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July 13, 2011

Ohio Supreme Court finds new Ohio SORNA-compliant sex offender requirements punitive

In a ruling with potential national implications even though based only on state law, the Ohio Supreme Court this morning in a 5-2 opinion decided that the state's new sex offender registration requirements were punitive and thus could not, as a matter of Ohio state constitutional law, be applied to offenders who committed offenses before this new registration law was put into effect. The majority ruling in Ohio v. Williams, No. 2011-OHIO-3374 (Ohio July 13, 2011) (available here), concludes this way:

[Under the new law], offenders are no longer allowed to challenge their classification as a sex offender because classification is automatic depending on the offense.  Judges no longer review the sex-offender classification. In general, sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places. R.C. 2950.06(B) and 2950.07(B).  Furthermore, all of the registration requirements apply without regard to the future dangerousness of the sex offender. Instead, registration requirements and other requirements are based solely on the fact of a conviction.  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.  We conclude that as to a sex offender whose crime was committed prior to the enactment of S.B. 10, the act “imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction,” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37, and “create[s] new burdens, new duties, new obligations, or new liabilities not existing at the time,” Miller, 64 Ohio St. at 51, 59 N.E. 749.

No one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional.  Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570.  When we consider all of the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.

The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders.  It may not, however, consistent with the Ohio Constitution, “impose[] new or additional burdens, duties, obligations, or liabilities as to a past transaction.” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37.  If the registration requirements of S.B. 10 are imposed on Williams, the General Assembly has imposed new or additional burdens, duties, obligations, or liabilities as to a past transaction.  We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.

July 13, 2011 at 01:40 PM | Permalink

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Comments

I'll apologize for my ignorance now and get it out of the way.

With that being said, could someone please explain how this is different than the Bodyke ruling that was made about a year ago?

I'm always glad when a court tells the lawmakers that they've overstepped their bounds with these laws, it just seems this was already dealt with.

Posted by: Questions Authority | Jul 13, 2011 4:13:12 PM

Questions Authority,

The case I found regarding Bodyke dealt with whether the legislature can have the xecutive reclassify offenders. The court ruled that only courts are in a position to modify court orders. This case, on the other hand, would appear to deal with an entirely different situation of applying new regulations to offenders who were properly categorized by the courts, at least as far as it goes. The court is only going to deal with the case in front of them, the legislature is free to keep trying, or hope for a more favorable court or whatever. So I do see a fair amount of difference, which does in fact necessitate a new cchallenge.

Posted by: Soronel Haetir | Jul 13, 2011 5:44:55 PM

Application of this decision seem to be far reaching. Instead of limiting law makers against modifying court orders, the Ohio Supreme Court found the entire SORNA-compliant registry, as it was implemented in that state, to be punitive and violate an ex post facto clause found in the State Constitution.

This decision reaches everybody who was placed under more burdens, duties, obligations, and/or liabilities because of S.B. 10. Further, it calls this SORNA-compliant law punishment. Punitive aspects of the registry have been previously ignored because, so long as sex offender registry laws were civil monitoring and not punishment, these laws could be changed as many times a law makers wanted without concern over retroactive punishment claims.

Now it seems, at least in Ohio, that the punitive nature of SORNA is acknowledged and sex offenders cannot be continually re-punished for the rest of their lives.

Posted by: Eric Matthews | Jul 13, 2011 6:13:19 PM

Thumbs up for the Ohio Supreme Court!

SORNA clearly violates the ex-post-facto clause and adds punishments beyond which a defendant could have faced at the time of sentencing.

Under SORNA guidelines, a person convicted of a sex offense in 1968, and who has never been informed of SORNA, could land in federal prison. SORNA is yeat another example of how legislators will toss a political football to gain recognition.

Why not go back to 1968 and track every murderer, habitual criminal, and violent offender who moves across state lines then punish them under SORNA?

SORNA was legally flawed from the very start. Why else would a law passed in 2006 only be accepted by 5 states by 2011? Those 5 states sold out for the federal funding and not resisted it for legal justification.

The Ohio Supreme Court made the absolute correct ruling. Other states need to follow that same logic!

Posted by: Joe Public | Jul 13, 2011 7:21:06 PM

This could be the key that unlocks the door to the federal funding for the AWA to many states that have held back. It will be easier and/or rather cheaper for them to fall into compliance now using this ruling.
That being said there are probably tier 1 offenders that were looking forward to only having to register for 10 years instead of life had their state implemented the AWA.

