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Call to Action : OH Legislature Going at it Again – Part 2

February 4, 2011 Comments off

It appears that a similar bill was introduced in the Ohio Senate in Nov. 2010. Senate Bill 316 was proposed by Senators: Seitz, Miller, D. Wagoner, Grendell, Turner, and Smith.

Senate Bill 316 is “to clarify for an offender or delinquent child who had SORN Law duties under the SORN Law in effect prior to January 1, 2008, the offender’s or child’s duties under the current SORN Law and the duration of those duties and to declare an emergency.”

Those who are concerned about this attempt to retroactively re-capture (onto the sex offender registries) all offenders whose crimes pre-dated the 2008 law change, should immediately contact these Senators to voice your opposition.

SB 316 Sponsors:

Bill Seitz (R)
Phone: (614) 466-8068
Email: SD08@senate.state.oh.us

Mark Wagoner (R)
Phone: (614) 466-8060
Email: SD02@senate.state.oh.us

Tim Grendell (R)
Phone: (614) 644-7718
Email: SD18@senate.state.oh.us

Nina Turner (D)
Phone: (614) 466-4583
Email: SD25@maild.sen.state.oh.us

Shirley A. Smith (D)
Phone: (614) 466-4857
Email: SD21@maild.sen.state.oh.us

The intent of SB 316 and HB 77 is to:

“Create a list of all the sex offenders who were reclassified via the 2010 Bodyke ruling, notifying them all by mail, and forcing them into court one at a time to have a judge issue a new Adam Walsh Act sentencing order. It would re-reclassify all of these individuals into the AWA tier scheme, adding thousands to the registry, many for life.”

Both of these bills will be debated within the respective House & Senate Criminal Justice Committees. Readers should contact the members of this committee in order to voice your opposition to these bills.

Senate Criminal Justice Committee (re: SB 316)

http://www.ohiosenate.gov/committees/standing/detail/judiciary-criminal-justice.html



Tim Grendell (R)
Chair

Larry Obhof (R)
Vice Chair

Nina Turner (D)
Ranking Minority Member

Eric Kearney (D)

Frank LaRose (R)

Peggy Lehner (R)

Scott Oelslager (R)

Joe Schiavoni (D)

Mark Wagoner (R)

House Criminal Justice Committee ( re: HB77)

http://www.house.state.oh.us/index.php?option=com_displaycommittees&task=2&type=Regular&committeeId=98


Criminal Justice
Name Party Position Name Party Position
Lynn Slaby R Chair Roland Winburn D Ranking Minority Member
Bill Hayes R Vice Chair Nancy J. Garland D Member
Louis W. Blessing, Jr. R Member Connie Pillich D Member
Danny R. Bubp R Member W. Carlton Weddington D Member
William P. Coley, II R Member Sandra Williams D Member
Joseph W. Uecker R Member


Ron Young R Member

Call to Action : OH Legislature Going at it Again

February 3, 2011 Comments off

CALL TO ACTION:

Ohio Legislators are going at it again. Just six months after having been soundly defeated in the June 2010 Bodyke vs. Ohio Supreme Court ruling, seven Ohio House Representatives have proposed new legislation to retroactively revise Ohio’s sex offender laws to re-capture all offenders who committed crimes before 2008 onto the rolls of the sex offender registry.

Those concerned about this proposed legislation must contact the seven Representatives immediately to express their opposition to this bill. If we are forced to do so, ConstitutionalFights will return to the battlefield to help defeat this latest attempt by the Ohio Legislature to violate the constitutional rights of 30,000 Ohio citizens.

The newly proposed bill, House Bill 77 of the 129th General Assembly would amend and repeal parts of the existing Ohio sex offender statutes to:

“clarify that SORN Law definitions of sexually oriented offenses, child-victim oriented offenses, tier classifications, public registry-qualified juvenile offender registrants, and related terms include the specified offenses regardless of when they were committed and to provide for court reclassification of offenders and delinquent children who committed their sexually oriented offense or child-victim oriented offense prior to January 1, 2008, and had SORN Law duties based on that offense into one of the tier classifications of the current SORN Law.

View proposed HB 77.

