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September 4, 2007

Notable sex offender residency restriction ruling from Ohio

Among lots of new interesting posts at Sex Crimes is this post noting a significant new ruling restricting the application of Ohio's sex offender residency restriction.  This Cincinnati Enquirer article provides the basics:

An Ohio law restricting where sex offenders can live does not apply to a convicted rapist who was sentenced before the law took effect in 2003, a federal judge in Akron ruled Tuesday.  U.S. District Judge James Gwin said the law, which bars offenders from living within 1,000 feet of schools, amounts to an additional, retroactive punishment for people who already have served their sentences.  He said such punishments violate the U.S. Constitution and impose an excessive burden on offenders that could continue for the rest of their lives.

“The law goes well beyond parole in that it never allows a sex offender to reintegrate into society,” Gwin wrote in his decision.  “Subjecting a sex offender to constant ouster from his or her home seems a significant deprivation of liberty and property interests. “It sentences them to a life of transience, forcing them to become nomads.”

Gwin’s decision directly affects only an Akron man, Lane Mikaloff, who had challenged the law.  But Mikaloff’s lawyers say the ruling could affect thousands of sex offenders in Greater Cincinnati and across the state.

The debate over the fairness and effectiveness of Ohio’s residency law has heated up in the past year as county prosecutors began telling offenders who live near schools and day care centers that they must move....

“The decision is a mistake,” Hamilton County Prosecutor Joe Deters said of the ruling. “I just wish that sometimes they’d think of the kids that get abused.”

A spokesman for Ohio Attorney General Marc Dann said an appeal of Gwin’s decision is likely and urged law enforcement to continue enforcing the residency restrictions.  “We believe it’s constitutional,” said Leo Jennings, Dann’s spokesman. “If someone uses this decision to mount an additional challenge to the law, we’re going to continue to defend it.”

Milakoff’s lawyer, David Singleton, said he intends to do just that.  He said Gwin’s ruling should carry weight in other courts considering whether the restrictions amount to an unconstitutional, retroactive punishment.

UPDATE:  Judge Gwin's opinion is now available here.  It is an interesting read that will likely give the Sixth Circuit a lot to think about.

September 4, 2007 at 10:16 PM | Permalink

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So says The Honorable James S. Gwin:A federal judge in Akron has ruled in favor a sex offender in a residency case. Lane Mikaloff filed a lawsuit after he was ordered out of his home because he lives too close [Read More]

Tracked on Sep 5, 2007 10:19:28 PM

Comments

"“The decision is a mistake,” Hamilton County Prosecutor Joe Deters said of the ruling. “I just wish that sometimes they’d think of the kids that get abused.”"

This is what I am talking about. Rather then explain what he thinks the judge's error is, he talks down to the public. If we were to take what this guy says at face value, he would be urging a judge to ignore the constitution and just "think of the children." I am sure that the briefing is much more intelligent, but he thinks that the people are just too damn stupid to actually understand his argument. Maybe they are.

Posted by: S.cotus | Sep 4, 2007 10:41:19 PM

Reich Decrees New Penalties

Punishment More Server for Many Crimes

BERLIN, Nov. 14. (Exclusive)--
Chancellor Hitler's government today issued several new decrees dealing mostly with Penal code reforms and marriage laws and providing "sterilization of those guilty of sexual crimes and sterilization of habitual criminals."

The decrees also provide for more severe punishment for all varieties of crimes, including cruelty to animals and vivisection [save that for humans]. Drunkenness will no longer be allowed as an excuse to reduce the severity of punishment.

Marriages in name only will henceforth be annulled in Germany. (Los Angeles Times, Nov 15, 1933.)

And for further fun reading, try the Los Angeles Times Sunday Magazine, Aug 11, 1935:

"Why Hitler Says: 'Sterilize the Unfit!'"

Could our Supreme Court be wondering now if it opened an ex post facto can of worms? Or maybe our Justices will think gas chambers are merely the ultimate civil commitment.

