions on ex post facto laws.” We conclude, however, that requiring Petitioner to register as a sex offender violates Article 17’s prohibition against ex post facto laws; thus, we need not, and do not, address whether requiring Petitioner to register violates the prohibition against ex post facto laws under Article 1 of the federal Constitution.¹¹

Furthermore, in determining that the retroactive application of the statute violates Article 17, we need not, and do not, address whether requiring Petitioner to register affects his constitutional due process rights. We further offer no opinion on whether registration is a valid form of punishment under the Maryland Constitution or whether the other constitutional rights of registrants are affected by having to register as a sex offender under the Maryland sex offender registration statute. See Smith v. Doe, 538 U.S. 84, 114, 123 S.Ct. 1140, 1158-59, 155 L.Ed.2d 164, 190-91 (2003) (Stevens, J., dissenting) (concluding that the retroactive application of the Alaska sex offender registration statute violates the prohibition on ex post facto laws but does not give rise to a right to additional procedural safeguards under the Due Process Clause).

A. We examine Petitioner’s contention pursuant to Article 17 of the Maryland Declaration of Rights.

Article 17 of the Maryland Declaration of Rights provides: That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.

Md. Decl. of Rts., Art. 17.

In the past, we have read the protection against ex post facto laws in Article 17 of the Declaration of Rights in pari materia with, or as generally having the same meaning as the Ex Post Facto Clause in Article 1 of the federal Constitution. See Dep’t of Public Safety and Corr. Serv. v. Demby, 390 Md. 580, 608, 890 A.2d 310, 327 (2006) (citations omitted); Khalifa v. State, 382 Md. 400, 425, 855 A.2d 1175, 1189 (2004) (citations omitted); Evans v. State, 382 Md. 248, 280 n. 13, 855 A.2d 291, 310 n. 13 (2004) (citations omitted). We have indicated, however, that this Court will not always limit the protection provided by Article 17 to that which is provided by the federal Constitution. In Allstate Ins. Co. v. Kim, 376 Md. 276, 289-90, 829 A.2d 611, 618-19 (2003), we explained that when determining if the retroactive application of a statute “contravene[s] some Constitutional right or prohibition,” including “violating] the prohibition against ex post facto laws,” we must consider both the federal and state protections because the standards may be different. Petitioner urges this Court to “join the growing number of states relying on their own constitutions to find [the retroactive application of sex offender registration] violative of ex post facto prohibitions.” ¹²

Throughout our case law, we have recognized that, in many contexts, the protections provided by the Maryland Declaration of Rights are broader than the protections provided by the parallel federal provision. As we have stated:

Many provisions of the Maryland Constitution ... do have counterparts in the United States Constitution. We have often commented that such state constitutional provisions are in pan materia with their federal counterparts or are the equivalent of federal constitutional provisions or generally should be interpreted in the same manner as federal provisions. Nevertheless, we have also emphasized that, simply because a Maryland constitutional provision is in pan materia with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart. Furthermore, cases interpreting and applying a federal constitutional provision are only persuasive authority with respect to the similar Maryland provisions.

Dua v. Comcast Cable, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002) (emphasis in original); see also Attorney General v. Waldron, 289 Md. 683, 714, 426 A.2d 929, 946 (1981) (citation omitted) (“Although the equal protection clause of the fourteenth amendment and the equal protection principle embodied in Article 24 [of the Maryland Declaration of Rights] are ‘in pari materia,’ and decisions applying one provision are persuasive authority in cases involving the other, we reiterate that each provision is independent, and a violation of one is not necessarily a violation of the other.”); Green v. Zendrian, 916 F.Supp. 493, 497-98 n. 3 and n. 4 (D.Md.1996) (quoting Murphy v. Edmonds, 325 Md. 342, 354-55, 601 A.2d 102, 108 (1992)) (stating both that “the [Maryland] Court [of Appeals] has repeatedly held that state and federal provisions in pari materia are ‘obviously independent and capable of divergent application^]’ ” and that “[a] Maryland court has greater latitude than this [federal court] to decline to follow the [United States] Supreme Court’s interpretation of the Maryland Declaration of Rights”).¹³

In other contexts, we have ensured that the rights provided by Maryland law are fully protected by departing from the United States Supreme Court’s analysis of the parallel federal right. See Frey v. Comptroller of the Treasury, 422 Md. 111, 177, 29 A.3d 475, 513 (2011) (“[E]ven though we have already determined that the [challenged tax] does not violate the Equal Protection Clause of the federal Constitution, we must address separately whether, under the applicable Maryland authorities, that tax violates the State’s equal protection guarantee.”); Parker v. State, 402 Md. 372, 399, 936 A.2d 862, 878 (2007) (determining that if under the United States Supreme Court’s interpretation of federal law, the Fourth Amendment’s exclusionary rule does not apply to violations of the “knock and announce” rule, under “the peculiar circumstances” of that case, the evidence was still excludable if it violated Maryland’s “knock and announce” rule); Hardaway v. State, 317 Md. 160, 163, 166-67, 169, 562 A.2d 1234, 1235, 1237, 1238 (1989) (determining that while the United States Supreme Court held that “giving a ‘no adverse inference’ instruction over a defendant’s objection does not violate the defendant’s Fifth Amendment privilege against self-incrimination,” giving the instruction over defendant’s objection in that case did violate Maryland’s protections against self-incrimination); Choi v. State, 316 Md. 529, 535-36 n. 3, 545, 560 A.2d 1108, 1111 n. 3, 1115 (1989) (concluding that, while in only two previous situations had Article 22 of the Declaration of Rights been read to provide broader protections against being compelled to make a self-incriminating statement than the Fifth Amendment to the federal Constitution, under the facts of that case, “[E]ven if [the petitioner] had waived her Fifth Amendment privilege, she certainly did not waive her privilege against compelled self-incrimination under Article] 22 of the Maryland Declaration of Rights.”).