Bill Sponsors:

REPRESENTATIVES:
Hackett Garland Blessing Combs Grossman Hottinger Patmon

Bob D. Hackett, Representative
State Representative (R)
District: 84
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
11th Floor
Columbus, OH 43215-6111
Phone: (614) 466-1470
Fax: (614) 719-6984
Email: district84@ohr.state.oh.us

Nancy J. Garland, Representative
State Representative (D)
District: 20
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
10th Floor
Columbus, OH 43215-6111
Phone: (614) 644-6002
Fax: (614) 719-6959
Email: district20@ohr.state.oh.us

Louis W. Blessing, Jr., Speaker Pro Tempore
State Representative (R)
District: 29
Term: 4th
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
14th Floor
Columbus, OH 43215-6111
Phone: (614) 466-9091
Fax: (614) 719-3583
Email: district29@ohr.state.oh.us

Courtney Combs, Representative
State Representative (R)
District: 54
Term: 5th (includes appointed and elected terms)
Term Limit: Not eligible to run for another two-year term
Address:
77 S. High St
13th Floor
Columbus, OH 43215-6111
Phone: (614) 644-6721
Fax: (614) 719-6954
Email: district54@ohr.state.oh.us

Cheryl L. Grossman, Assistant Majority Whip
State Representative (R)
District: 23
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
14th Floor
Columbus, OH 43215-6111
Phone: (614) 466-9690
Fax: (614) 719-6962
Email: district23@ohr.state.oh.us

Jay Hottinger, Representative
State Representative (R)
District: 71
Term: 3rd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
12th Floor
Columbus, OH 43215-6111
Phone: (614) 466-1482
Fax: (614) 719-3971
Email: district71@ohr.state.oh.us

Bill Patmon, Representative
State Representative (D)
District: 10
Term: 1st
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
11th Floor
Columbus, OH 43215-6111
Phone: (614) 466-7954
Fax: (614) 719-0010
Email: district10@ohr.state.oh.us

We seek legal professionals who are willing to engage in a lawsuit against the State of Ohio should this legislation be put into law. We also still seek legal professionals who are willing to engage in a lawsuit against the State of Ohio regarding the Bodyke Supreme Court ruling of June 2010 for damages of those 30,000 former offenders who were maintained on the sex offender registry 2-1/2 years after they should legally have been removed.

We must collectively hit these legislators squarely in the “front teeth” this time to assure that we do not experience what we experienced between 2008 and 2010.

Elena Kagan: Supreme Court Nominee Raises Questions

May 10, 2010 Comments off

Elena Kagan, United States Solicitor General was nominated today to the United State Supreme Court to fill the vacancy created by the retirement of Justice John Paul Stevens.

Here,we examine just two aspects of her professional views related to sex offender laws.

1. The Marshall Memo: In 1993, Kagan wrote a memo praising former Supreme Court Justice Thurgood Marshall, for whom she had clerked and whom had just died. At the time, Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”

If you truly believe this, Ms. Kagan, then surely the societal and legislative attacks on registered sex offenders stands as the penultimate example of a class of citizens who are currently “despised and disadvantaged” in this nation.

2. Solicitor General Elena Kagan, the administration’s top courtroom lawyer, urged the justices to uphold a 2006 federal law providing for the continued detention of sexually dangerous federal inmates who have completed their prison terms. In United States vs. Comstock, argued before the U.S. Supreme Court in January 2010, she acted on behalf of the U.S. government to argue that the federal government has the power to imprison citizens after they have completed their prison terms. Kagan argued in favor of civil commitment of “sexually dangerous” people after they complete their federal prison terms.

This should raise a large red flag to anyone favoring her appointment to SCOTUS. If she favors indefinite confinement of sex offenders by the government well beyond their prison terms, she is not qualified to be a judge who has the obligation to uphold, defend and protect our Constitutional rights.

Sources:
reuters.com: U.S. justices question sex offender confinement law.
abajournal.com: Sex-Offender Case Is Test of Necessary and Proper Clause.
stlbeacon.org: Sex offenders: Lock ‘em up and throw away the key?

Elena Kagan, arguing for the government, compared the indefinite detention of sex offenders to quarantining those infected with “some very contagious form of drug resistant tuberculosis.” In the case of a TB infection, Solicitor General Kagan said, we’d say the government has the power to hold the person for the safety of society. Justice Stevens picked up on the analogy and pressed the attorney on the other side: Doesn’t the federal government have the power to quarantine?

