COLUMBUS, Ohio, July 13 (UPI) — A law on registration and community notification for released sex offenders cannot be applied retroactively, the Ohio Supreme Court said Wednesday.
The justices ruled 5-2 the 2007 Ohio Adam Walsh Law can only be applied to offenders who committed their crimes after it became effective, The Columbus (Ohio) Dispatch reported. The court reversed a decision by a state appeals court.
“The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders,” Justice Paul Pfeifer said. “It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.'”
Justice Terrence O’Donnell in the minority opinion said the court has said in previous rulings that requiring sex offenders to register and providing community notification in some cases are civil sanctions, not criminal penalties.
The Ohio Supreme Court, in a ruling published today, has declared that imposing “enhanced” sex offender registration and community notification requirements on previously-convicted sex offenders, as required by the Ohio Adam Walsh Act (AWA) which was contained in 2007’s Senate Bill (SB) 10 is a violation of the Ohio Constitution.
“When the General Assembly adopted the AWA by enacting 2007 S.B. 10,” stated a Ohio Supreme Court press release, “it included statutory language requiring that, regardless of the date on which a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply a new three-tiered AWA offender classification scheme and must 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 prior, Megan’s Law, version of the statute.”
The decision was based on Article II, Sec. 28 of the Ohio Constitution, which states in part, “The general assembly shall have no power to pass retroactive laws.” Similar wording can be found in the U.S. Constitution as well, where one clause in Article I, Sec. 9 reads, “No Bill of Attainder or ex post facto [“after the fact”] Law shall be passed.”
The case at issue was State v. George Williams, where the defendant had been convicted for engaging in sexual conduct with a minor—conduct which took place prior to July, 2007, although Williams was convicted on the charges in December, 2007, after SB 10 had been passed.
“Prior to his sentencing hearing,” the Supreme Court’s press release stated, “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. Pursuant to the AWA he was classified as a Tier II offender, which required him to register with the sheriff in his county of residence, and in any other county in which he worked or attended school, every 180 days for the next 25 years.” Under Megan’s Law, his registration and reporting requirements would have been limited to 10 years.
Williams appealed that ruling under the ex post facto/retroactivity clauses of both the Ohio and U.S. Constitutions, as well as arguing violation of the U.S. Constitution’s due process clauses and its ban on double jeopardy.
Another portion of the AWA, which would have allowed the Ohio Attorney General to reclassify sex offenders without the necessity of judicial approval, was overturned by the same court just over one year ago.
The Ohio Supreme Court’s 5-2 decision, authored by Justice Paul E. Pfeifer, overturning the AWA was largely based on the fact that while several state decisions had held that the registration requirements of Megan’s Law were considered remedial rather than punitive in nature, “Following the enactment of SB 10, all doubt has been removed: R.C. Chapter 2950 [the AWA] is punitive,” Justice Pfeifer stated in the majority opinion. “The statutory scheme has changed dramatically since this court described (in [State v.] Cook) the registration process imposed on sex offenders as an inconvenience ‘comparable to renewing a driver’s license.’ … And it has changed markedly since this court concluded in [State v.] Ferguson that R.C. Chapter 2950 was remedial…
“Based on these significant changes to the statutory scheme governing sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial, even though some elements of it remain remedial…,” the high court concluded. “We conclude that SB 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of SB 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.”
“The Ohio Supreme Court decision in Williams does a really good job of explaining how in light of these internet websites that we now have, and community notification and criminal penalties attaching and more periodic registration in person with a sheriff there, all of these measures are looking more and more and more like punishment and less and less and less like a driver’s license,” one attorney analyzed, “and as that shift has happened, it’s become more like criminal punishment, and really, the Ohio Supreme Court is the first top court in a state to characterize it that way.”
Kinsley said that through her discovery motions in the case, it had been revealed that hundreds of people in Ohio will be affected by today’s decision, and will now be able to get on with their lives without the stigma of appearing on sex offender websites.
The legislature’s attempt four years ago to apply a new law to already-convicted sexual offenders violated the Ohio Constitution, the state Supreme Court ruled today.
Imposing enhanced registration and community notification requirements in the 2007 Ohio Adam Walsh Act against defendants whose crimes were committed before the effective date of that law violates a constitutional prohibition on the General Assembly enacting retroactive laws, the justices declared.
The 5-2 decision, which reversed a ruling by the 12th District Court of Appeals, was written by Justice Paul E. Pfeifer.
“The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders,” Pfeifer said. “It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.’ “
Joining the majority opinion were Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown.