Posted by: Mike | Jul 13, 2011 8:30:13 PM

not really mike. since in the final version and opinion from the attorney general the law was changed.

now instead of it setting standards. it only sets minimum standards. in states like florida where registration is LIFETIME that will not change. That is one of the reason's florida was able to almost immediatly become compliant. they already EXCEEDED the AWA requirements!

Posted by: rodsmith | Jul 14, 2011 1:13:48 AM

You brought up something I am curious about 'rod'.

I've never seen or heard it explained when an offender moves from state to state.

Let us assume an offender from Ohio has moves to a state where the requirements are much harsher and longer. Florida for example.

If the Ohio offender moves, do the registration requirements of his home state follow him to his new state or do the rules from his new state kick in?

Our fictional offender could have served his time in jail or on probation and even completed his registration requirements to where his name would be deleted from the roles. It would be unfortunate to move only to be subjected to more and increased requirements.

Posted by: Questions Authority | Jul 14, 2011 2:33:25 AM

Questions A., I believe the sex offender has to abide by both states. Just moving to a different state does not eliminate the requirement to register in the sentencing state. And if he moves to another State where he would not have been determined to be a sex offender (for example if he was a Romeo), he likely still must register in the receiving state as the receiving state honors the sentencing state's decision.

If someone moved from FL where the registry needs to be updated every 3 months to Texas where the registration requirement is annual, he would need to continue to register with Florida 4 times a year and Texas just once. But for more specifics, you'll have to read the statutes in each state for yourself or contact the authorities or lawyers for clarification.

But the registries are getting harsher and not softer. Since it is generally not seen as an ex post facto violation to change the registry's expiration date, it's probably safer to assume that an offender won't actually be able to get off the registry. By the time he's eligible, the registry may very well be life-long.

This provision also potentially falsely inflates the number of sex offenders in the Country if out-of-State registrations are not excluded.

Posted by: Anonymous | Jul 14, 2011 3:28:35 AM

Hello A, We moved to a new state in 2005 and asked our attorney about this same question of registry. We were told we only had to register in the NEW accepting state and abide by their requirements. This issue needs to be clarified. Because there may be many who may nor be aware of double, or triple registry depending on how many states one has moved from. If this is the case, punitive and hardship are evident. I recall asking the judge if we moved, what would happen, and the judge said we would be under the jurisdication of the new state registration requirements. However, if one has completed their registration in the state of residence, one would be "free" of obligations to register no matter what state they moved to in the future.

Please clarify legally. Thank you

Posted by: Faith | Jul 14, 2011 8:38:14 AM

So essentially what I am reading is there are two possibilities.

1. If an offender still has time left to register, he would be at the mercy of registering in the new state with their rules. Even if in the original state he only had one year left, he could move and be subjected to potential lifetime requirements.

2. If an offender has completed all registration requirements though, he is free to move and not be subjected to requirements in a another state even if they were longer.

Posted by: Questions Authority | Jul 14, 2011 10:52:22 AM

That was our understanding. My case did not go to Federal court for sentencing, but a State court. However, with laws continuously being changed at both State and Federal levels, and all new laws usurping the existing laws that were applied to the offender at the time of the registration requirement, it is very difficult to know what really is correct. It is difficult to abide by the law when the law keeps changing. And now, I am wondering, if one moved to another state after the registration period was over, using the law as it applied to them at that point in time, whether one would be in violation of registration in the new state and runs the risk of incarceration for not registering. This is a very frigthening situation. Also, state registries and levels of offense differ from state to state and the Federal registry.

What happens at the Federal level after one completes registration requirement?Is one free to live anywhere in the US, free from having to register in any of the 50 states or territories under its jurisdiction?

Who holds the ultimate and definitive "rule of law."

Posted by: Faith | Jul 14, 2011 12:50:45 PM

from what i've read around the country what happens is the harsher rules appply!

just like in the individuals classification. if they are low lvl and move the new state usualy moves them up. if they then move again it will NEVER go back down. ONLY up.

same with registry requirments. if you move from a state were you don't have to register and then move to one where it is required NOT only will you have to register but if you were to move BACK to the original state it would then require you to register becasue the one you were just did REQUIRED IT! never mind that you didn't have to before you left!