The idea that sex offenders are not like ordinary criminals but somehow sick or diseased and have to be segregated from the general population is a powerful one and may operate as a subterranean motivation for much legislation in the area. But the analogy also discloses an ambivalence about how we think about sex offenders. Are they like ordinary criminals (bank robbers, reckless drivers, etc.) who should be punished and then released? Or are sex offenders more like people who are ill, who need treatment and care — perhaps indefinite treatment and care — rather than punishment?

OH: Senator Wants to Go Around Supreme Court Ruling

April 11, 2010 Comments off

ohiosenatedems.blogspot.com: Senator Smith Calls for Immediate Action to Close Sex Offender Loophole.

First of all, this isn’t a loophole. It is a Supreme Court constitutional ruling. Secondly, the media misreported this story horrendously last month when the Ohio Supreme Court handed down this ruling.

See: OH Supreme Court Invalidates Sex Offender Notification and Ohio Senator Already Planning to Get Around Supreme Court Ruling

Please take immediate action by contacting the office of Senator Smith of Ohio who wants to amend the Ohio Supreme Court decision that Tier Level III offenders may apply to have their names removed from public notification.

Senator Shirley Smith (D-Cleveland)
Senate Building

1 Capitol Square, 2nd Floor
Columbus, OH 43215
Phone: (614) 466-4857
Email: SD21@maild.sen.state.oh.us

Columbus – Senator Shirley Smith (D-Cleveland) issued an urgent call today for Senate hearings on legislation to close a loophole in Ohio’s sex offender registration and notification law. The Ohio Supreme Court ruled this week that trial judges have the authority to suspend community notification for Tier III sex offenders, the most serious classification for sex offenders under Ohio law. The ruling highlights the need for immediate action to pass Senate Bill 237, legislation introduced by Senator Smith in response to the murders on Imperial Avenue in Cleveland.

“The current law provides trial courts with too much discretion when determining whether to provide community-notification of a Tier III sex offender’s status,” said Senator Smith. “My bill will ensure that communities receive notice about dangerous sex offenders in their neighborhoods. We must close this loophole now to protect our citizens.”

Under provisions of Senate Bill 237, Judges would no longer have the authority to suspend community notification for Tier III sex offenders. Senator Smith’s legislation also requires sheriffs to check each Tier III sex offender’s files to verify that notification has been sent. If notification has not been sent, the bill mandates that sheriffs do so. The legislation also eliminates a section of the Revised Code that potentially excludes reclassified Tier III sex offenders from current notification law.

Seante Bill 237 : S. B. No. 237-Senator Smith, et al.

“To amend sections 2950.06, 2950.10, 2950.11, and 2950.13 of the Revised Code to apply SORN Law victim notification and community notification to specified offenders or delinquent children who verify their registered residence address and for whom such notifications previously have not been provided and to revise the criteria for subjecting offenders and delinquent children to SORN Law community notification.”

WI Statewide Sex Offender Residency Bill Public Hearing

March 10, 2010 Comments off

whbl.com: Statewide Sex Offender Residency Bill Gets Public Hearing

See prior post : WI Bill to Override Local Sex Offender Restrictions

Madison, WI- A public hearing will be held Thursday (March 11, 2010) on a bill to create statewide limits on where sex offenders can live. It would wipe out tough local ordinances with restrictions so tight, offenders are driven elsewhere. The bill would let the Corrections Department come up with statewide limits on keeping sex offenders away from schools and other places where kids congregate. But corrections’ officials have opposed some of the tougher local ordinances that exist now. They say it encourages sex offenders to go underground, and not register with the state as the law requires. The current restrictions have varied effects.

Readers in Madison Wisconsin should attend this meeting and come prepared with information to oppose these residency restriction laws.

Study: Many Sex Offenders are Kids

January 5, 2010 Comments off

USAToday.com : Study: Many sex offenders are kids themselves.

We posted this research earlier in December here:
Juveniles Who Commit Sex Offenses Against Minors
Trends in Arrests of Online Predators (related study)

More than a third of sex crimes against juveniles are committed by juveniles, according to new research commissioned by the Justice Department.

Juveniles are 36% of all sex offenders who victimize children. Seven out of eight are at least 12 years old, and 93% are boys, says the study by the Crimes Against Children Research Center at the University of New Hampshire.

