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Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

July 11, 2011

Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

Under U.S., Ohio Constitutions’ Bans Against Ex Post Facto Laws

State of Ohio v. George D. Williams, Case no. 2009-0088
12th District Court of Appeals (Warren County)

ISSUE: Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on offenders whose crimes were committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?

BACKGROUND: In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorized the state attorney general to reclassify sex offenders who had previously been classified by judges under an earlier version of the law, “Megan’s Law.” The Court held that the challenged provisions violated the separation-of-powers doctrine of the Ohio Constitution. The defendants in Bodyke also argued that application of the AWA to crimes that were committed before the July 1, 2007 effective date of that legislation violated the constitutional prohibition against “ex post facto” laws (laws that retroactively increase the punishment for a crime after the crime has been committed). However, because the Court’s ruling on the separation of powers issue voided the Bodyke defendants’ reclassifications under the AWA and reinstated their Megan’s Law registration status, the justices declined to review the appellants’ ex post facto arguments. In this case, a defendant not affected by the Bodyke decision challenges on ex post facto grounds a trial court order that applied the AWA classification scheme in sentencing him for a crime he committed before July 1, 2007.

When the General Assembly adopted the AWA, it specified that, regardless of when a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply the new AWA sex offender classification scheme and include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the previous, Megan’s Law, version of the statute.

George Williams of Warren County was convicted in December 2007 of engaging in sexual conduct with a 14-year-old girl. The conduct on which his conviction was based took place in May 2007. Prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. He was sentenced to three years of community control and classified as a Tier II offender under the AWA, requiring him to register with the sheriff in his county of residence every 180 days for the next 25 years. If he had been sentenced under the Megan’s law version of the statute, Williams, who had no prior sex-related convictions, would have been subject to once-a-year registration for 10 years.

Williams appealed, arguing that the retroactive application of the AWA registration requirements to his May 2007 offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals affirmed the trial court’s classification of Williams under the AWA as constitutional. The court of appeals cited several prior Supreme Court of Ohio decisions including State v. Cook (1998), State v. Wilson (2007), and State v. Ferguson (2008), in which this Court held that the statutory registration and community notification requirements imposed by the state on sex offenders were civil and “remedial” measures designed to protect the public rather than punitive measures intended to punish or deter offenders. Applying that same analysis to Williams’ case, the 12th District held that retroactive imposition of the AWA registration requirements as part of Williams’ sentence did not retroactively “increase the punishment” for his crime, and therefore did not violate the ex post facto clause of the U.S. Constitution or the retroactivity clause of the state constitution.

Williams sought and has been granted Supreme Court review of the 12th District’s ruling.

Attorneys for Williams point out that the Cook, Wilson and Ferguson decisions cited by the 12th District all analyzed the pre-2008 sex offender classification scheme under Megan’s Law, not the more stringent requirements imposed by the AWA. They argue that these earlier decisions relied on the fact that, before a sex offender was classified under Megan’s Law, the court was required to conduct a hearing at which the judge reviewed the facts of that specific case and the defendant’s personal and social history to determine how likely that individual was to reoffend — and then impose whatever level of registration and/or community notification the court found necessary to protect the community. They note that the AWA has eliminated judicial review of an individual offender’s history or the circumstances of his crime for purposes of classification, and instead imposes identical registration and community notification requirements on offenders based exclusively on their offense. The appellants argue that the AWA classification system is no longer primarily a remedial scheme related to the actual danger posed by individual offenders.

Attorneys for the state point to specific language included in the AWA stating that the legislature’s intent was “to protect the safety and welfare of the people of this state,” and that the exchange or release of information required by the statute “is not punitive.” They argue that the registration and community notification requirements in the AWA are merely expansions of requirements that were already imposed under Megan’s Law, and assert that nothing in the 2007 changes to the law have changed the nature or intent of those requirements from remedial to punitive. Accordingly, they assert, the Court should follow its earlier holdings that requiring sex offenders to register with police and disclosing their presence to others who live, work or attend school nearby is not punishment, and applying those requirements retroactively does not offend the ex post facto provisions of the Ohio or U.S. constitutions.

NOTE: An amicus curiae (friend of the court) brief supporting the position of Williams has been submitted by the Cleveland Rape Crisis Center and Texas Association Against Sexual Assault. The American Civil Liberties Union also has submitted an amicus brief supporting Williams’ position. The Ohio attorney general’s office and Franklin County prosecutor’s office have entered amicus briefs supporting the position of the state. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2009-0088, in the search box provided.

Contacts
Michael Greer, 513.695.1325, for the state and Warren County prosecutor’s office.

Katherine A. Szudy, 614.466.5394, for George Williams.

Ohio Channel Video

http://www.supremecourt.ohio.gov/PIO/oralArguments/11/0301/0301.asp

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