We are persuaded, in the present case, to follow our longstanding interpretation of the ex post facto prohibition and depart from the approach taken by the United States Supreme Court when it analyzed the Alaskan sex offender registration statute in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990), the United States Supreme Court rejected the “disadvantage” standard, which, as noted below, was articulated in Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506, 511 (1883), and Weaver v. Graham, 450 U.S. 24, 29, 33-34, 101 S.Ct. 960, 964, 966-67, 67 L.Ed.2d 17, 23, 26 (1981), and adopted by this Court in Anderson v. Dep’t of Health & Mental Hygiene, 310 Md. 217, 224, 226-27, 528 A.2d 904, 908, 909 (1987). We, however, have not abandoned the “disadvantage” analysis. Repeatedly in cases where we have addressed the ex post facto prohibition since the Supreme Court decided Collins, we have said, the “two critical elements” that “must be present” for a law to be unconstitutional under the ex post facto prohibition are that the law is retroactively applied and the application disadvantages the offender. In those cases, we have continued to express the ex post facto prohibition in terms of the disadvantages to the offender. Although the Supreme Court appears to have narrowed the scope of the federal Constitution’s protection against ex post facto laws, we elect to follow the principle of stare decisis and continue to interpret Article 17 as offering broader protection.

The prohibition against ex post facto laws is rooted in a basic sense of fairness, namely that a person should have “fair warning” of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive legislation. See Demby, 390 Md. at 608-09, 890 A.2d at 327 (citations and quotations omitted) (noting that there are “[t]wo paramount protections” provided by prohibitions against ex post facto laws; “the assurance that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed,” and a restriction on “governmental power by restraining arbitrary and potentially vindictive legislation”); Khalifa, 382 Md. at 425, 855 A.2d at 1189 (emphasis and quotations omitted) (noting that the basis for ex post facto protections is to “assure that legislative Acts give fair warning of their effect!,]” and to “protect!] liberty by preventing governments from enacting statutes with manifestly unjust and oppressive retroactive effects”); see also Lewis v. State, 285 Md. 705, 713, 404 A.2d 1073, 1077 (1979) (citations omitted) (concluding that because a procedural rule, as it existed at the time of the defendant’s trial, precluded the trial from going forward, even if this Court were to change the rule, we would do so prospectively because “Although it might not violate constitutional requirements to now modify the common law rule and apply such change retroactively to validate the defendant’s unlawful trial, to do so may, in our view, impinge upon basic fairness.”); Commonwealth v. Murphy, 389 Mass. 316, 451 N.E.2d 95, 99 (1983) (recognizing that “the concept underlying the prohibition against ex post facto laws is ... based on fundamental fairness”).

Based on principles of fundamental fairness and the right to fair warning within the meaning of Article 17, retrospective application of the sex offender registration statute to Petitioner is unconstitutional. As noted above, Petitioner committed his sex offense during the 1983-84 school year. The Maryland sex offender registration statute did not go into effect until over a decade later in 1995. As a result of the 2009 and 2010 amendments to the statute, the registration requirements were applied retroactively to Petitioner. He could not have had fair warning that he would be required to register. In fact, during the 2010 trial court proceedings in the present case, the trial judge, who also presided over Petitioner’s original sentencing four years earlier, stated “no one could have anticipated, I certainly didn’t in 2006, that in 2009, the law would change to require someone to register if an offense had occurred during the time period that it did occur in this particular case.” If in 2006, “no one could have anticipated” that Petitioner would be required to register, he could hardly have had fair warning of the requirement two decades earlier. Petitioner could not have had fair warning of, and should not face, any legally imposed sanctions beyond those provided for at the time of the commission of his crime. Cf. Khalifa, 382 Md. at 426, 855 A.2d at 1190 (determining that the application of a law did not violate the ex post facto prohibition in part because it gave “fair warning” of its effect). Ensuring this protection is especially vital in this case because a sex offender registration statute “imposes significant affirmative obligations and a severe stigma on every person to whom it applies.” Wallace v. State, 905 N.E.2d 371, 379 (Ind.2009).

Consistent with our precedent and the principles of fairness that underlie the ex post facto prohibition, we elect to diverge from limiting Article 17’s protections to only those provided by federal law. In Anderson v. Dep’t of Health & Mental Hygiene, 310 Md. 217, 528 A.2d 904 (1987), we were asked to determine whether a change in the law making it harder for a person to be released from a mental hospital, to which he had been committed as a result of a criminal conviction, violated both Article 17 and the federal prohibition against ex post facto laws. We first stated that both the federal and Maryland ex post facto prohibitions relate to “criminal or penal laws or the consequences of an offense.” 310 Md. at 223, 528 A.2d at 907 (emphasis added). After noting that limitation, we concluded that the change in the law violated both prohibitions against ex post facto laws, by adopting the standard the United States Supreme Court applied when analyzing a federal ex post facto allegation in Kring, 107 U.S. at 235, 2 S.Ct. at 455, 27 L.Ed. at 511, namely that the prohibition “extends broadly to any law passed after the commission of an offense which ... in relation to that offense, or its consequences, alters the situation of a party to his disadvantage[.]” 310 Md. at 224, 528 A.2d at 908 (emphasis in original) (quotations omitted).