Posted by: rodsmith | Jul 14, 2011 1:17:28 PM

Without a definitive set of rules regarding this, I have to wonder if this was intentionally set up as a trap to offenders even though they may be free and clear.

The other possibility is that things are so screwed up that even the powers that be have no idea how to apply things.

Personally, it would not surprise me if it is a hybrid of the two scenarios.

Initially it was (and still is confusing) but the states saw an opportunity to use their own confusion against the offenders.

Posted by: Questions Authority | Jul 14, 2011 2:45:03 PM

Let's be clear:

Can any of the intellectual geniuses here who post comments about SORNA explain why that a Federal Law passed in 2006, has only prompted a handful of States to comply by 2011?

Could it be that this law violates long-held constitutional rights?
• Ohio Supreme Court just ruled in that favor.
• Indiana Supreme Court ruled in that favor 2 years ago: http://indianalawblog.com/archives/2011/01/the_ilb_had_a_v.html

Could it be that it costs more to implement than the Federal funding received?
• Texas ruled in that favor.
http://congress-courts-legislation.blogspot.com/2011/01/upcoming-hearing-on-sorna-various.html

SORNA would be legally on track if it applied to offenders who committed crimes AFTER the law was passed. SORNA is legally derailed by forcing restrictions on those convicted BEFORE the law was passed. It's just that simple.

Posted by: Jane Public | Jul 14, 2011 8:39:17 PM

jane let's not forget that one of the TWO ORIGINAL states that created the registry Alaska has now went back and declared the U.S Supreme court messed up and declared it is a punishment and not retroactive in the very case that originaly went the other way at the u.s. supreme court!

LOL

Posted by: rodsmith | Jul 15, 2011 12:55:06 AM

I was convicted of a sex offense in the state of Ohio when I had turned 16 years old, the conviction was statutory rape because I had consentual sex with an 11 year old when I was 15. I was required to attend a sexual treatment facility till I was 18 years old and required to register as a sex offender for the next 10 years. after about 3 years in the sex offender registry the sherriffs departement in Shelby county told me that the "feds" had extended the minimum to amount of time in the registry to 15 years (constitutional violation) and they had tacked that on to my sentence. even though I had to register, it was only on the "Juevenile" sex offender registry (meaning it was not to be made public). I moved to Kentucky at the age of 19. am 24 years old now and I am a life-time registrant in the state of Kentucky on the public registry, because Kentucky state law states that "ANY" offender that moves into Kentucky from out of state reguardless of their conviction or age at the time of conviction is required to register publicly for life.


What Im getting at is that the only way to exempt my juvenile record is to challenge the conviction of my offense in the Ohio Judicial system. it is unfair for a child to have to register their whole life because of a non-violent juevenile offense.


I have a spotless adult record, I dont break the laws, and all I want is my life back!

Posted by: Dustin V | Jul 15, 2011 6:05:29 AM

@ rodsmith

"if you move from a state were you don't have to register and then move to one where it is required NOT only will you have to register but if you were to move BACK to the original state it would then require you to register because the one you were just did REQUIRED IT! never mind that you didn't have to before you left!"

If the state you live in does not have a registration requirement, and you move to another state that requires registration and then back to the state without the requirement, how would the state enforce a law that is not on the books in that state? Furthermore, since when does a state enforce the laws of another state? If you live in a state that requires lifetime registration, and move to a state that requires you to register for 10 years, then you register for 10 years. This I know to be true because in NC, the requirement for most offenders was 10 years and you fell off the list automatically - now you have to petition the court. When NC modified its registry law in 2006, it said that offenders moving to the state had to register for offenses committed on or after Dec. 1, 2006. That loophole was closed and requirement is required for 10 years.

Posted by: Huh? | Jul 15, 2011 4:31:12 PM

it's easy huh! just because one person did not have to register in a state does not mean the state does not have a registation law or requirment. Just that becsue of their law. you don't have to register. But once you leave and go ot a state that makes you register. Your stuck when you return since most state's have laws that state "you are required to register if you have been required to register an another state!" which gives you the shaft but good!

Posted by: rodsmith | Jul 15, 2011 8:37:13 PM

I've never seen/heard that before. Being required to register when moving to state b from state a, although state a does not require registration is common. If you move from state b back to state a, and state a does not require you to register, then you don't register. Its based off the conviction, not where you lived previously.

