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June 3, 2010

Ohio Supreme Court declares unconstitutional changes to state sex offender rules pushed by feds

The Ohio Supreme Court handed down an intriguing sex offender registration ruling this morning in State v. Bodyke, No. 2010-Ohio-2424 (June 3, 2010) (available here). The Ohio Supreme Court does everyone the favor of producing an official press release with its decisions, and the Bodyke press release summarizes today's ruling this way:

In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

Though a "narrowly tailored" decision, this ruling could and probably should have an interesting ripple effect in state compliance with the federal mandates of the federal Adam Walsh Act.  Indeed, a footnote near the start of the Bodyke opinion highlights why Ohio is something of a path-breaker in this arena:

FN 4: Ohio is the only state to have complied with the [federal AWA] mandate, however. Greg Bluestein (December 1, 2009), “Ohio lone state to adopt sex-offender rules,” in Canton Rep.com, available at http://www.cantonrep.com/ohio/x2072228737/Ohio-lone-state-to-adopt-sex-offender-rules (last visited Mar. 22, 2010). The deadline for compliance has been extended from July 2009 to July 2010, but it appears that many states will still be unable, or unwilling, to comply. Id. For manystates, the costs of compliance with the act will far outweigh the ten percent reduction in funding. The cost for Illinois, for example, has been estimated at nearly $21,000,000 to comply with the Act in the first year, but that it will lose less than $1,000,000 if it does not.  See Liz Winiarski, Facing the Compliance Deadline for the Adam Walsh Child Protection and Safety Act, States are Weighing all the Costs (2009), 14 Pub.Interest L.Rep. 192, 193.

June 3, 2010 at 11:08 AM | Permalink


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I've read through the decision (though I admit I skimmed or outright skipped a lot of the historical fluff).

I understand that those convicted prior to when the AWA was enacted will go back to the previous duration and frequency of registration (once a year for 10 years for "sexually oriented offenders" for example).

What I am not clear on is if the information that is required to be submitted under AWA will be dropped as well (internet modifiers, reporting any volunteer work, etc). If this could be clarified by someone able to dig through legal speak more efficiently than I, it would be appreciated.

Still, I am pleased that a court finally took a stand (albeit a narrow stand) and said that things are getting out of hand with these laws.

Posted by: Questions Authority | Jun 3, 2010 11:26:41 AM

QA- (Great name, by the way) Not sure how that is going to work exactly, but anyone who was reclassified will go back to their pre 2008 requirements. I would think any retroactive additional measures would be canceled by the un-reclassifying of said offenders. If, by the new system, Tier I and II offenders are allowed to eventually remove themselves from the system, then those who were able to do so previous to the AWA enactment would also be able to, provided their original registration requirements were not for life.

This was the ruling my family has been waiting for. Thank God my brother and his family will finally be able to get on with their lives. I am not going anywhere, however, because this is not the only injustice out there on the books. People are still in danger of vigilantism because of the online registry, and I am against that 100%. After seeing my brother get harrassed and threatened by not only neighbors but people he did not know, it is a relief to know that he will no longer have to deal with that. The polixe should know who and where they are if in their time frame of registration, I just don't know if it is good for everyone other swinging jimmy to know because of vigilantism.

Its not over.

I'm still gonna fight for the oppressed. I'm still gonna help those who need it, because there are still people out there who are unfairly losing their liberties, and potentially their lives, over mistakes that are being sensationalized for media and political reasons, and thats not right.

Posted by: tbucket | Jun 3, 2010 12:12:34 PM

A lot of state constitutions have stronger separations of powers provisions than the feds.

Posted by: federalist | Jun 3, 2010 1:01:19 PM

As pleased as I am (as are members of my family who have been waiting on this as well), I can't help but feel the court did a hell of a dodge as well.

I'll admit I am a physics/math person and not a legal scholar, but I have gut feeling that by not addressing the ex post facto or arguments, the door is left open for some sneaky legislation in the future. Perhaps not directed towards sex offenders, but some other group.

One could say there is precedent for not addressing those concerns, but I still feel it is a dodge.

Still, it only takes one argument from the list to cause the law to be rules unconstitutional and I'm happy that one did.

As mentioned in my previous post though, I'm still waiting to see details on this in regards to what information must be given.

I would agree with tbucket in that if the old term and frequency rules are going to be used, then so should the limit on what information is collected. However, what seems logical is not often the course of action taken. Whose to say that the information already collected will be deleted?

Posted by: Questions Authority | Jun 3, 2010 1:18:49 PM

Over 26,000 people in Ohio just got their second chance back that they had taken away by Bush and his lame duck congress. My plea to them: Don't blow this. Your actions effect EVERY sex offender, no matter how trivial or serious the crime, as these ramped up, fear-filled laws have proven. Your behavior effects others lives you never suspected, as their actions also effect you.