In Anderson, we found further support for the “disadvantage” standard in four other United States Supreme Court cases: Miller v. Florida, 482 U.S. 423, 430-31, 107 S.Ct. 2446, 2451-52, 96 L.Ed.2d 351, 360-61 (1987); Weaver, 450 U.S. at 29, 33, 101 S.Ct. at 964, 966-67, 67 L.Ed.2d at 23, 26; Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182, 1186 (1937); and In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835, 840 (1890). 310 Md. at 226-27, 528 A.2d at 909. Three years later, in the 1990 case, Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898 (1990), we relied on this Court’s opinion in Anderson and the Supreme Court’s decisions in Medley, Lindsey, and Weaver, and held that a law making it more difficult for a person confined at the Patuxent Institution to be paroled violated Article 17 and Article 1 of the federal Constitution because it “clearly operated to [the offender’s] disadvantage.” 319 Md. at 664-67, 669, 574 A.2d at 912-14, 915.

Two weeks after this Court issued Gluckstem, the United States Supreme Court overruled Kring, and disavowed the notion that the federal “Ex Post Facto Clause ... include[s] ... any change which alters the situation of a party to his disadvantage.” Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990) (quotation omitted). Rather, the Supreme Court limited the prohibition against ex post facto laws to only the categories enumerated in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798).¹⁴ 497 U.S. at 50, 110 S.Ct. at 2723, 111 L.Ed.2d at 44. The Supreme Court has explained the effect of Collins on the federal Constitution’s prohibition against ex post facto laws:

Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders.... But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood .... After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.

California Dep’t of Corr. v. Morales, 514 U.S. 499, 506-07 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588, 595 n. 3 (1995) (citations omitted). In Collins and Morales, the Supreme Court abandoned the standard that the protection against ex post facto laws extends to laws, retroactively applied, that act to the disadvantage of the offender. We, however, have continued to interpret the prohibition against ex post facto laws, like the Supreme Court had in past cases, such as in Weaver and Kring, as protecting against laws, which, when retroactively applied, disadvantaged an offender. See Dep’t of Public Safety and Corr. Servs. v. Demby, 390 Md. 580, 609, 890 A.2d 310, 327 (2006); Khalifa, 382 Md. at 426, 855 A.2d at 1189-90; Frost v. State, 336 Md. 125, 136, 647 A.2d 106, 112 (1994).

Four years after the Collins opinion, in a 1994 case, Frost v. State, we again looked to Weaver as persuasive authority when determining if a law violated both Article 17’s and the federal Constitution’s prohibition against ex post facto laws. Quoting Weaver, we stated that “[t]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” 336 Md. at 136, 647 A.2d at 112 (emphasis added) (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964, 67 L.Ed.2d at 23).

In 2003, in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court employed a different approach when it analyzed whether the retroactive application of the Alaskan sex offender registration statute violated the federal ex post facto prohibition. In determining that it did not, the Supreme Court applied a two-part analysis to conclude that the Alaskan statute did not “constitute[ ] retroactive punishment forbidden by the Ex Post Facto Clause.” 538 U.S. at 92, 105-06, 123 S.Ct. at 1146, 1154, 155 L.Ed.2d at 176, 185. First, the Court determined “that the intent of the Alaska Legislature [in enacting Alaska’s sex offender registration statute] was to create a civil, nonpunitive regime.” 538 U.S. at 96, 123 S.Ct. at 1149, 155 L.Ed.2d at 179. Because the Supreme Court concluded that the Alaskan legislature intended the statute to be “civil,” the Court next examined whether there was “the clearest proof’ that the Alaskan sex offender registration statute was “so punitive either in purpose or effect as to negate [Alaska’s] intention to deem it civil.” 538 U.S. at 92, 123 S.Ct. at 1147, 155 L.Ed.2d at 176 (quotations omitted). Using the factors articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963), the Supreme Court determined that the party challenging the retroactive application of the statute “[could not] show, much less by the clearest proof, that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme[,]” and, therefore, concluded that Alaska’s sex offender registration statute “is nonpunitive, and its retroactive application does not violate the [federal Constitution’s] Ex Post Facto Clause.” 538 U.S. at 97, 105-06, 123 S.Ct. at 1149, 1154, 155 L.Ed.2d at 179, 185.

Although the Supreme Court applied the two-part test and offered a more narrow protection in Smith, the next year, in Khalifa, this Court did not reference the Supreme Court’s more limited two-part intent-effects test for addressing an alleged ex post facto violation. Rather, we reaffirmed our holding in Frost, that the “two critical elements” that “must be present” for a criminal or penal law to be an unconstitutional ex post facto law is that the law is retroactively applied to an offender, and that it disadvantages the offender. Khalifa, 382 Md. at 426, 855 A.2d at 1189-90. And, two years later, in Demby, we once again quoted Weaver and its statement that the “two critical elements” that needed to be proven to prohibit a penal or criminal law as an ex post fado law were that it was retroactively applied and that it disadvantaged the offender. 390 Md. at 609, 890 A.2d at 327.