Posted by: Huh? | Jul 15, 2011 9:32:25 PM

sorry huh but since mid 1990's ALL U.S. States have had some verison of megan's law. what changes from state to state is who is required to register and for how long and how far back their verion reaches.

ONLY in sex offender laws it is allowed to force someone to register in a new state when their crime was in a diff state that didnt' even require registration. Some states even force you to register in their state because you were registered in your origin state even though in the new state you have just moved it. what you did wouldnt' even be a crime or require registration. The simple fact that you were required to register somewhere else is enough.

look at ohio. they just had 30,000 lawsuits because thanks to AWA they tried to illegally reclassified 10 of thousands of people who had never had to register before. They went from NO registry NO NOTHING to suddenly being considered the worst of the worst with lifetime registration and having to visit the local police department for rebooking every 30-90 days for LIFE with nothing but a letter as notice in a lot of cases or crimes that were 10-20-30 YEARS OLD with no new convictions EVER. it's taken years but Ohio just TOSSED the whole thing as a retroactive PUNISHMENT.

Posted by: rodsmith | Jul 16, 2011 1:46:28 AM

The registry is constitutional because it is civil and not criminal. A registrant is free to move, travel and mingle as they wish without restraint, after the full completion of their sentence.

What a bunch of lies by the USSC, We have lost the search for truth, and Congress and the Justice System LEAD THE WAY. (NSS - No S__t Sherlock).

This is but a small example of the many lies and platitudes fed to us by gubermint officials.

Posted by: albeed | Jul 16, 2011 10:53:34 PM

yep albeed and that is why two diff state supreme courts have now ruled it an illegal after the fact punishment NOW please of all the little add-on's from the last 10 years since 2002. Including Alaska one of the ORIGINAL state's that started it!

Posted by: rodsmith | Jul 17, 2011 1:14:11 AM

I agree. Initially, the widespread ruling was that SORNA was merely "civil and regulatory" – not punitive.
However, punishment (Federal Prison) was imposed on anyone who violated SORNA.

A blatant contradiction in terms!

The SORNA law was purposely written ambiguous, so that state lawmakers could have wiggle room.
However, ex-post-facto is NOT ambiguous. SORNA violates ex-post-facto in spirit and in application. Period.

The U.S. Supreme court recently addressed the "regulatory vs. punitive" issue raised – yet, completely tip-toed around the ex-post-facto clause.

http://topics.law.cornell.edu/supct/cert/08-1301

The ex-post-facto clause, and regulatory vs. punishment will continue to be a hook in SORNA!

SORNA is legally flawed and that is the main reason why few states have adopted this Federal law since 2006.

Posted by: Jane Public | Jul 17, 2011 8:27:29 PM

how true jane public! Just about every law passed covering sex offenders in the last 10 years or so is factually ILLEGAL based on the original 2002 smith u.s supreme court decision!

http://www.law.cornell.edu/supct/html/01-729.ZS.html

notice this major part!

"The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision."

Notice what was legal was

no in person update
free to move where they wish,
free to LIVE where they wish
free to WORK where they wish

with no supervison

what we have now is

IN PERSON updates required upon pain of PRISON for failure to do so

they changed monthy meeting at Probation/parole office to less frequent visits to local police station

RESTRICTIONS on WHERE TO LIVE upon pain of PRISON for failure to obey
RESTRICTIONS on WHERE to WORK upon pain of PRISON for failure to obey
RESTRICTIONS on WHERE to even WALK upon pain of PRISON for failure to obey!

sure as hell sounds like PROBATION/PAROLE to me!


but the even bigger ILLEGAL part is this little bit of FRAUD!

"(b) The Alaska Legislature’s intent was to create a civil, nonpunitive regime. The Court first considers the statute’s text and structure, Flemming v. Nestor, 363 U.S. 603, 617, asking whether the legislature indicated either expressly or impliedly a preference for one label or the other, Hudson v. United States, 522 U.S. 93, 99. Here, the statutory text states the legislature’s finding that sex offenders pose a high risk of reoffending, identifies protecting the public from sex offenders as the law’s primary interest, and declares that release of certain information about sex offenders to public agencies and the public will assist in protecting the public safety."


sorry but WHAT HIGH RATE OF REOFFENCE! pretty much every study done since the mid 1990's says that's a lie and out and out FRAUD!

