Archive for May 20, 2010

Ohio Supreme Court Decision: Ohio v. Clayborn

May 20, 2010 Comments off

State v. Clayborn, Slip Opinion (PDF) No. 2010-Ohio-2123
No. 2009-0971 — Submitted February 17, 2010 — Decided May 20, 2010
Watch Oral Arguments in this case.

Today this court must decide whether an appeal of an R.C. Chapter 2950 sexual-offender classification is an appeal of a criminal matter that must be filed within 30 days after judgment in the case is entered, or whether it is a civil matter for which the 30-day deadline is tolled until the defendant has been served with a copy of the judgment entry. See App.R. 4(A). Because we hold that an appeal of a R.C. Chapter 2950 sex-offender classification is governed by the time within which the defendant may appeal the criminal judgment (conviction and sentence), we affirm the judgment of the court of appeals, but for reasons different from those of the court of appeals.

Thus far, this court has not yet addressed whether S.B. 10 is punitive or remedial, but our holdings in Cook, Wilson, and Ferguson do not turn the sex offender classification proceedings in the underlying criminal case, which has a criminal case number, into a civil case. While sex-offender-classification proceedings are civil in nature and require a civil manifest-weight-of-the-evidence standard, we hold that an appeal from a sexual offender classification is a civil matter within the context of a criminal case. Therefore, although the court reviews the classification matter on civil standards, the appeal requirements applicable to criminal cases nonetheless apply.

Accordingly, we hold that an appeal of an R.C. Chapter 2950 sexual-offender classification is an appeal in a criminal matter that must be filed pursuant to App.R. 4(A) within 30 days after judgment is entered. Having passed the appeal time in this case, Clayborn may file a motion for leave to appeal pursuant to App.R. 5(A), which the court of appeals may consider under the standards that exist for accepting delayed appeals. Therefore, we affirm the judgment of the court of appeals but for reasons different from those of the appellate court. We note again that the defendant may seek relief through a motion for leave to appeal pursuant to App.R. 5(A).

Judgment affirmed.
O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
PFEIFER and LANZINGER, JJ., concur in judgment only.
BROWN, C.J., not participating.

The issue in Clayborn was simply the amount of time in which an offender who is classified under the Adam Walsh Act has to appeal. Appellate Rule 4 states that in a criminal case, a party has 30 days after entry of judgment to appeal. But in a civil case, a party has up to 30 days after being served with notice of the entry of judgment. In other words, in a civil case if the clerk fails to serve notice of the judgment under Civ.R. 58(B), the appeal time is extended, but in a civil case it’s not. The Court held that sex offender classifications under the Adam Walsh Act can only be appealed under the more stringent criminal rule, not the more lenient civil rule. See next post for analysis: Ohio Supreme Court Tips Hand on Sex Offender Classification Ruling?

Ohio Supreme Court Tips Hand on Sex Offender Classification Ruling?

May 20, 2010 Comments off Ohio Supreme Court Tips Hand on Sex Offender Classification Law?

While this posting comes from a commercial attorney web site, it provides very interesting information we had not previously seen.

Today’s ruling from the Ohio Supreme Court in State v. Clayborn, 2010-Ohio-2123 [PDF] may offer some insight into whether the Court will strike down the Adam Walsh Act, which reclassified sex offenders and in many cases extended indefinitely their reporting or registration requirements.

The issue in Clayborn was simply the amount of time in which an offender who is classified under the Adam Walsh Act has to appeal. Appellate Rule 4 states that in a criminal case, a party has 30 days after entry of judgment to appeal. But in a civil case, a party has up to 30 days after being served with notice of the entry of judgment. In other words, in a civil case if the clerk fails to serve notice of the judgment under Civ.R. 58(B), the appeal time is extended, but in a civil case it’s not. The Court held that sex offender classifications under the Adam Walsh Act can only be appealed under the more stringent criminal rule, not the more lenient civil rule.