With Collins, the Supreme Court limited the scope of the federal protection against ex post fado laws. We should not. Here, this Court is faced with a choice. We can follow stare decisis and continue to protect against laws that retroactively “disadvantage” an offender, which, as we maintained in Anderson, is “in manifest accord with the purpose of [the prohibition] to protect the individual rights of life and liberty against hostile retrospective legislation.” 310 Md. at 224, 528 A.2d at 908 (quoting Kring, 107 U.S. at 229, 2 S.Ct. at 450, 27 L.Ed. at 509.) By doing so, we would, pursuant to Maryland law, continue to afford additional protections against ex post facto laws. Or, this Court can diverge from the standard we also acknowledged and confirmed in Khalifa, and Demby, and instead follow the Supreme Court’s analysis of the parallel federal protection applied in Smith, thereby narrowing the scope of Article 17’s protections.¹⁵

As we have noted:

Our institutional devotion to stare decisis is not absolute, but we nonetheless remain deeply respectful of the doctrine. Adherence to stare decisis is our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Only a fundamental change in factual or legal circumstances will justify departing from this principle.

Houghton v. Forrest, 412 Md. 578, 586-87, 989 A.2d 223, 228 (2010) (citations and quotations omitted). The State has failed to persuade us that we should overrule Anderson and its progeny, and limit the protections provided by Article 17 to only those provided by the federal Constitution.¹⁶ Rather, with today’s holding we reaffirm that Article 17 prohibits, under the ex post facto prohibition, “any law passed after the commission of an offense which ... in relation to that offense, or its consequences, alters the situation of a party to his [or her] disadvantage.” Gluckstern, 319 Md. at 664, 574 A.2d at 913 (quoting Anderson, 310 Md. at 224, 528 A.2d at 908) (further quotations omitted).

B. Requiring Petitioner to register violates Article 17 of the Maryland Declaration of Rights.

In the present case, the Maryland sex offender registration statute is applied retroactively to Petitioner. Only the retroactive application of laws will implicate Article 17’s protections. See Demby, 390 Md. at 593 n. 10, 890 A.2d at 318 n. 10 (emphasis and quotation omitted) (“To prevail in an ex post facto claim, [claimants] must first show that the law that they are challenging applies retroactively to conduct that was completed before the enactment of the law in question.... ”). As noted above, Petitioner’s duty to register is imposed as a result of his conviction for a sex offense committed during the 1983-84 school year. The Maryland sex offender registration statute was passed in 1995. And, Petitioner was not required to register until sex offender registration was retroactively applied to him in 2009.

As we have determined that the sex offender registration statute has been applied retroactively to Petitioner, we next conclude that imposing registration upon Petitioner changes the consequences of Petitioner’s crime to his disadvantage.

Article 17’s prohibition is not implicated in purely civil matters. See Spielman v. State, 298 Md. 602, 609, 471 A.2d 730, 734 (1984) (quoting Braverman v. Bar Ass’n of Baltimore, 209 Md. 328, 348, 121 A.2d 473, 483 (1956)) (citations omitted) (“[I]n Maryland, ‘the prohibition of ex post facto laws applies only to criminal cases. There is no clause in the Maryland Constitution prohibiting retrospective laws in civil cases.’ ”). The State argues that the Maryland sex offender registration statute “has the non-punitive purpose of protecting children and the public from recidivist sex offenders.” As we have previously noted, however, protection of the public is also a reason for incarcerating an offender. Anderson, 310 Md. at 228, 528 A.2d at 910. And, as we stated in Anderson, “the fact that a particular proceeding or matter is labeled ‘civil’ rather than ‘criminal’ does not necessarily remove it from the ambit of the ex post facto prohibition.” 310 Md. at 225, 528 A.2d at 908 (citation omitted). We reaffirm that Article 17’s “prohibition extends broadly to any law passed after the commission of an offense which ... in relation to that offense, or its consequences, alters the situation of a party to his disadvantage.” Gluckstern, 319 Md. at 664, 574 A.2d at 913 (emphasis in original) (quoting Anderson, 310 Md. at 224, 528 A.2d at 908) (further quotations omitted).

We begin by observing that Petitioner is required to register as a direct consequence of his commission of a sex offense and subsequent conviction for that offense. But for the fact that Petitioner committed a child sex crime and was subsequently convicted for that offense, he would not be labeled a Tier III sex offender and he would not be required to register. See C.P. §§ 11—701(q)(1)(ii); 11-704(a)(3) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Thus, imposing registration alters the consequences for a prior crime and implicates the ex post facto prohibition. See Anderson, 310 Md. at 224, 230, 528 A.2d at 908, 911 (citations omitted) (noting that commitment to a state mental institution “is a direct consequence of adjudications at [Mr. Anderson’s] criminal trial that he was guilty of committing a crime but insane at the time of the crime[,]” and concluding that “[considering the nature of ... confinement [in the mental hospital] under Maryland law, and particularly the fact that it represents the disposition portion of an adverse judgment in a criminal case ... we believe that the confinement does implicate the ex post facto prohibition.” (Emphasis added)).

In Anderson, we noted that “not every law passed after the commission of an offense, which changes the consequences of that offense, is barred by the ex post facto prohibition.” 310 Md. at 226, 528 A.2d at 909 (citation omitted). As the disadvantage standard has been applied in our cases, Article 17 prohibits the retroactive application of laws that have the effect on an offender that is the equivalent of imposing a new criminal sanction or punishment.¹⁷ In both Gluckstern and Demby, we concluded that the retroactive applications of changes in the law that likely had the practical effect of keeping persons incarcerated or confined by the State for a longer period of time violated the prohibitions against ex post facto laws. See Demby, 390 Md. at 614-15, 616-18, 890 A.2d at 330-31, 331-33; Gluckstern, 319 Md. at 644, 669, 574 A.2d at 902-03, 915. In the present case, the application of the sex offender registration statute to Petitioner in 2009 is the equivalent of imposing a new criminal sanction for Petitioner’s prior commission of a sex crime in the 1980s. Thus, the retroactive application of the sex offender registration statute to Petitioner violates Article 17.