The report comes as states toughen penalties for adult sex offenders and wrestle with how to handle juveniles.

“They are different from adult sex offenders,” says study co-author David Finkelhor. They are more likely than adults to commit sex offenses in groups, and their victims are younger and more likely to be male.

IN : Retroactive Registrations Unconstitutional

November 18, 2009 Comments off

theindychannel.com : Hundreds Of Sex Offenders Removed From Registry -
Court Ruling Calls Retroactive Registrations Unconstitutional.

(If you are registered in Indiana, you must follow this procedure to have your name removed):

Indianapolis – Hundreds of convicted sex offenders could have their names and pictures removed from county lists after a state law was ruled unconstitutional. In 1994, the Indiana Legislature created Zachary’s Law, or the sex offender registry. Three years later, the Legislature amended the law to require all persons convicted of sex offenses to register. But this September, the Indiana Supreme Court reaffirmed its own ruling that the law was unconstitutional because it required those convicted before the law was enacted to register.

On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News’ Jack Rinehart reported.

“We’re not going to remove anybody. We’re taking no enforcement action,” said Lt. Bob Hanna, who oversees the Sheriffs’ Sex and Violent Offender Registry. “As far as removing faces, names and addresses, we won’t do that without a court order.”

Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff’s department.

In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list.

Residents said they’ll find a way around the law change. “I think what you’ll see is groups or agencies that will pop up and track these individuals that will try to take themselves off the list,” said Bill Callahan of the Brookside Neighborhood Association. “There’s nothing to stop people from getting public information about a person and creating their own list.”

Is that a threat of vigilantism or harassment ? Perhaps someone should report this threat to the authorities.

Sex Offender Registry Couldn’t Stop Ohio Deaths

November 10, 2009 Comments off

newsnet5.com : Sex Offender Checks Quick; Deputies Can’t Enter Homes.
wytv.com : PERSPECTIVE: Registry couldn’t stop Ohio deaths.

Columbus, Ohio (AP) — One of Ohio’s foremost champions of tougher sexual predator laws conceded a certain futility to such efforts as body after body was removed last week from the Cleveland home of Anthony Sowell.
Republican U.S. Rep. Steve Austria, a former state Senator from the Dayton suburb of Beavercreek, repeatedly championed state laws that he and other supporters believed would make the state safer.

Yet Sowell, a compliant registered sex offender after doing prison time for attempted rape, is accused of murdering several unsuspecting women and stowing their bodies in a house and yard that reeked of rotting flesh. Remains of 11 people have been found.

Bills that Austria introduced and ushered through the state Legislature cracked down on Internet predators, created a tracking system for sex offenders within and outside the state’s borders, and established the country’s first substantially complete sex offender registration and notification systems under the federal Adam Walsh Act.

Austria acknowledged, though, that no law probably could have been written that would have avoided the “horrific and disturbing tragedy” that’s unfolding in Cleveland.

“While these bills play an important role in allowing us to keep track of sex offenders and requiring them to register, those who are going to commit these terrible acts unfortunately will find ways around any safeguards we create in the law,” he said.

According to a 2008 report by the Office of Sex Offender Management, a project of the U.S. Justice Department, “these laws have significant resource implications, yet to date very little research has been conducted to examine the extent to which these investments have yielded significant public safety returns.”
————————-

Much of the controversy centers on a Cuyahoga County sheriff’s deputy who checked on Anthony, a registered sex offender and suspect in the 11 slayings, in late September. NewsChannel5’s Duane Pohlman went along with another deputy checking other sex offenders to reveal a program that is limited by the law and overwhelming in numbers. Deputy Rodney Blanton knocks on a lot of doors. He is one of just two deputies in Cuyahoga County who check to see if sex offenders are where they’re supposed to be. With 3,600 sex offenders in the county, the routine home visits are quick, some lasting just 15 to 30 seconds. A little more than a month before the grisly discoveries on Imperial Avenue, another deputy conducted the same quick check on Sept. 22 at the home of Sowell. “He was there. ‘I live here.’ Good enough. So, it would have probably been a 30-second verification, just like you witnessed this morning,” said Detective Susan DeChant, of the Cuyahoga County Sheriff’s Department.

