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OH Supreme Court: Upholds Retroactivity

October 1, 2008

ColumbusDispatch: Ohio Supreme Court upholds sex offender rules. October 1, 2008 1:45 PM

The Ohio Supreme Court today upheld as constitutional the retroactive application of a 2003 law that tightened reporting and community notification rules on registered sex offenders (Adam Walsh Act).

Applying the law to sex offenders whose crimes predate it doesn’t violate federal and state constitutional prohibitions against “ex post facto,” or retroactive, laws, wrote Justice Maureen O’Connor, who authored the court’s 4-3 majority opinion.

That’s because the law’s provisions are remedial and designed to protect the community, and not punitive and designed to punish the offender, she wrote.

The 2003 law toughened a 1996 law, called “Megan’s Law,” which classified convicted sex offenders and required them to register with their local sheriff.

The Ohio Supreme Court rejected a constitutional challenge in 1998 to the 1996 law. The court ruled then that the law’s requirements could apply retroactively because the law’s intent was to protect the community from future sex crimes rather than impose additional punishment on the offender.

O’Connor used the same standard in upholding the retroactive application of the 2003 law.

The 2003 law toughened “Megan’s Law” by, among other things: requiring lifetime registration for offenders classified as sexual predators; requiring offenders to register not only with their home county sheriff but with the sheriff of the county where they go to school or work; and expanded community notification by allowing photos and other information provided to sheriffs by offenders to be included in a database accessible online.

O’Connor noted that the court already upheld retroactive application of the 1996 law and that that the changes in the 2003 law reflect the same intent to protect the community.

“We determine that the legislative history supports a finding that it is a remedial, regulatory scheme designed to protect the public rather than punish the offender a result reached by many other courts,” she wrote in the majority opinion, which was joined by Chief Justice Thomas J. Moyer and Justices Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger, joined by Justices Paul E. Pfeifer and Evelyn Lundberg Stratton, wrote a dissenting opinion saying the tighter rules amount to punishment.

In a separate case earlier this year, the court ruled that the 2003 law’s residence restriction prohibiting sex offenders from living within 1,000 feet of a school could not apply retroactively because there was a lack of clear legislative intent. Nothing in the law stated that the residence restrictions could apply retroactively, the court ruled.

This is the manner by which courts will take away our rights. They re-define terms, like “punishment” in order to justify unconstitutional laws. They simply refuse to acknowledge the fact that these laws impose restrictions and punishments on citizens who committed crimes up to decades ago. Just three justices were able to understand the obvious fact that these laws impose punishment. We must fight them to forcefully take back our rights !

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