First, requiring Petitioner to register has essentially the same effect on his life as placing him on probation. It is well-settled in this State that probation is a form of a criminal sanction. See Corbin v. State, 428 Md. 488, 502, 52 A.3d 946, 954 (2012) (quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001)) (“Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.”). Because the sex offender registration statute has a highly similar effect on Petitioner’s life as being on probation, applying the statute to Petitioner effectively imposes on him an additional criminal sanction.

Petitioner testified that under threat of “arrest[ ] and incarceration]” he was required to register in 2009. See C.P. § 11-704 (2001, 2008 Repl.Vol., 2009 Cum.Supp.); C.P. § 11-721 (2001, 2008 Repl.Vol.). Petitioner currently must report in person to law enforcement every three months, give notice to law enforcement of his address and any changes of address, and notify law enforcement before being away from his home for more than seven days. See C.P. §§ 11-705; 11-706, 11-707 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Furthermore, he must disclose to the State a significant amount of information, some of which is highly personal, including: his employment address; information about his conviction; his social security number; his email address and computer log-in names; information about vehicles he often uses, including those not owned by him; his finger prints and palm prints; all “identifying factors, including a physical description,” and an updated digital image of himself. See C.P. §§ 11-706, 11-707 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Additionally, other than to vote, Petitioner is prohibited from entering onto real property that is used as a school or a family child care center licensed under Title 5, Subtitle 5 of the Family Law Article, without first obtaining permission. C.P. § 11-722 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). If Petitioner fails to comply with these requirements, he faces terms of imprisonment, depending on the violation, of up to three or five years. See C.P. §§ 11-721, 11-722(d) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).

These restrictions and obligations have the same practical effect as placing Petitioner on probation or parole.¹⁸ See Doe v. State, 189 P.3d 999, 1012 (Alaska 2008); Wallace, 905 N.E.2d at 380-81. As a result of Petitioner’s conviction; he was required to register with the State, and he must now regularly report in person to the State and abide by conditions established by the State or he faces re-incarceration. This is the same circumstance a person faces when on probation or parole; as the result of a criminal conviction, he or she must report to the State and must abide by conditions and restrictions not imposed upon the ordinary citizen, or face incarceration. See Bryant v. Social Services, 387 Md. 30, 37, 874 A.2d 457, 46] (2005) (noting that as a condition of probation the petitioner was required to report to his probation officer); Patuxent v. Hancock, 329 Md. 556, 566 n. 8, 575, 620 A.2d 917, 922 n. 8, 926 (1993) (stating that as a condition of Mr. Hancock’s parole he was required to “attend weekly supervision as directed,” and that, in general, as conditions of parole, offenders face restrictions “not affecting the ordinary citizen or in which the ordinary citizen is entirely free to act[,]” such as “prohibiting associations, and regulating ... interstate travel ... and the frequenting of certain places”); see also State v. Raines, 383 Md. 1, 51, 857 A.2d 19, 49 (2004) (Wilner, J. concurring) (“[W]hile on probation or parole[,]” a person “may be required to submit to ... intrusive monitoring.”); Benedict v. State, 377 Md. 1, 8, 831 A.2d 1060, 1064 (2003) (noting that when an offender is on probation, if he or she violates the probation, the court may revoke probation and order the offender returned to prison); Frost, 336 Md. at ]39, 647 A.2d at 113 (citation omitted) (“parolees who violate the conditions of their release are subject to re-incarceration”).

When Petitioner was sentenced in 2006 for his sex crime, the trial judge imposed a sentence of ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration. Pursuant to the current Maryland sex offender registration statute, however, Petitioner must register for life. See C.P. § 11-707(a)(4) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). There is no evidence in the record that Petitioner has been convicted of any crimes since 1984. When the State imposed registration upon him in 2009, however, it had an effect that was the equivalent of placing Petitioner on probation for life as a result of his sex offense. Thus, although the statute may be labeled “civil” or “regulatory,” it effectively imposes upon Petitioner an additional criminal sanction for a crime committed in the 1980s.

Moreover, the dissemination of Petitioner’s information pursuant to the sex offender registration statute, is tantamount to the historical punishment of shaming. When the Alaska and Indiana Supreme Courts concluded that the retroactive application of their respective sex offender registration statutes violated their state constitutions’ prohibition against ex post facto laws, the two courts both determined that public dissemination of information about registrants “at least resembles the punishment of shaming[.]” See Doe, 189 P.3d at 1012 (footnotes omitted); Wallace, 905 N.E.2d at 380 (citations and quotations omitted). We conclude that the Maryland sex offender registration statute’s dissemination provisions have the same effect.