What does this have to do with the validity of the Act itself? Good question. The Adam Walsh Act, also known as R.C. Chapter 2950, required the state to re-classify all existing sex offenders into one of three new tiers. The reporting requirements for each tier were significantly more stringent than the prior reporting requirements. For example, an offender who had been convicted of a sexual battery may have been previously classified as a sexual offender and ordered to register annually for ten years. Under the Adam Walsh Act, that person (so long as they were still within that ten-year notification period) would be classified as a Tier III offender and would have to register every 90 days for life.

Many offenders have challenged the law as unconstitutional. A variety of theories are usually trotted out, including the separation of powers doctrine, equal protection, double jeopardy, and plea-bargain-as-contract. Particularly relevant here, though, is that the petitioners usually argue that the Adam Walsh Act violates the prohibition on retroactive laws in the Ohio Constitution (Article II, Section 28) or the ex post facto clause in the U.S. Constitution (Article I, Sections 9-10).

To my knowledge, all Ohio appellate courts have rejected these arguments to date.

(actually, at least two appellate courts in Ohio have ruled Ohio Senate Bill 10 to be unconstitutional. See Ohio vs. Spangler and Ohio vs. Ettenger but most courts have indeed rejected challenges…)

They tend to rely on the 1998 Ohio Supreme Court case of State v. Cook (83 Ohio St.3d 404), in which the Court approved the sex offender classification law enacted in 1997, known as Megan’s Law. The Cook Court held, among other things, that the sex offender law was a “merely remedial” law, and not a “substantive” law. The Court explained that “the General Assembly’s purpose behind R.C. Chapter 2950 is to promote public safety and bolster the public’s confidence in Ohio’s criminal and mental health systems,” and further found that “[t]he statute is absolutely devoid of any language indicating an intent to punish.” As directly and bluntly as possible, the Court said that “R.C. Chapter 2950, on its face, clearly is not punitive.”

“Merely remedial” and “not punitive” are other ways of saying “civil, not criminal.” In other words, the Cook Court’s approval of the classification system is based on a finding that the sex offender registration was a civil statute, not a criminal statute.

The significance of the Clayborn holding should be evident: the Court has now said, at least for purposes of protecting appellate rights, that the Adam Walsh Act must be treated as a criminal statute, not a civil statute.

Challenges to the Adam Walsh Act are pending before the Court right now. In November, for example, the Court heard argument in In re: Darian J. Smith, in which the petitioner contested the validity of the Adam Walsh Act on ex post facto and retroactivity grounds (docket available here). The decision in Clayton may indicate a tendency to strike down the Adam Walsh Act, or at least its retroactive application.

The four consolidated cases pending before the Ohio Supreme Court (which includes Darian J. Smith vs. Ohio) can be found here.

How Sex Offender Registries Ruin the Lives of Teenagers

May 20, 2010 Comments off

Two news reports of how draconian sex offender laws have ruined the lives of two young teenagers: No longer a registered sex offender, but the stigma remains.

Stilwell, Oklahoma (CNN) — As a teenager, Ricky Blackman carried an Oklahoma driver’s license with the words “sex offender” stamped in red below his picture. His crime? Having sex with a 13-year-old girl when he was 16. The offense occurred when he lived in Iowa, and the label followed him to Oklahoma. Blackman pleaded guilty to one count of sexual abuse for having sex with the 13-year-old. The age of consent in Iowa is 14.

As a Tier 3 offender on Oklahoma’s sex offender registry, Blackman could not attend high school, visit the town library, or go to his younger brother’s football games. But the label did more than limit where Blackman could go. It transformed him from an outgoing, sociable jock into an introvert who has trouble trusting people, his mother says.

Taking into account the circumstances of the case, an Iowa judge accepted Blackman’s plea and ordered that his record be expunged if he successfully completed probation and sex offender treatment. At that time, his name would be removed from Iowa’s sex offender registry.

After his conviction, Blackman’s family moved to Oklahoma to get a fresh start. He finished his probation and sex offender treatment, and his record in Iowa was expunged in October 2008, according to court documents.

But the action did not carry over to Oklahoma, where Blackman continued to be listed on that state’s sex offender registry. The stigma followed him to his new home and the harassment continued, the family said.