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can execute them now so they don't have to wait. That would far more humane. The principle that sustains compulsory decapitation is broad enough to cover cutting the Neckopian tube. Jacobson v. Massachusetts, 197 U.S. 11. Enough is enough."

Posted by: George | Sep 5, 2007 4:40:52 AM

Thanks George. If the Nazis did something, that automatically makes it evil. It's therefore very important to know that the Nazis punished their criminals so that we can stop immediately.

I have no clue where your "Neckopian tube" quote comes from, but it's certainly not from Jacobson v. Massachusetts.

Posted by: | Sep 5, 2007 8:24:34 AM

I believe that what is meant is the famous or infamous statement of Justice Holmes from Buck v. Bell

"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough."


Buck v. Bell 274 U.S. 200, 207, 47 S.Ct. 584, 585 (U.S., 1927)

Posted by: Michael Levine | Sep 5, 2007 11:07:18 AM

I'm concerned that the zoning legislation doesn't go far enough. What's to stop a former sex offender from walking to a school? I say we just cut their legs off. Then we can deny them wheelchairs. That way it'll be harder for sex offenders to catch children.

If you don't support this, you're in favor of child rape!!!!

Posted by: CJT | Sep 5, 2007 4:10:12 PM

That's it, Michael, though no amount of wordplay can be as chilling as the original since we know how it inspired Hitler and know what he ultimately did with that inspiration. That Buck v. Bell is still good law makes it all the more creepy.

Note to "|", are you saying Germany did not punish criminals before Hitler came to power? I think sometimes Wal-Mart must sell cloned logic by the can and it must be addictive.

Posted by: George | Sep 6, 2007 1:02:06 AM

“The decision is a mistake,” Hamilton County Prosecutor Joe Deters said of the ruling. “I just wish that sometimes they’d think of the kids that get abused.”

The statement reveals an alarming ignorance of the position taken by many child advocacy groups who have, after study, found residency restrictions serve to INCREASE the risk of harm coming to a child.

Posted by: Ilah | Sep 6, 2007 7:08:53 AM

Ilah, You are probably correct on the facts, but as we see, this isn't about "facts" -- or "law" -- his statements are politics. So, let's just chalk it up to politics. Mmmkay?

Posted by: S.cotus | Sep 6, 2007 9:49:19 AM

I suppose we could take so simple a path. After all, "playing politics" is no longer an insult, nor even an excuse, but an expectation.

However, I find a far more lively discussion can be had with a politician when I ask if he's simply ignorant of the facts, or intentionally lying about them. 'Tis one or the other.

Posted by: Ilah | Sep 6, 2007 12:35:15 PM

"Injustice anywhere is a threat to justice everywhere." -- Martin Luther King, Jr.

When they took away the 4th Amendment
we were quiet
because we didn't deal drugs.
When they took the 6th
we were quiet
because we were innocent.
When they took the 2nd
we were quiet
because we don't own guns.
Now they will take the 1st


To the putzs that think that some or all rights can be taken away from a few in an after the fact manor. Bite your tongue, yours may be next. I'm a IT Professional at a local community college.

Posted by: I'm | Sep 6, 2007 11:22:27 PM

I applaud this gutsy judge who did what is constitutionally correct in regard to these residency restriction laws. I hope this case decision will set a precedence for all future lawsuits.

Condemn and put-away for life the offender that commits a sex crime today, but according to the U.S. Constitution you cannot retroactively restrict a person who has paid their dues for their crime many years ago, moved-on with their lives and has abided by the rules according to the law since.

I hope all legal council will use this case as a tool to “free” all affected ex-offenders and their families from the homelesness and ostracism.

Posted by: Buzz | Sep 17, 2007 8:47:51 PM

Ran across this article; may or may not be of value.

Posted by: Yolanda Bailey | Nov 15, 2007 5:00:57 PM

Thank you for this great news. Now, if all states will do the same.. and also, we need the USSC to rule the same with the Adam Walsh Act, and SORNA

Posted by: Citizens for Change, America | Apr 21, 2010 11:41:59 PM

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