In Young v. State, 370 Md. 686, 806 A.2d 233 (2002), we examined an earlier version of the Maryland sex offender registration statute in the context of due process rights.¹⁹ Notwithstanding our conclusion in Young that the sex offender registration statute, as a whole, was not so punitive in effect to exceed its nonpunitive purpose, the majority, in that case, conceded that the dissemination of a registrant’s information, including some private information, imposes “affirmative disabilities” on registrants because the dissemination has the effect of “labelling a registrant] as a sexual offender within the community [which] can be highly stigmatizing and can carry the potential for social ostracism.” 370 Md. at 713, 806 A.2d at 249. The majority further expressed concerns in Young that “the newly initiated Internet notification [that was beginning to be used in Maryland would] threaten!] widespread disclosure of highly personal data and may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment.” 370 Md. at 718 n. 13, 806 A.2d at 252 n. 13. Examining the sex offender registration statute now and in the context of the ex post facto prohibition, we conclude, as the Court in Young predicted, that the dissemination of information about registrants imposes many negative consequences. The result is that the dissemination of information about registrants, like Petitioner, is the equivalent of shaming them, and is, therefore, punitive for ex post facto purposes.²⁰

Justice Ginsburg noted in her dissent in Smith, the “public notification [requirement], which permits placement of the registrant’s face on a webpage under the label ‘Registered Sex Offender,’ calls to mind shaming punishments once used to mark an offender as someone to be shunned.” 538 U.S. at 116, 123 S.Ct. at 1159, 155 L.Ed.2d at 191-92 (Ginsburg, J., dissenting) (citations omitted). On the Maryland Sex Offender Registry Website, a color picture of a registrant is included on the Registry and appears when the icon over the registrant’s home is selected on the searchable map. See Md. Dep’t of Public Safety and Corr. Servs., Sex Offender Registry: SOR Search, http://www.dpscs.state.md.us/sorSearch/ (last visited Feb. 13, 2013); Md. Dep’t of Public Safety and Corr. Servs., Sex Offender Registry Mapping, http://sorm.towson.edu (last visited Feb. 13, 2013).

Amicus highlighted in its brief to this Court the harms caused by dissemination that render it the equivalent of the punishment of shaming. In one of the affidavits attached to Amicus’s brief, the affiant attests that he has had significant problems finding housing after his lease was terminated early and the property management company indicated that “being a registered sex offender was a ‘non-curable violation of the lease agreement])]’ ” In one of our past cases, as a result of registration, one registrant was evicted from his home and rendered homeless because of the notice published to the community. See Twine v. State, 395 Md. 539, 544-45, 910 A.2d 1132, 1135 (2006). While concluding that the dissemination of information pursuant to the Alaskan sex offender registration statute, in Smith, was not akin to shaming, the United States Supreme Court stated that one of the hallmarks of shaming was that it often included the expulsion of the offender from the community. 538 U.S. at 98, 123 S.Ct. at 1150, 155 L.Ed.2d at 180 (citations omitted). For those registrants removed from their rental homes or rendered homeless by the dissemination of information, the effect, in our view, is quite similar to expulsion from the community.

Additionally, other harms caused by dissemination render its effects tantamount to the traditional punishment of shaming. A study by the United States Department of Justice indicated that 77% of registrants in another state surveyed reported “threats/harassment[.]” Richard G. Zevitz & Mary Ann Farkas, United States Department of Justice, National Institute of Justice, Sex Offender Community Notification,: Assessing the Impact in Wisconsin, at 10 (Dec.2000), available at https://www.ncjrs.gov/pdffilesl/nij/179992.pdf. And, the affidavit provided by the Executive Director of Families Advocating Intelligent Registries, a non-profit Maryland organization, indicates that the Director has received reports of children of registrants being bullied because of their parent’s status on the Registry. Another affiant stated that through her job and membership in family support groups, she is “aware ... that even those employers that do hire felons often have a policy that automatically excludes persons on the sex offender registry in order to avoid publication of the employer’s name/address on the registry and the accompanying negative publicity.”

Finally, when analyzing whether the retroactive application of its own sex offender registration statute violated the ex post facto prohibition in the Alaskan Constitution, the Alaska Supreme Court noted that there have been “published reports that offenders are sometimes subjected to protests and group actions designed to force them out of their jobs and homes,” such that “the practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment,” and in other states “there have been reports of incidents of suicide by and vigilantism against offenders on state registries.” Doe v. State, 189 P.3d at 1010-11 (footnotes and quotations omitted).

In the present case, the statute places a registrant’s information, including his or her address, on the Internet for anyone with Internet access to see, and allows members of the public, who live in the county where a registrant will five, work, or attend school, by request, to receive email notifications of the registrant’s release from incarceration and “the registration information of the [registrant].” See C.P. § 11-717 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Examining dissemination in the context of whether it violates the prohibition against ex post facto laws, we, therefore, conclude that the dissemination provisions of the Maryland sex offender registration statute have an effect upon Petitioner that is tantamount to shaming.

When Petitioner committed his sex crime during the 1983-84 school year he did not face registration under the statute as a consequence for his crime. Registration was imposed, over twenty years later in 2009, under the sex offender registration statute as a direct consequence of Petitioner’s commission and conviction for his sex crime. The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime. Therefore, we conclude that the imposition of the registration requirement upon Petitioner, as the result of amendments passed 25 years after Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AND TO DIRECT THE CIRCUIT COURT TO ENTER A DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION. RESPONDENT TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.

1 . In addition to initial registration, this law imposes a number of obligations, restrictions, and consequences upon its registrants, including re-registering periodically with the State, disclosing personal information to the State, having personal information disseminated to the public, and requiring permission before going onto school property. See C.P. §§ 11-706, 11-707, 11-717, 11-722 (2001, 2008 Repl.Vol., 2012 Cum.Supp.).