Don't you think its time to get on with your lives the right way? Prove the haters all wrong, don't give them the satisfaction, and live law-abiding fruitful lives from now on. Everyone deserves that, especially your families. You now understand that what has happened has taxed the ones you love. Give them something back for their patience and work on your behalf. (Ok, so the last part was kind of my issue, so I suppose I am selfish in saying so.) Give them some piece of mind. And I know you are reading this, bro. I love you man, congratulations.

Thanks to DA Berman for keeping us all informed, and keep fighting for what's right.

Posted by: tbucket | Jun 3, 2010 1:26:33 PM

oops.. I meant "peace of mind" I guess I must have been thinking of the Iron Maiden album.

@QA- agreed... this law would have opened the door for MANY other than sex offenders to be restricvted, reclassified, and re-punished without case review or thought to everyone it would effect. And for that reason , I am also very happy. I would hate to pay a reckless driving fee and have a special license plate because I went 21 over the speed limit 9 years ago.. but this law, if it stuck, would have opened the door for something like that to happen. Scary.

I imagine about 26,000 lawyers in Ohio are about to start figuring out EXACTLY what the limits to pre-AWA convivtions are going to be.

Posted by: tbucket | Jun 3, 2010 1:32:34 PM

nice but my problem is this!

"The reclassification provisions
violate the separation-of-powers doctrine
{¶ 55} The AWA’s provisions governing the reclassification of sex
offenders already classified by judges under Megan’s Law violate the separationof-
powers doctrine for two related reasons: the reclassification scheme vests the
executive branch with authority to review judicial decisions, and it interferes with
the judicial power by requiring the reopening of final judgments. It is well settled
that a legislature cannot enact laws that revisit a final judgment. We have held for
over a century that “the Legislature cannot annul, reverse, or modify a judgment
of a court already rendered * * *.” Bartlett v. State, 73 Ohio St. at 58, 75 N.E.
939. See also United States v. O’Grady (1874), 89 U.S. (22 Wall.) 641, 647-648,
22 L.Ed. 772"

Under this anyone added to the registry where their court ordered sentence didnt' include it. Now MUST be removed. There is NO other way to read this.

from the actualy decision


Posted by: rodsmith | Jun 3, 2010 2:06:27 PM

While I am estatic for the people of Ohio, this is truly a lame victory. Simple for the reasons already stated by the other knowledgeable people here.

Sadly, the Supreme Court DODGED the real issue at hand. Just like in the SCOTUS Carr decision, they found a procedural loophole to throw out a law they KNEW was unconstitutional. I agree with the previous post. What this REALLY does is tells legislature they can continue this CRAP.

We really needed them to say it's punitive. That's it. That one word is all we needed them to say. And they all KNEW it was punitive. Heck, I watched the whole 4 hours. I don't believe a single justice thought this wasn't punitive. But heck, do you think they could say that in the decision? NO They had to hide behind a procedural loophole.


Posted by: Brian | Jun 3, 2010 11:27:43 PM

Agreed. They should not be able to craft illegal laws and let the courts sort it out.. it should be a legal draft, not a 'let's see if this works' BS. In the meantime, like in Ohio, people's lives were on hold for 2 1/2 years just to be thrown out on a loophole, not why the law was unconstitutional, as Brian said. SO the next time an ex post facto violation in a law comes along, those people again or for the first time get their lives put on hold, and endanger them to vigilantism. How about drafting non-illegal laws that punish after the fact and stop messing with people's lives until the "courts figure out its wrong"?

Posted by: tbucket | Jun 3, 2010 11:59:20 PM

tb that won't happen till the 1,000's of individuals being ilegally harassed and violated by these illegal laws start holding these criminal nazi's personally liable for the illegal laws and judgments they write and uphold and make them back out their mouths with their asses.

Posted by: rodsmith | Jun 4, 2010 11:04:41 AM

I agree with Brian. Everyone knows the measures are punitive. To say that however, would show a soft side for the criminal. So while everyone knows it, nobody wants to admit it because its not a good way to win political points. Although with November still several months away, I think they would have been safe in doing the punitive argument since the masses would have forgotten what happened by then (if they were even paying attention to begin with).

So the judicial chose the separation of powers argument to try and win a turf war between them and Ohio Legislature.

Until then, the issue of these laws being punitive will continue to be the 800 pound gorilla in the room so to speak. They know its there, but will do what they can to try and ignore it. Eventually though, that gorilla will go on a rampage and then it will have to be addressed. I look forward to that day since that will be when these politicians will finally be told that these knee-jerk laws with draconian measures must stop and can no longer be an easy way to gain political favor.