Since sex offender laws don’t allow the deputy to enter the home (That would, of course be an illegal and unconstitutional search) , the deputy didn’t report anything unusual. If he did, detective said they would have investigated.”Absolutely, there would have been a report done and there would have been more investigation on it,” said DeChant. But, with thousands of sex offenders, there’s no time to check anything other than an address, and the notion that the quick visit to Sowell’s home should have caught him in the act is simply not realistic, detectives say.“It’s not going to stop an offender from reoffending, if that’s what they’re going to do,” said DeChant.

Sex Offender Registry: Too Broad a List

November 10, 2009 Comments off

mlive.com (Michigan): Editorial: Sex Offender Registry: Too broad a list.

The Michigan Court of Appeals’ precedent-setting decision to remove a Muskegon man’s name from the state’s Public Sex Offender Registry was the right one. And we urge the state Legislature to follow up with a careful review of the sex registry and who should be on it.

Robert Lee Dipiazza was convicted in 2004 under the Holmes Youthful Trainee Act, which allows the dismissal of cases against young first offenders if they successfully complete probation. Youthful offenders’ court files also are suppressed to establish a clean record and give them a second chance. Dipiazza, who was convicted of having consensual sex with his underage girlfriend who is now his wife, followed all the rules. So, his court files were suppressed, but his name remained on the sex offender list.

The sex registry is on the Internet and any employer can check that list. Unfortunately for Dipiazza, because his court files had been suppressed, employers couldn’t check them out to confirm his story that he was not a pedophile or a rapist.

Dipiazza claimed in his court case that because his name is on the registry he has been unable to find work and actually lost two jobs because his employers discovered his name on the list.

“I think it’s a very important ruling,” Miriam Aukerman, who argued the case, told The Chronicle. “It’s kind of a wake-up call, because the registry has become so overbroad. … I think it’s a signal to the Legislature to really think about who needs to be on the registry and who doesn’t.”

Having his name and others like him on the list just makes it more difficult to keep track of the most dangerous offenders. To show how difficult following up on sex offenders can be, neighboring Ohio is dealing with the aftermath of the alleged murders of at least 11 women by a registered sex offender who regularly checked in with the sheriff’s department.

More than 44,700 names are on the Michigan Sex Offender Registry. About 16 percent were not in compliance with the registry law. That’s a lot of checking by parole officers and police.

Ohio V Ettenger – 11th Circuit Court of Appeals

November 10, 2009 Comments off

Update to: OH Court of Appeals Rules AWA Unconstitutional, July 23, 2009-

THE COURT OF APPEALS- ELEVENTH APPELLATE DISTRICT – LAKE COUNTY, OHIO
STATE OF OHIO- vs – JASON ETTENGER —- CASE NO. 2008-L-054 (Opinion in PDF format)
Appeal from the Court of Common Pleas, Case No. 08 MS 000039.
Judgment: Reversed and Remanded on July 13, 2009

For the following reasons, we reverse judgment of the Lake County Court of Common Pleas and remand the matter for proceedings consistent with this opinion.

Ex Post Facto Clause
The placement of Senate Bill 10, along with the text, demonstrates the General Assembly’s intent to transform classification and registration into a punitive scheme. Senate Bill 10 is placed within Title 29, Ohio’s Criminal Code. The specific classification and registration duties are directly related to the offense committed.
Further, failure to comply with registration, verification, or notification requirements subjects an individual to criminal prosecution and criminal penalties. R.C. 2950.99. Specifically, pursuant to R.C. 2950.99, failure to comply with provisions of R.C. Chapter 2950 is a felony.The following mandates by the legislature are also indicative of its intent for the new classification to be a portion of the offender’s sentence. First, R.C. 2929.19(B)(4)(a), which is codified within the Penalties and Sentencing Chapter, states: “[t]he court shall include in the offender’s sentence a statement that the offender is a tier III sex offender ***.” In addition, R.C. 2929.23(A), titled “Sentencing for sexually oriented offense or child-victim misdemeanor offense ***,” codified under the miscellaneous provision, states: “the judge shall include in the offender’s sentence a
statement that the offender is a tier III sex offender/child victim offender [and] shall comply with the requirements of section 2950.03 of the Revised Code ***.” R.C. 2929.23(B) states: “[i]f an offender is being sentenced for a sexually oriented offense or a child-victim oriented offense that is a misdemeanor ***, the judge shall include in the sentence a summary of the offender’s duties imposed under R.C. 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code and the duration of the duties.”