2 . Different registrants must register with different officials depending on the registrant’s status. The appropriate "supervising authority” is listed under C.P. § 11-701(n) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). For example, a registrant who is in custody in a facility operated by the Department of Health and Mental Hygiene must register with the Secretary of Health and Mental Hygiene or a registrant who is under the supervision of the Division of Parole and Probation must register with the Director of Parole and Probation, or a registrant who is "not under the supervision, custody, or control of another supervising authority” must register with "the local law enforcement unit where the [registrant] is a resident....” See C.P. § 11-701(n) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).

3 . John Doe is a pseudonym used after Petitioner successfully moved to have his name stricken from the record.

4 . The crime of child sexual abuse, since 1984, has been re-codified as Md.Code. Art. 27, § 35C, and then again as Section 3-601 of the Criminal Law Article, and then finally as Section 3-602 of the Criminal Law Article, where it is currently codified. See 1994 Md. Laws, Chap. 712; 2002 Md. Laws, Chaps. 26 and 273.

5 . Although Petitioner named the Department of Public Safety and Correctional Services, an agency of the State, the defendant in this action, the State of Maryland is actually defending the lawsuit. Therefore, we shall refer to the State as Respondent in this opinion.

6 . We note that the trial judge did not have discretion to deny Petitioner declaratory relief. Technically, to comply with the Declaratory Judgments Act, the court was required to declare the parties’ rights in light of the issues raised. See Jennings v. Government Employees Ins. Co., 302 Md. 352, 355-56, 488 A.2d 166, 167-68 (1985).

7 . Consistent with our prior analysis of the ex post facto prohibition, we conclude that requiring Petitioner to register violates the prohibition against ex post facto laws under Article 17. Therefore, we need not, and do not, reach the question whether the language contained in Article 17, "nor any retrospective oath or restriction be imposed, or required!,]” would give rise to a separate ground for finding the application of the sex offender registration statute unconstitutional under Article 17.

8 . During the hearing on the “Complaint for Declaratory Judgment,” counsel for the State, Mr. Nathan, argued that the State can change a law to apply it retroactively. In response, the trial judge noted that "this [is] a question whether [] the requirement of the registration is punishment or a collateral consequence,” alluding to a potential ex post facto issue. Mr. Nathan addressed the potential ex post facto issue arguing that in Young v. State, 370 Md. 686, 806 A.2d 233 (2002), this Court determined that sex offender registration was not a punishment. Mr. Nathan went on to argue that in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court held that the Alaskan sex offender registration statute did not violate the federal ex post facto clause. Then, later in the hearing, he argued:

There are no constitutional violations [from imposing registration upon Petitioner]. As I said, the General Assembly is well within its rights to.... to enact statutes requiring retroactive registration. The appellate courts in this State have upheld that. There is no ex post facto implication.

9 . In the time since the Maryland sex offender registration statute went into effect in 1995, there have been a number of amendments to the statute. See e.g. Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 27, § 792; Md.Code (1957, 1996 Repl.Vol., 1998 Cum.Supp.), Art. 27, § 792; Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27, § 792; C.P. § 11-701 et seq. (2001). As this opinion addresses whether the 2001, 2009, and 2010 amendments to the Maryland sex offender registration statute, applied retroactively to a child sex offender, violates the prohibition against ex post facto laws, we focus on those changes.

10 . "Article I, Section 10 of the Constitution of the United States provides in part that ‘no State shall ... pass any ... ex post facto Law....'” Khalifa v. State, 382 Md. 400, 424, 855 A.2d 1175, 1189 (2004).

11 . In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court held:

If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [the United States Supreme Court], of course, will not undertake to review the decision.

463 U.S. at 1041, 103 S.Ct. at 3476, 77 L.Ed.2d at 1214. Our judgment is based exclusively upon our interpretation of the protections afforded by Article 17 of Maryland's Declaration of Rights. See Frankel v. Board of Regents, 361 Md. 298, 313-14 n. 3, 761 A.2d 324, 332 n. 3 (2000) (citations omitted); see also Marshall v. State, 415 Md. 248, 260, 999 A.2d 1029, 1035-36 (2010) (citations omitted).

12 . The highest courts in Alaska and Indiana have concluded that a retroactive application of their state's own sex offender registration statute violates their respective state constitution’s prohibition against ex post facto laws. See Doe v. State, 189 P.3d 999 (Alaska 2008); Wallace v. State, 905 N.E.2d 371 (Ind.2009). Additionally, the highest court in Ohio determined that the retroactive application of changes to Ohio's sex offender registration statute violates the Ohio constitution's prohibition against “retroactive laws.” See State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011).

13 . In his article, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977), United States Supreme Court Justice William J. Brennan Jr. noted that "state courts no less than federal are and ought to be the guardians of our liberties[,]” and counseled that "[S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the [United States] Supreme Court's interpretation of federal law.” 90 Harv. L.Rev. at 491. Justice Brennan appealed to State courts to remember:

[T]he decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by the counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them.

90 Harv. L.Rev. 502 (footnote omitted).

14 . Those four categories are: (1) ”[e]very law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action!';]” (2) "[e]very law that aggravates a crime, or makes it greater than it was, when committedf;]” (3) ”[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed[;'j” and (4) ”[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798) (emphasis in original).