Justice Terrence O’Donnell authored the dissenting opinion, which was joined by Justice Robert R. Cupp.
Today’s decision came on the appeal of George Williams of Warren County, convicted in December 2007 for engaging in sexual conduct with a minor an offense that occurred before the Adam Walsh Act took effect. Williams asked the judge to sentence him under the previous sex offender classification setup, known as Megan’s Law.
The judge rejected that motion and classified him under the more stringent Adam Walsh Act as a Tier II offender, which required him to register with the sheriff in his home county and in any other county in which he worked or attended school, every 180 days for the ensuing 25 years.
Williams appealed, but was turned down by the 12th District Court of Appeals.
Pfeifer noted that in earlier Supreme Court decisions on previous changes in the sex offender law, justices upheld the changes because they were more remedial than punitive, and thus the constitutional ban on retroactive laws did not apply. But the changes in the Adam Walsh Act made them punitive, and therefore unconstitutional.
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.
Michael Greer, 513.695.1325, for the state and Warren County prosecutor’s office.
Katherine A. Szudy, 614.466.5394, for George Williams.
ohioattorneygeneral.gov: Cordray Announces New Efforts to Track Sex Offenders (official announcement).
sexoffenderresearch.blogspot.com: Cordray Announces New Efforts to Track Sex Offenders (important analysis).
8/27/2010(COLUMBUS, Ohio) – Ohio Attorney General Richard Cordray announced today that his office has received a federal grant that will help county sheriffs keep better track of registered sex offenders.
The $155,546 grant will pay for two new programs. (your tax dollars)
The first will allow the Attorney General’s Office to develop a phone and e-mail alert system that will send automated messages to offenders and sheriffs’ offices around Ohio, five days before offenders are supposed to re-register as part of their reporting requirements. The system also will track phone numbers or e-mail addresses that no longer are in operation, alerting sheriffs’ offices if the contact information provided by offenders is incorrect.
The second part of the grant will help county sheriffs’ offices fund extradition of offenders who moved to other states without notifying local authorities as required by law.
Analysis from sexoffenderresearch.blogspot.com:
“Of course this new system of tracking likely will catch offenders unaware and maybe arrested, when they are actually compliant. For instance, if a phone is shut off because one cannot pay a bill, that would cause the registrant to be arrested. If a registrant doesn’t use his/her e-mail addresses frequently, the e-mail provider will tag that account for being dormant and eventually close the e-mail account, causing the registrant to be arrested. Next, if a registrant has many e-mail addresses each for different purposes, will s/he be arrested because he decides to no longer use one of them? There is a big difference in having a e-mail address and using it, this new system forces registrants to use ALL e-mail addresses regularly or face arrest.”
Don’t forget: The Ohio Attorney General has still not complied with the Bodyke Supreme Court ruling of June 3, 2010. While 2300 registrants are slated to be removed from the sex offender registry as a result of this ruling, only 1000 names have been removed from the list in three months’ time. We must all continue to call and contact the Ohio AG office to force them to comply with the law. 90 days after Bodyke, the Ohio AG office is in violation with Ohio law. Click Watchdog icon below for contact information:
SLIP OPINION NO. 2010-OHIO-3737
The State of Ohio, Appellee v. Bodyke et al, Appellants.
“1. On June 3, 2010, the court reversed the judgment of the court of appeals in this case. State v. Bodyke,Ohio St.3d, 2010-Ohio-2424,N.E.2d.
2. Appellee, state of Ohio, and amicus curiae Ohio Attorney General
have filed a joint motion for reconsideration and/or clarification.
3. The motion for reconsideration and/or clarification is denied.”
Therefore, there is no longer any excuse for the failure of the Ohio Attorney General’s office to re-classify all affected former offenders. They have been dragging their feet for ten weeks now, refusing to abide by the Supreme Court’s ruling.
In just over 10 weeks, the Ohio AG office has removed only about 1000 registrants from their Sex Offender Registry. We are told by the Ohio Public Defender Office that approximately 2300 individuals are slated to be removed. But keep in mind that people are forced onto this corrupt registry every day, as well.
The AG office has refused to answer or return our calls. They have now blacklisted Constitutionalfights. And they have told us so, very directly and rudely. So we must rely on you, the readers, to help do the job of holding them accountable.
Keep contacting the Ohio Attorney General’s Office daily until they get these re-classifications completed and send official letters !