As defined by the Ohio Revised Code, “sentence” is “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.” R.C. 2929.01(E)(E). “Sanction” is defined in R.C. 2929.01(D)(D) as “any penalty imposed upon an offender who is convicted of or
pleads guilty to an offense, as punishment for the offense.”

Therefore, the placement of Senate Bill 10 in the criminal code, along with the plain language of the bill, evidences the intent of the General Assembly to transform classification and registration into a punitive scheme.

Not only does the public have unfettered access to an offender’s personal information but, under Senate Bill 10, an offender has a legal duty to provide more information than was required under former R.C. Chapter 2950.

“[I]f we were to adjudicate all sexual offenders as sexual predators, we run the risk of ‘being flooded with a number of persons who may or may not deserve to be classified as high-risk individuals, with the consequence of diluting both the purpose behind and the credibility of the law. This result could be tragic for many.’ State v. Thompson (Apr. 1, 1999), Cuyahoga App. No. 73492, unreported, 1998 WL 1032183. Moreover, the legislature would never have provided for a hearing if it intended for one conviction to be sufficient for an offender to be labeled a ‘sexual predator.’”

Also of significance, the Eppinger Court noted that “[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior.” Id. at 162.

In addition, former R.C. Chapter 2950 permitted trial courts to first conduct a hearing and consider numerous factors before classifying an individual as a sexual predator, a habitual sexual offender, or a sexually oriented offender. In the judicial review of prior legislation, such as Megan’s Law and the original SORN Law, courts
have noted with protective favor the ability of the trial courts to assess and classify offenders.

{¶27} Unlike the statute at issue in Cook and Eppinger, an individual’s registration and classification obligations under Senate Bill 10 depend solely on his or her crime, not upon his or her ongoing threat to the community. The result is a ministerial rubber stamp on all offenders, regardless of any mitigating facts in the
individual case. The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are likely to offend again at some point in the future. This process, as delineated in Senate Bill 10, has stripped the trial court from engaging in an independent classification hearing to determine an offender’s likelihood of recidivism: expert testimony is no longer presented; written reports, victim impact statements, and presentence reports are no longer taken into consideration, nor is the offender’s criminal and social history. See, State v. Eppinger, 91 Ohio St.3d at 166-167. Gone are the notice, hearing, and judicial review tenants of due process. Thus, there is no longer an independent determination as to the likelihood that a given offender would commit another crime.

While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, neither the Ohio Constitution nor the United States Constitution permit the retroactive application of Senate Bill 10 in its current form to individuals such as Ettenger. {¶29} Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding.

Furthermore, even if it were construed that the General Assembly’s intent was civil in nature, Senate Bill 10 is unconstitutional due to its punitive effect as applied to Ettenger. In assessing the effect of a statute, the United States Supreme Court has “provid[ed] some guidance” by indicating certain factors to be applied in resolving this point. The factors include:

{¶31} “Whether the sanction involves an affirmative disability or restraint, *** whether it has historically been regarded as a punishment, *** whether it comes into play only on a finding of scienter, *** whether its operation will promote the traditional aims of punishment – retribution and deterrence, *** whether the behavior to which it applies is already a crime, *** whether an alternative purpose to which it may rationally
be connected is assignable for it, *** and whether it appears excessive in relation to the alternative purpose assigned ***[.]” Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169. (Internal citations omitted.)

Since Cook, the sexual offender laws have been significantly modified. For example, the original version of the “sexual offender” law stated that the defendant only had to register with the sheriff of the county where he was a resident. See State v. Cook, 83 Ohio St.3d at 408. Under the latest version of the scheme, however, the places where registration is required have been expanded to now include: (1) the county where the offender lives; (2) the county where he attends any type of school; (3) the county where he is employed if he works there for a certain number of days during the year; (4) if the offender does not reside in Ohio, any county of this state where he is employed for a certain number of days; and (5) if he is a resident of Ohio, any county of another state where he is employed for a certain number of days. R.C. 2950.04. Not only is the offender now obligated to register in more counties, but he also has a legal duty to provide more information, as previously stated. Besides the change in the classification system, the increase in the duration and frequency of the requirements for registration, and the increase in the information provided, the access of the public to the information has been greatly increased through the use of an internet database that was previously established by the Ohio Attorney General.