UNLESS you call 5-15% a HIGH RATE OF REOFFENCE!

Posted by: rodsmith | Jul 18, 2011 1:37:08 AM

What will need to take place in the leagal world to reppeal the law at Federal and State level?

If few states have adopted SORNA, but instead have chosen to apply variations of the law in terms of classification level, length of registration, frequency of registration, living and working restrictions, driver's license SO stamp, driver's license SO plate, GPS monitoring, lie detector tests, entering state travel notification, computer use monitoring, social media restrictions, etc.and these laws keep changing at the State level, how does one comply?

Is it possible that one ruling at the Federal level will address all these variations that have been applied without fully adopting SORNA in one ruling, and offenders will abide by one legal Federal law in the US? Or, will it always be a state by state challenge?

Posted by: Faith | Jul 19, 2011 8:35:42 AM

unfortunatley faith it's going to be BOTH at least till someone with the case and the million dollars to take it back to the U.S. Supreme Court where they can be FORCED to look at their 2002 decision and what we have now and rule like alaska has and now ohio and a couple of other states...that it may not have been punishment at the beginning it has in fact as well as law BECOME a punishment!

Posted by: rodsmith | Jul 19, 2011 4:15:47 PM

Long time, no post. Greetings Rod, QA and others. This week in the mail, my brother received his release letter. He shared a copy with me, and sans the name and address, I will share with all of you what it said in regards to out of state registration, etc.

[QUOTE]
August 8th,2011

On July 13, 2011, the Ohio Suprem Court issued a ruling in 'State v Williams' holding that Ohio's version of the Adam Walsh Act (Senate Bill 10) is unconstitutional as applied to offenders who committed their offenses prior to the enactment of Senate Bill 10. Any offenders who committed their offenses prior to SB 10 will be returned to their prior Megan's Law classification.

We have determined that, based on your prior Megan's Law classification, your registration period has expired, and accordingly you no longer have a duty to register in Ohio.

Please be aware that this decision only affects your duty to register in Ohio. If you decide to move or visit another state, you may be required to register depending on that state's rules regarding sex offender registration.

Sincerely,
Steven Raubernolt, Deputy Superintendent of BCI&I
[QUOTE]

LOVE the "sincerely" part. I am surprised they did not open the letter with "Dear.."
Anyhow, thats what Ohio is saying. If you stay in state, you are fine. If you move elsewhere or EVEN VISIT, you will have to check with the authorities to see what your registration duties are, if any. ("You MAY be required..")

I imagine visitation still goes by the same standard of being domiciled over 3 day period in any state. I imagine, unless pulled over on the road, etc.. it would be very hard to determine who a sex offender is or is not that's just visiting. And of course, even if that does happen, those being questioned can say "just passing through, sir." and avoid any trouble. Then get the heck out of Dodge.

Of course, if that state has already said they will not comply with retroactive application of AWA, you are safe and need to make no such contact and live your life. Now what we need is a list, state by state, of those states that have retroactively implemented AWA on pre 2007 offenders and that have not been overturned yet, and those that will not implement AWA retroactively. (Like Indiana.) It would be a great resource for everyone this affects, perhaps DAB or another legal blogger would be willing to do the leg work?

I will contact Doug and let him know this info as well.

Stay strong, people, and keep living your lives.

Posted by: tbucket | Aug 12, 2011 4:51:13 PM

My son is going in for sentencing here in Florida next month. He plead guilty to .. well, he used to use limewire and in his 2331 he thought were music there were 11 cp.. So, now he'll be put on the list for life and hopefully get no jail time.

I'm hoping they let him move to New Mexico. At first the attorney didn't see a problem but seems more people are getting refused that option of moving out of state.
Anyone have this kind of thing happen?

Posted by: Nakohichi | Aug 17, 2011 3:04:36 PM

Very few States will approve any convicted sex offender on supervised release (probation or parole) to relocate to their city. Your son is better off completing the supervised release requirements, and then move elsewhere.

Posted by: Jane Public | Aug 17, 2011 7:39:38 PM

Sex offenders who are required to register, should understand that they hold a vested interest in the overthrow of capitalism through socialist revolution, which will eradicate such draconian laws as well as abolish the age-of-consent laws.

Posted by: Arthur Conners | Dec 25, 2012 6:06:57 PM

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