Posted by: Questions Authority | Jun 4, 2010 11:33:24 AM

I am glad to see that people who are not sexual predators will not be looked at as one. I think that this is a good thing, because instead of people in our neighborhoods hunting down the sex offender who has sex with someone younger then them, but over the age of consent, our neighbors can know if there is actually a child sexual predator living next to them, and these people who we are worrying about for no reason can have a chance at a life too. I am a firm believer that we should know if our children are in serious danger, but we do not need to ruin someone's life because they are listed as a sex offender, but did not hurt a child or rape anyone. In another consept we need to stop lookin at this people and look at the people our children are with everyday, after all isn't that how we find out who is the real child predators. If we're spending too much time lookin at people who aren't bothering us, we overlook sexual abuse that could be happening to our children from the people their with every day.

Posted by: Amanda | Jun 5, 2010 9:34:01 PM

I was convicted of a third degree felony in Ohio during. 1992(GSI). I took a plea bargain. In 1996 I was taken back to court and labeled predator. I have never had any others brushes with the law.I was released from prison in 2002 after doing the whole ten years.( gsi carried at that time 2 to 10years).The fact that i was labeled predator after only the first offense is rediculous. As far as the law goes where do i stand now? I want to have a normal life. One more little note: during my sentencing the prosecutor requested 60 days in jail for my offense. I tell you that to show that the prosecutor obviously didnt think i was a predator or a threat obviously. I live in georgia now and would like to go back to Ohio to clear the predator label if possible

Posted by: john crawford | Sep 15, 2010 6:52:22 PM

truthfully i should have never had to be classified in megans law. Its double jepardy.I was sentenced in 1992.What happened to the america i used to hold my hand to my heart and say the pledge of allegiance to. Land of the free? Fairest country in the world?:(

Posted by: john crawford | Sep 15, 2010 7:01:42 PM

What everyone is overlooking, or forgetting is this. The courts have come back ten years later. After sentencing is over,and redue their half of the agreement? Should the courts not be honor bound to fullfil their part of the original agreement? It is not ony dobble jeapordy,ex post facto, and a host of other things wrong!
They lump all sex offenders together,this in itself is wrong.
It is a scare tactis that the Bush administration put on all of us. And they get funding for it. By your tax dollars,all from scaring you. Most sex crimes are committed by peope without a record? This is propaganda at it's best.
How you gonna keep someome down in this country, after doing their time?
And why is it only the sex offenders? If you burned down an aprtment complex, and killed a dozen people or more, no one will know once your out. But have sex with someone the state says you can't! Well your thrown in with the worst of em! Why was Satutory Rape done away with? Yeah, we all know there are not any young girls out there doing that. Not in America. Yet the guy gets the raw end of the deal. loose's everything, and the girl goes onto her next older guy. Ghee, this seems fair. In a pig's eye!
Two do the crime,yet only one pays, and the other gets cart blanche?
This needs to be address, and now. They go after them, scarring you into letting them gchange the Constitution to do this. Who will they go after next. If you can't see the wrong in this law, then don't complain when they take your rights as an American away.

Posted by: John | Nov 26, 2010 12:15:40 PM

Hello-I am a resident of Fostoria and I keep up with who lives in my area. I have grandchildren and a five year old daughter that I am concerned for and I do instruct them what to do if approached by any strangers.

I think it does depend on the crime how it should be handled. If it is something that would have been considered a satutory rape back when that was a law, no, they should not have to reclassify, but there are situations that offenders should have to.

There is an offender right here in Fostoria, Robin Tim Scott, who is a repeated offender in FL but moved back to Fosotria, a couple of his victums were under 12 years old and under 16 years old. But, he is allowed to live with someone who has custody of a child who is showing signs and nothing is being done. If someone is an offender and wants to get away with things, Ohio and Monroe MI is the place for them to live!!

Everyone says that it never happened years back, it did, just now you hear more of it, we are teaching our kids differently about speaking up, years back you did not question your elders, and now there are A LOT MORE PEOPLE and it happens more.

As parents, grandparents, adults, it is imporant to teach kids not just don't trust strangers but why not to. Make it known to those who are repeated offenders that they are not welcomed to approach your kids, I have saved emails from those in the area who are (so-called) responsible for following up on these things that prove YOU CANNOT ALWAYS DEPEND ON THOSE "RESPONSIBLE TO PROTECT" to actually do as they should be doing. Don't get me wrong, there are some great officers out there and right here in Fostoria, our Cheif is great, but there are some who are neglectful. Keep a paper trail and make sure it has the dates on it, I saved the ones I have because that child I spoke of does have some family who care about him and are still looking to try and find ways to protect him and if needed I will give them what I have. We need to do our part in protecting our kids.

Online, if I see something that just is not right, I private meessage the child, tell them to go get their parents now and show them what the person is saying to them and not to answer them anymore and I contact AOL. I have taken things to the police that men have sent to my daughter (now in her 20's) when she was much younger, I made a report, older men even after being told her age and that she is not interested trying to talk her into lieing to me saying she is staying with a friend but meet them someplace instead.

We can't stop everything bad from happening, but we can help out the authorities who do care enough to take the time to follow up by making it harder for them to get away with things. We are smarter than they are, we know what is right and wrong, they obviously are not smart enough to even figure that out.

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