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.
This is a letter we sent today to the Ohio Representatives on the eve of the Criminal Justice Committee hearing of Wed, Feb 9th, 2011. We urge all readers to write, email and call the Representatives listed on the previous posting to strongly oppose this House Bill 77:
I lead an organization named ConstitutionalFights which strongly opposes House Bill 77, introduced by Rep. Hackett. This bill will come before the House Criminal Justice Committee on Wed. Feb, 9, 2011.
HR 77 is the Legislature’s latest attempt to re-classify citizens who have a sex offense conviction in their past. We strongly urge you to oppose advancement of this bill.
The intent of HR 77 is very similar to that of Senate Bill 10, which was ruled as a constitutional violation on June 3, 2010 by the Ohio Supreme Court in Bodyke vs, Ohio ( R.C. Chapter 2950 — Sex offenders — R.C. 2950.031 and2950.032 violate separation of powers by requiring executive branch to reclassify sex offenders already classified by court order).
The difference with HR 77 is that it orders all affected citizens to appear in court for a second sex offender classification hearing.
This is an attempt to bypass the Separation of Powers violation.
But in the 2010 Ohio Supreme Court ruling, the challenges of Due Process, Double Jeopardy and Ex Post Facto violations were not
even addressed by the Court. Had these challenges been decided, they would certainly have resulted in similar nullification of the law.
HR 77 requires any citizen with a sex offense who had not matriculated off the sex offender registry by January 1, 2008 to appear before a Court for a second sex offender classification hearing. A majority of these individuals had fulfilled all requirements put upon them by the sex offender laws in place at the time of their conviction or plea. To haul them back into Court for a new classification hearing where a new set of registry requirements would be imposed is a violation of the Ohio and U.S. Constitutions. This bill violates the Due Process, Double Jeopardy and Ex Post Facto clauses of our Constitutional rights.
In addition to the constitutional violations of any law which attempts to retroactively reclassify offenders and to impose new and more stringent sex offender registry requirements, there are several other factors which our Legislature must consider when drafting sex offender legislation.
Firstly, there is no empirical or statistical data or evidence to support the contention that public sex offender registries have any
effect on recidivism or public safety. In fact, the only data correlating these two factors is in opposition to popular conception.
Publicly-accessible sex offender registries actually serve to isolate humiliate individuals to the point where they cannot build family and social support systems necessary to live productive and law-abiding lives. Along with residency restrictions, these public registries are no less than a Scarlet Letter which brands individuals, often
for a lifetime from normal social life and interaction.
Public sex offender registries do not prevent crimes. National media sensationalistic news reports of hideous sex offenses actually support this contention. In recent years, the highest profile news stories of sex offenses have involved men who were actively compliant registered sex offenders. These registries are simply a means for legislators to appear tough on sex crimes and an excuse for the public to feel better.
But the harm they do in the lives and families of tens of thousands of Ohio citizens caught up in the registry net is dramatic.
A popular myth is that sex offenders have a high recidivism rate. The statistical data proves this to be false. The U.S. Department of Justice statistics refute this myth. USDOJ data reports that “Recidivism Rates of Sexual Offenders (5.3% re-arrested, 3.3% of Child victimizers re-arrested)”
The Ohio Department of Rehabilitation study, “Ten-Year Recidivism Follow-Up Of 1989 Sex Offender Releases”, concludes that the recidivism rate for child -victim sex offenders (outside family) for a new sex-related crime in Ohio is 8.7%. The recidivism rate for all sex offenders for a new sex-related crime in Ohio is 8.0%.
Numerous other studies have reported similar data. I can provide official sources.
Finally, this is just morally unjust. Most of the individuals who would be affected by legislation such as HB 77 are those who made a terrible error in their lives many years ago (often times 10 -20 years ago).
They have been living law-abiding, productive lives in the years since they served their debt to society. All of us make mistakes in our lives, yet sex offenders are the only group to which we give no second chance. If the laws are in place at the time of conviction, we have no argument. But imposing new laws in order to recapture those who completed their obligations many years ago is simply immoral and wrong.
I could continue with supporting arguments but in an effort to be concise, I will conclude. I would welcome the opportunity to provide additional supporting information to the Committee members
for their consideration in these hearings. After the 2010 Ohio Supreme Court ruling (Bodyke vs, Ohio) which we fought for 3 years, we have extensive experience in studying sex offender laws, their effects, and the related empirical data within Ohio and throughout the nation.
We urge you to strongly oppose House Bill 77 and any future legislation which attempts to retroactively classify those who have long since satisfied all registration requirements of their offenses.
What is the AWA and how does it affect you?
Overview and History of the Jacob Wetterling Act
Brief Summary of Adam Walsh Act Provisions
The Cost of the AWA
Is the Public Registry needed?
Findings based on the research
Stranger Danger: the Facts
Is the AWA punitive, punishment?
Court victories against the AWA
Collateral Damage of the Adam Walsh Act
Other effects of the registry and the AWA
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:
BLUESHIFT: The purpose and objective of this site is to distribute data on sexual offender registration laws focusing on Ohio. Including the history and status of proposed legislation and court opinions and ongoing litigation.
Sexual Offender Facts Graphs and Statistics with footnotes and references.
“Today in Ohio nearly 25,000 (or 99.99%) of registered sexual offenders DID NOT re-offend. Only .75 RSOs in Ohio recidivate sexually each day. (.75/25000)*100 = 99.99%.”
“The ten year recidivism rate for the group of sex offenders in this study was 11%. Eight percent of the offenders returned for a new crime. Another 3% were revoked for a parole violation that was sexual in nature (sex crime), or a relapse behavior (sex lapse).”
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 email@example.com (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 firstname.lastname@example.org with any advice or willingness to help. Thank you.
The Canadian government’s policies and procedures for the management of sex offenders have been driven by public outcry over highly publicized sex offenses. Craig Jones, executive director of the John Howard Society of Canada, calls the changes typical of the Conservative government’s “opportunistic” justice reforms. “They are characterized by a kind of reactive emotionalism driven by populist sensationalism. This is tinkering gone crazy.”
Legislators must avoid such reactionary responses that are based on public fear of this population because the evidence has been unambiguous- many of the policies that have been devised to protect society from violent sexual offenders are ineffective. These failed policies must be eliminated and replaced with policies based on the best available and empirical evidence rather than a media driven national panic. Furthermore, every individual must speak out against these failed policies and demand reforms that work towards making our communities safer, protecting our children, and respecting the dignity of human beings. We will no longer accept ‘feel good’ policies that protect no one, lend a false sense of security, and help foster an environment that makes our children and communities less safe..
If journalists, child advocates, lawmakers and police services are serious about wanting to protect society, they should turn away from persecution as a means to an end, and demand laws and practices designed to actually prevent crime while protect the right of people to heal and move forward; this focus should be based upon prevention and rehabilitation. Much of this information exists. The money wasted on tracking ex-felons who are unlikely to re-offend could be much better spent on preventing child abuse in the home and by educational programs designed to teach children how to avoid abusive situations and potential threats. Educational programs designed to give our children information about how sexual predation is perpetrated would bring a far better result.
See related post: Sex Offenders Denied Entry to Canada