We are hearing from some (not many) readers who have told us of their removal from the registry. We are happy to see these people relieved of their illegal punishments but we urge all readers to remain vigilant until the Attorney General Office sends official letters to registrants informing them that they no longer have a duty to register. Having these letters in hand is very important. Law enforcement is just as corrupt and incompetent as other state authorities are. If a sheriff bangs on your door in the middle of the night because you did not register, you need to have that letter in hand !
Justin Hykes, Assistant Attorney General of Ohio
E-fax 1 866 293 1021
Paula Armentrout ,AG Help Center Manager can be contacted here:
Dan, Help Center Supervisor can be contacted here:
Ohio Attorney General Office:
Ohio Attorney General Richard Cordray, 30 E. Broad St., 17th Floor, Columbus, OH 43215
Monday – Friday 8 a.m. – 7 p.m.
Email Ohio ESORN at OHLEGsupport@OhioAttorneyGeneral.gov
Kim Kowalski: (614) 728-9692, cell: (614) 893-6018
Ted Hart: Deputy Director of Media Relations
Office of the Ohio Attorney General
PHONE 614-728-4127, cell: (614) 743-2286
EMAIL firstname.lastname@example.org (614) 728-4127
We are also now actively seeking advice from any legal professionals who read these blogs, regarding potential legal action against the Ohio Attorney General Office for their failure to abide by this Ohio Supreme Court ruling. Please contact us at email@example.com with any advice or willingness to help. Thank you.
A helpful reader altered me to this local article which provides a window into just some of the many messy issues involved in Ohio’s on-going effort to get conform its sex offender registration rules to comply with the federal Adam Walsh Act. The piece is headlined “Sex offender reclassifications will take months; One case shows how new ruling affects law on registration,” and here are some highlights:
George Anderson, a rapist designed a Tier III sex offender, was convicted by a Montgomery County jury for failing to verify his address. On Friday, July 16, the Ohio 2nd District Court of Appeals voided his conviction, citing the June 3 Ohio Supreme Court decision that eliminated reclassifications under the Adam Walsh Act….
These types of decisions will likely continue during the coming months, said Margie Slagle, staff attorney with the Ohio Justice and Policy Center. “Thousands and thousands of petitions were filed across the state,” Slagle said.
Twenty-eight counties were awaiting the Supreme court’s ruling before taking any action on challenges to Walsh. Nine, including Montgomery, issued county-wide stays, according to a brief filed by the Ohio Public Defender.
Anderson was originally classified a “sexually oriented offender,” the lowest designation under the state’s Megan’s Law. He was required to register his place of residence annually for 10 years. Under the Adam Walsh Act, which replaced Megan, he was reclassified as a Tier III offender — the highest level — and required to report every 90 days for the rest of his life….
The high court’s ruling kept the Walsh system for new offenders, but ordered the 26,000 offenders who were reclassified to be returned to the old system and its requirements. “It’s going to make it confusing,” said Mercer County Sheriff Jeff Grey, who heads the Buckeye State Sheriff’s Association’s committee on sexual offender notification.
Under the old system, 77 percent of offenders were in the lowest category and 18 percent were in the highest as “sexual predators.” Under Walsh, the highest category, Tier III, contained 54 percent.
That tripled the workload for sheriff’s offices, with more offenders visiting four times a year instead of annually, Grey said. “That’s less time that we have a deputy out physically looking” to see if offenders live at the addresses they give, Grey said.
Attorney General Richard Cordray, whose office notified all affected offenders in 2008 that their designation had changed, has asked the Supreme Court to reconsider its decision. He also has included a request for clarification concerning those offenders who did not have court hearings to determine classification, such as those convicted in other states. Ted Hart, a spokesman for Cordray’s office, said staff was manually going through all records to determine which defendants had court hearings.
“If they did have a hearing, they will be reclassified,” Hart said “If they did not, the cases will remain pending until we receive further clarification from the court.”
From our contact at the Ohio Public Defender Office:
Someone in our SB 10 litigation group was able to get some information from the AG’s office today. Here’s the excerpt from that email:
The AG’s office has reclassified all of the Predators and are now working on the Habitual Offenders (those whose original classifications were either Predator or Habitual before Senate Bill 10). They are reclassifying those two groups first because all of those people clearly have a prior judicial registration order (the court order given near time of conviction which originally classified the offender). The Bodyke decision requires that these original court orders shall now go back into effect.
For the originally-classified Sexually Oriented Offenders, they are pulling the final court order to confirm there was a hearing and reclassifying them.
Out of state offenders will not be changed pending the Motion for Clarification, and neither will anyone without a court order.