A neighbor who found out he was on the registry videotaped him when he went outside, Blackman said. His picture and address were posted on a vigilante Web site, and a gas station attendant refused to sell him cigarettes, one time taking his license and throwing it across the store.

To comply with state residency restrictions that prevent registered sex offenders from living within 2,000 feet of a school or day care center, the family moved onto a small plot of land in the rural southeastern Oklahoma community of Stilwell, population 3,500.

Having a son on the registry also made a lasting impression on his mother. She now devotes most of her time to reforming sex offender legislation –specifically, the registry — as chief operating officer of Sex Offender Solutions And Education Network.

Blackman’s story comes at a time of increased push-back against sex offender policies that some see as overly broad. Many states have been resisting toughening their sex offender policies. Only one state, Ohio, has complied with the federal Adam Walsh Child Protection and Safety Act of 2006, which lists sex offenders as young as 14 on a uniform registry.

In Georgia, the Southern Center for Human Rights is challenging a state law prohibiting sex offenders from living and working within 1,000 feet of a school, church or day care. Georgia’s laws go so far as to ban sex offenders from living near bus stops. The case is still pending.

Last summer, the American Civil Liberties Union filed a lawsuit against Miami-Dade County, alleging the county’s 2,500-foot residency restriction interfered with Florida’s ability to monitor and supervise released offenders. With nowhere to live, dozens of homeless sex offenders clustered under the Julia Tuttle Causeway. The lawsuit was dismissed in September 2009.

Meanwhile, Blackman was just trying to graduate from high school. He attempted to enroll but was told that he was considered a danger to the rest of the students. He couldn’t take GED classes at the vocational school in town because of an on-campus day care center.

His mother persuaded the school board to provide him with a tutor and private classes at the local police department, under the supervision of an officer.

Finding a job presented its own challenges. He says he was turned down by Wal-Mart, McDonald’s and another fast food outlet that told him he was considered a liability. He spent most days at home learning to build Web sites and helping his mother and brother.

Due in large part to the efforts of his mother, the Oklahoma Legislature last year passed the law that makes expungements of certain sex offenses in other jurisdictions applicable in Oklahoma.

“I know what I did was wrong and I deserved to be punished for it. But this destroyed my life. Took it away from me,” he said. “You never forget about it. I know I’m off the registry but it’s taking a long time for it to settle in.”

In November, Blackman received a letter from the Oklahoma Board of Probation and Parole. It said he had been removed from the state’s sex offender registry, where he had been designated the highest level of risk possible.

His return to a “normal” life has been slow. He still is reluctant to go to his brother’s football games, and the thought of going to places where children convene makes him nervous.

“I know I’m off the registry but others may not know,” he said. “I don’t want to go somewhere and cause a scene ’cause people may not know that I’m allowed to be there and get upset.”
————————————————————— A long wait to get past crime – Kids as young as age 10 can be registered as sex offenders, a label lasting a decade.

Samantha Portwood is marking the days on her calendar until Sept. 30. That’s the day her 24-year-old son’s name and picture is expected to be removed from the state’s sex offender registry.

For the past decade, her son Dale has lived under public scrutiny for a crime he committed when he was 12. He inappropriately touched a 7-year-old girl at his baby sitter’s house and was charged with aggravated sexual assault. After completing two years of therapy and probation, he had to register as a sex offender, which shocked his parents.

“It frustrates me,” said Portwood, of Pinehurst in Montgomery County. “He was 12 years old when it happened. He’s not a threat to society.”

Her son isn’t alone. About 3,600 people on the state’s registry were added as juveniles, according to the Texas Department of Public Safety, which administers the registry. Eleven were 10 years old when they registered.

The registry has 26 juveniles who are currently 13 to 16 years old, according to state records. Of the more than 340 juvenile registrants who live in Harris County, three are currently 16 years old, records show.

Many people are not aware that juveniles can be registered as sex offenders in Texas. State legislators made registration mandatory for adults and juveniles when they established the sex offender registry in 1991. Texas does not have a minimum age for juvenile registration, but the minimum age for prosecution is 10.