15 . The United States Supreme Court decided Smith v. Doe, supra, in 2003. In 2004, we decided State v. Raines, 383 Md. 1, 857 A.2d 19 (2004). The dissenting opinion states that in State v. Raines, we "appl[ied] the intent-effects test of Smith v. Doe [to] conclud[e] that Maryland's DNA Collection Act is not an ex post facto law[.]” See Doe v. Dep’t of Public Safety and Corr. Serv., 430 Md. 535, 585, 62 A.3d 123, 153 (2013). To be clear, however, the initial opinion in Raines, following the standard set forth in Smith, is an opinion of only two judges of this Court. There were also two concurring opinions in Raines, however, those judges concurred only in the judgment and did not concur in the initial opinion. Moreover, when two members of this Court followed the Smith standard in Raines, they addressed the Article 17 protection together with the federal ex post facto protection. 383 Md. at 26, 857 A.2d at 34. In the present case, we address Article 17’s prohibition against ex post facto laws independently of the federal prohibition. In doing so, we note that we have never abandoned the analysis applied in Anderson and Gluckstem, that Article 17's prohibition “extends broadly to any law passed after the commission of an offense which ... in relation to that offense, or its consequences, alters the situation of a party to his [or her] disadvantage^]” Anderson, 310 Md. at 224, 528 A.2d at 908 (emphasis in original) (citations omitted).

16 . Applying this Court's long-standing approach rather than following the United States Supreme Court’s approach to the federal Constitution’s prohibition against ex post facto laws, recognizes that Article 17, previously codified as Article 15, is an independent protection provided by the Maryland Constitution; an independent provision for over 230 years. See Dan Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L.Rev. 637, 656 (1998) (noting that the protection against ex post facto laws has been in the Maryland Declaration of Rights since 1776); 1 Bernard Schwartz, the Bill of Rights: A Documentary History, at 281 (N.Y.1971) (same). To ensure the independent protection intended by Article 17, we elect not to follow the United States Supreme Court or narrow the scope of the prohibition against ex post facto laws.

17 . This standard is very similar to the standard traditionally used by the Supreme Court, that “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” violates the federal prohibition on ex post facto laws. Calder, 3 Dall. at 390, 1 L.Ed. at 650 (emphasis omitted). Under the Supreme Court’s approach in Smith, however, when determining if the application of a law inflicts a greater punishment, the fact that “in its necessary operation, the regulatory scheme [imposed by the sex offender statute]: has been regarded in our history and traditions as a punishment[,]” 538 U.S. at 97, 123 S.Ct. at 1149, 155 L.Ed.2d at 180, is only one factor in the seven-factor Mendoza test. Under Article 17, if the application of a law has an effect that is tantamount to imposing an additional criminal sanction, its retroactive application violates Article 17 of the Maryland Declaration of Rights.

18 . As we noted in Patuxent v. Hancock, 329 Md. 556, 620 A.2d 917 (1993), while probation is ordered by a judge before incarceration begins, and parole is granted while a party is incarcerated, both have the same consequence, that a criminal offender is allowed to spend a portion of his or her sentence released in the community if he or she adheres to prescribed conditions. 329 Md. at 574, 620 A.2d at 926 (citations omitted). As noted above, sex offender registration, which requires Petitioner to follow prescribed conditions or face incarceration, is similar to both probation and parole.

19 . The State’s argument that we should conclude that the sex offender registration statute is a civil law and thus its retroactive application does not offend the prohibitions against ex post facto laws relies on our decision in Young v. State, 370 Md. 686, 806 A.2d 233 (2002), that Maryland's sex offender registration statute did "not constitute punishment in the constitutional sense, as defined by the United States Supreme Court....” 370 Md. at 690, 806 A.2d at 235. In that case, however, we addressed whether the statute violated the petitioner's due process rights "in light of [the United States Supreme Court case] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).” 370 Md. at 690, 806 A.2d at 235. Because in the present case we address the Petitioner's assertion in light of Maryland’s prohibition against ex post facto laws provided by Article 17, our decision in Young, and its conclusion that the statute was not a "punishment ... as defined by the United States Supreme Court,” is not directly applicable to the present case where we examine the law through a different lens.

20 . The State relies on the Smith Court’s conclusion that disabilities faced by registrants as a result of the public dissemination of their information is actually a result of publically available conviction records, not the dissemination of registrants’ information. See Smith, 538 U.S. at 98-99, 123 S.Ct. at 1150, 155 L.Ed.2d at 181. We disagree. First, there is a significant difference between the information that is available to someone who is specifically searching for information about a particular person and a list of all registrants available to any person with access to the Internet. See Doe v. State, 189 P.3d 999, 1011 (Alaska 2008). The increased accessibility of information about an offender to the public is the intended effect of creating a publically disseminated registry. See Smith, 538 U.S. at 99, 123 S.Ct. at 1150, 155 L.Ed.2d at 181 (noting that ‘'[widespread public access [to information about offenders] is necessary for the efficacy of the [sex offender registration] scheme”). Furthermore, while many of the disabilities, such as being denied a home or a job based on a background check, are as likely to result from the registrant’s publically available conviction, some of the disabilities, such as registrants and their families being subject to protests and harassment, have been shown to result from sex offender registration and dissemination. See Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir.1997) (noting that the parties in that case stipulated to "numerous instances in which sex offenders have suffered harm in the aftermath of notification — ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson.”); Richard Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search For Fundamental Fairness, 41 Akron L.Rev. 981, 1039 (2008) ("The community notification and public dissemination provisions, which publicize where an offender lives and information about his crime, have led to widespread labeling, ostracizing, and attacks on the ex-offender.”); Wayne A. Logan, Criminal Law: Liberty Interests in the Preventative State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J.Crim. L. & Criminology 1167, 1176-77 n.45 (1999) (noting that as a result of dissemination about sex offenders, among other things, members of communities have staged rallies to protest the offender's presence, and in one instance a man had a brick thrown through his car window).