They believe approximately 2300 offenders will be released from the sex offender registry. They are checking each one individually to make certain there were no tolling events. They are then notifying the Local Sheriff’s Office of whom should be removed from the registry. Notices will be sent to all but the Predators.
They also believe that all the other provisions of SB 10 still apply to the reclassified offenders.
They are reclassifying people whose original classifications (before SB 10) were either Predator or Habitual, because all of those people clearly have a prior judicial order. If you were originally classified as a Sexually Oriented Offender, you probably won’t be getting an official letter from the AG until they start reclassifying people who were originally SOO’s. And, it looks like they’ll only reclassify SOO’s who have a prior court order labeling them as such. (If you’ve seen the Motion for Clarification that the AG filed last month, they’re unsure of how to classify people who don’t have prior court orders.)
Note: Attorneys for Bodyke have filed a Motion in Opposition to the AG’s Motion for Clarification, which was filed immediately after the decision by the Ohio Attorney General office. We said at the time that this was a stalling tactic by the AG to buy time. Let us hope the Ohio Supreme Court quickly denies the AG motion.
Newsvine.com: Sex Offenders Meet Media.
A group of former sex offenders and experts in the field of sexual offense met with members of the press Monday, following the 2nd Annual Conference of Reform Sex Offender Laws (RSOL). RSOL seeks to reform or repeal legislation like the Adam Walsh Act, which has a current deadline for implementation of July 1st but has only been completely adopted by 4 states (3 states and an Indian Tribe, as far as we know).
Surprisingly RSOL does not seek for the immediate abolishment of the Sex Offender Registry but for a more directed approach to Registration and other sex offender related laws. According to Dr. Chrysandi Leon, University of Delaware, Professor of Sociology and an Expert on Sex Offender recidivism who presented at the conference, “the limited resources of law enforcement are being diluted by the blanket registration of all sex offenders.” “Credible statistical studies over the last 15 years “since the registry was implemented show that “it has had no impact of the recidivism rate.” We can go back to studies from the 1940’s on, long before the registry was implemented, and show that the rate of offenses has remained remarkably consistent over the intervening years.
RSOL advocates a more directed and individualized approach to registration using scientifically based data to identify those offenders who pose a significant treat to society and who are truly “dangerous.” Right now it is impossible for parents or even law enforcement to accurately determine an offender’s potential risk because of labels such as “sexually violently predator” which are blanketedly applied to all offenders who have committed a specific set of offenses rather that using individualized assessment to apply that designation. Having over 700,000 people on the registry nation-wide makes it difficult for law enforcement to narrow the field quickly when a child goes missing.
“We are as concerned about the safety of children as anyone else” says Kelly Piercy, a former offender, and chairman of Georgians for Reform, but “we don’t believe that the current legislation is effective in doing so, it wastes resources and punishes those who are trying to reintegrate as productive citizens.”
Interestingly several children both of non-offender presenters and children of former offenders attended and roamed freely about the conference seemingly without fear of any kind.
Besides Dr. Leon, and Piercy other presenters at the conference included: Lloyd Swartz, New Mexico Registrant and Reform Advocate, J.Tom Morgan, former prosecutor and sex offender registry sponsor from Georgia who now states that “the registry no longer serves the purposes for which it was created;” Norman A. Pattis, Connecticut defense attorney, Nancy M. Steele, PhD, a Clinical Psychologist and sex offender treatment specialist, and Rev. James L. Powell, PhD, DD, a Methodist Minister whose Atlanta- based church welcomes sex offenders but under strict perimeters. Powell is also a licensed clinical psychologist and regularly counsels with former sex offenders. “There is much that the church and other community based organizations can do to mentor and help former sex offenders who want to reform,” thus increasing the net of safety that we all seek when dealing with those who have previously offended, particularly when the offense involves children.” Another presenter Mary Duval of Oklahoma, CEO of SOSEN, another sex offender advocacy group, became vehement in her fight for change, when her teenaged son Ricky was convicted of having sex with a younger teenaged girl. At that time there were no “Romeo and Juliet” laws which exempt consensual teenage sex from prosecution. Duval’s lobbying efforts help create these laws. Though completely blind, Duval actively lectures and campaigns throughout the United States, she also co-hosts weekly radio shows on ARC Talk Radio which focus on human rights and sex offender issues.
The conference concluded Monday after concentrated lobbying efforts on Capitol Hill. Portions of the Conference were recorded and links will soon be available online. These and other information about RSOL are available at their national website www.reformsexoffenderlaws.org .