The Supreme Court of Alaska, in Doe v. Alaska (2008), 189 P.3d 999, recognized the effects of requiring an offender to place personal information on a public registry. The Doe Court stated: {¶35} “*** [W]e agree with the conclusion of Justice Ginsburg, also dissenting in Smith, that ASORA [Alaska’s Sex Offender Registration Act] ‘exposes registrants, through aggressive public notification of their crimes, to profound humiliation and
community-wide ostracism.’ *** In the decision reversed in Smith, the Ninth Circuit observed that ‘(b)y posting (registrants’) names, addresses, and employer addresses on the internet, the Act subjects (registrants) to community obloquy and scorn that damage them personally and professionally.’ *** The Ninth Circuit observed that the practical effect of this dissemination is that it leaves open the possibility that the registrant will be denied employment and housing opportunities as a result of community hostility. *** As Justice Souter noted in concurring in Smith, ‘there is significant evidence of onerous practical effects of being listed on a sex offender registry.’ *** Outside Alaska, there have been reports of incidents of suicide by and vigilantism against offenders on state registries. ***

ASORA requires release of information that is in part not otherwise public or readily available. Moreover, the regulations authorize dissemination of most ASORA registration information ‘for any purpose, to any person.’ *** Taken in conjunction with the Alaska Public Records Act, *** ASORA’s treatment of this information, confirmed by the regulations, seems to require that the information be publicly available. By federal law, it is disseminated statewide, indeed worldwide, on the state’s website. *** There is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant’s information, some of which is not in the written public record of the conviction. As the Alaska Court of Appeals noted, ‘ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source.’We also recognized in Doe A that several sex offenders had stated that they had lost their jobs, been forced to move from their residences, and received threats of violence following establishment of the registry, even though the facts of their convictions had always been a matter of public record. *** We therefore conclude that the harmful effects of ASORA stem not just from the conviction but from the registration, disclosure,
and dissemination provisions.” Id. at *1009-1011.

After careful examination of this opinion, we agree with the reasoning and conclusion of the Doe Court.

“ASORA does not expressly impose sanctions that have been historically considered punishment. *** Because registration acts such as ASORA are ‘of fairly recent origin,’ courts addressing this issue have determined that there is no historical equivalent to these registration acts. *** Some courts have instead considered whether
the acts are analogous to the historical punishment of shaming; these courts have concluded that they are not. *** But the dissemination provision at least resembles the punishment of shaming *** and the registration and disclosure provisions ‘are comparable to conditions of supervised release or parole.’ *** And these provisions
have effects like those resulting from punishment. The fact that ASORA’s registration reporting provisions are comparable to supervised release or parole supports a conclusion that ASORA is punitive.”

Furthermore, Senate Bill 10 cannot promote the goals of retribution and deterrence when the classification of an offender is based solely upon the nature of the crime committed, not on an individual’s recidivism potential.

Under Senate Bill 10, every offender must provide identical information, and the information is published in the same manner for every offender. The only factor that differentiates the offenders is the frequency and duration of the registry. Furthermore, the offenders are not given the opportunity to petition the trial
court to restrict the public dissemination of his or her personal information, since the public is allowed unrestricted access to the offender’s personal information. If this were the case under Senate Bill 10, it is conceivable that the notification policy would promote the purpose of protecting the public from the offender’s “harmful behavior.” {¶44} The new law as applied to this case resulted in an offender, with a clear
expectation that his reporting was going to end in ten years, to be legislatively resentenced to an irrefutable lifetime of reporting. Based on the foregoing, Senate Bill 10 violates the ex post facto laws, as applied to Ettenger.

Retroactivity
“While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. *** Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.” Id. at ¶46.

In the instant case, Ettenger certainly had a reasonable expectation that his classification and attendant requirements were to last a finite period of ten years. Further, this reasonable expectation of finality was based on the agreement with the state of Ohio. Yet, through the enactment of Senate Bill 10, Ettenger is subject to mandatory lifetime reporting. The prospect of this result could have easily changed his decision to enter a guilty plea in his case and instead proceed to trial.