Juvenile registration has been debated by lawmakers, child advocates and crime victim proponents for the past decade. Those who support it contend the community has a right to know about dangerous sex offenders — adult or juvenile. Critics argue that the negative consequences on juveniles and their families far outweigh any benefits to the community. No research suggests registration makes communities safer, they said.

Access to court records for juveniles with delinquent backgrounds are generally restricted to protect them from shame and to give them a fresh start. But anyone can access the state’s online sex offender registry and see the juvenile’s criminal charge. The registry, which went online in 1997, also makes available the juvenile’s address, where he attends schools and annual mug shots.

“I feel like this is totally inconsistent with the way we as a society have determined is the right way to deal with juvenile behavior,” said Theresa Tod, director of the Texas Network of Youth Services. “To protect juveniles from public derision is our job.”

Unlike adult sex offenders who must register for life, juvenile sex offenders are required to register for 10 years after they leave the juvenile system. The vast majority of juvenile sex offenses are against other children, and the juvenile generally knows the victim, said juvenile justice experts.

In some cases, juvenile sex offenders have safety zone stipulations as part of their probation and can’t go to certain places, such as parks or community centers. The restrictions can limit their social activities and job opportunities, which are key to rehabilitation, McLaughlin said.

Allison Taylor, executive director of the Texas Council on Sex Offender Treatment, said“Anytime you destabilize adults or juveniles, you increase the risk of recidivism” . “That is a public concern.”

Portwood has spent 10 years trying to protect her son from being bullied and ostracized. She said she helplessly watched as Dale’s self-esteem diminished. She believes her once mild-mannered son intentionally misbehaved in school so he would be disciplined and not have to attend.

In high school, classmates called him a rapist and child molester behind his back, she said. He eventually dropped out in 10th grade. “He came to me and said, ‘Mom, I can’t take it anymore,’” she said. “He said, ‘Do people look at me and think I’m a monster?’ What do you tell him?”

Portwood said she knows her son’s actions were morally wrong but believes it didn’t merit him being labeled a sex offender.

Failure to report a change of address, a registry rule, landed him in prison last year. He was released on parole in March and is living outside of Austin, trying to get his life back on track.

Dale, who did not want his last name used to protect his identity, said he did not realize at 12 what he did was wrong. He said he never was a sexual predator and feels like registration robbed him of his childhood because his life was filled with constant embarrassment.

As many as 32 states require juvenile registration, and as many as 20 states have special juvenile procedures that can terminate a juvenile’s duty to register, according to the Center for Sex Offender Management, a project of the U.S. Justice Department.

But judicial discretion, the one element that makes juvenile registration palatable for some critics, would be stripped under the federal Adam Walsh Child Protection and Safety Act of 2006. The law sets new standards for registering sex offenders. All states were required to comply with the act by this year. Many states, however, have objected to a requirement for all juveniles 14 and older who have committed aggravated sexual assaults to register for 25 years. The U.S. attorney general recently issued all states a one-year extension for compliance.

SD Governor Signs Bill to Create Tiered Sex Offender List

May 20, 2010 Comments off Governor Signs Bill to Create Tiered Sex Offender List. SD gov. signs bill changing sex offender registry.

Pierre, S.D. (AP) – A bill allowing some people to get their names removed from the state sex offender registry has been signed by South Dakota Gov. Mike Rounds.

The measure creates three levels of sex crimes. Those convicted of the most serious sex offenses, including crimes against children, could never get off the offender list. Those convicted of midlevel sex crimes could ask to be removed after 25 years. And those convicted of less serious crimes, such as statutory rape when the offender is no older than 21, could seek to be removed from the list after 10 years.

Apparently, as within the Adam Walsh Act, there is no judicial review permitted in determining an individual’s tier level. Categorizing past offenders into more stringent registration tiers based on their offense alone – after their they have completed their sentences – violates due process provisions of the Constitution.

Furthermore, prohibiting a group of citizens from ever being able to petition their way off these lists only creates a sub-class of people who have nothing to live for and no reason to be law abiding, which will only put public safety at greater risk.