Based on the foregoing and when applied retroactively to offenders such as Ettenger, Senate Bill 10 violates the Ex Post Facto Clause of the United States Constitution and Section 28, Article II of the Ohio Constitution when an offender had a reasonable expectation of finality. The same result would not necessarily be true where an offender had been adjudicated a sexual predator, or if the offender, at the time of his conviction, had not yet been classified but could have been classified as a sexual predator. This is primarily due to the fact, as observed by Justice O’Connor, that these individuals never had any expectation that their registration requirements would end prior to the passage of Senate Bill 10. However, those individuals who had been
classified with resulting specific, terminable reporting requirements should be given the protections afforded by the United States and Ohio Constitutions.

Impairment of Contracts
We recognize a plea agreement is considered a contract between the state and a criminal defendant; as a result, such an agreement is subject to the general laws of contracts. State v. Butts (1996), 112 Ohio App.3d 683, 685-686. Therefore, if one side violates a term of a plea agreement, the other party has a right to pursue
certain remedies, including the rescission of the agreement. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13.

As part of Ettenger’s plea bargain, the state and defense counsel stipulated that he was to be classified a “sexually oriented offender pursuant to O.R.C. 2950.01.” At the March 20, 2008 hearing, defense counsel stated: {¶64} “[T]his case was negotiated so that the offenses that he was originally charged with were reduced, and as part of that plea bargain, [the state and Ettenger] stipulated that [Ettenger] was only a sexually oriented offender, and [Ettenger] relied on that. *** That’s what he understood that the result was going to be, and that’s why [Ettenger] entered the plea.”

This agreement was further evidenced in a journal entry dated May 7, 2002, indicating Ettenger plead guilty, was classified a sexually oriented offender, and address registration and verification was ordered annually for 10 years. The entry further states: “[t]his finding based on agreement of defense and prosecution.”

The classification category has always been an important part of the plea considerations in these cases. Indeed, those common pleas judges who deal with plea bargains in sex cases on a regular basis know that classification issues play an important role in the process. Common Pleas Judge James DeWeese, Richland
County, in a thorough and practical opinion noted: “[a]n observer who visits a courtroom when sex offenders are sentenced will see that sex offenders usually view the sex offender labeling, registration and community notification requirements as the most punitive and most odious part of their sentence.” Sigler v. Ohio (Aug. 11, 2008), Richland C.P. No. 07 CV 1863, unreported. Reversed by Sigler v. State, 5th Dist. No. 08-CA-79, 2009-Ohio-2010. In this case, Ettenger, the prosecutor, and the court agreed on his registration status. That should be the end of it. Reclassification by the state legislature clearly may have impacted Ettenger’s decision to enter a plea and forego his right to trial.

Therefore, in the instant matter, the enactment of the new sexual offender scheme under Senate Bill 10 constitutes a breach of Ettenger’s prior plea agreement. Ettenger’s contention that his reclassification constitutes an impairment of a contract is with merit.

Double Jeopardy
Through the enactment of Senate Bill 10, Ohio’s sex offender classification system has been revamped, increasing the frequency, duration, and extent of the reporting requirements. Of specific concern is the “automatic” nature of the new classification system. An offender’s classification status is solely based on the
crime he or she has committed. If an offender commits an offense set forth in R.C. 2950.01(G), or attempts to commit one of those offenses, he or she is classified as a Tier III offender and is forced to comply with the onerous registration requirements for the rest of his or her life. Moreover, unlike the former version of the statute, the offender is not entitled to a hearing where a judge could make an independent evaluation of the
offender’s specific likelihood of recidivism based on the offender’s criminal history, psychiatric evaluations, age, and facts of the underlying offense. In light of this significant change, our analysis of Ettenger’s retroactivity and ex post facto arguments, and the reasons set forth in Justice Lanzinger’s above-noted dissenting opinions, Ohio’s sex offender classification system is clearly punitive in nature. {¶74}

In this matter, Ettenger pled guilty to one count of attempted sexual battery. In 2002, he was sentenced for this offense and adjudicated a sexually oriented offender. He had an expectation of finality in that his reporting requirements would end in ten years. Now, additional punitive measures have been placed on Ettenger, as he is required to comply with the new registration requirements every 90 days for the rest of his life. Essentially, Ettenger is being punished a second time for the same offense. Accordingly, the application of the current version of R.C. 2950 to Ettenger violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.

If you are unable to view above Opinion link, go to http://www.sconet.state.oh.us/Rod/NEWPDF/ and search under 11th Court of Appeals , using search term “Ettenger”

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