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December 11, 2018

Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.

December 11, 2018 at 05:17 PM | Permalink

Comments

lifetime sex-offender registration - is this for violent offenders, non-violent offenders, murderers, or all offenders? What is the definition of lifetime, like prison terms? What about those that have been found innocent after serving time?

Posted by: LC in Texas | Dec 14, 2018 6:13:24 PM

To respond to LC in Texas,

Lifetime registration is applied in all cases, violent, non-violent, you name it. For example in New York, there are 3 levels. Levels 2 and 3 are all lifetime registration. Often, people with "sexting" or pictures charges are determined to be level 2 because of registry calculations done by sex offender management boards, which are often not backed up by any real recidivism data.

Posted by: Chris | Dec 17, 2018 11:52:09 PM

I'm a TIER-III Sex Offender in Ohio. Have to register for life, every 90 days and classified as the worst of the worst. I take pride in being a TIER-III sex offender, because I am the person that is going to crash this entire system and make it burn eternally.

In 2010 I was convicted (because I plead guilty against my attorney's advice) of an F4 - Unlawful Sexual Conduct with a Minor. In that case, the girl was 15 years old and I was 22 at the time. She presented herself as a 21 year old, made a fake MySpace profile that even had nude pictures, she drove, brought me beer, cigarettes and at the time of HER arrest (because she was a runaway juvenile) they discovered that she had a fake I.D. that even showed her being 21 years old. I plead guilty because I had another pending case in Federal Court - a case that is not a sex offense, but was a white-collar crime computer case. The federal government investigated me for years stemming from that operation I ran, seizing computers, servers and virtually any and all devices I had. Not a single shred of Child Porn or underage materials was found, simply because I'm not a sex offender, I do not, I have not and never had a desire to have sex with underage girls. Simply put, I was disgusted by what happened when I found out her true age and my only reasoning for pleading guilty was because after sitting in jail for 3 months without the ability to post bond due to my Federal hold, I decided to plead guilty. I received a 0 day jail sentence and was immediately transferred to the Federal Bureau of Prison to complete my sentence.

Then in 2015, I broke the law again. This time running another operation, a white-collar crime prostitution business. In this instance all 3 of the women who were busted along side of me were willing adult able bodied women. I plead guilty to an F4 promotion of prostitution, received zero days in jail again and then discovered that I was being enhanced to a level Tier III sex offender. Even though my Promotion of Prostitution conviction was a non-registerable sex offense, the Adam Walsh Act stipulated that I needed to be enhanced as a result.

So here I am, labeled as a Tier-III sex offender. Labeled as someone who rapes, kidnaps, or even kills an unborn child from a vicious sexual attack. What a great system this is right? What a righteous system?

It doesn't bother me though, it's irritating, it's not fair, but it doesn't really get on my nerves like you might think. I'm a savvy individual, have no probation or parole officers, can come and go as I please, get to live my life with my wife and 3 children and run a couple prominent companies. In any case, I just felt the need to reply here, for anyone who cares to read this. I am the individual who can and will make a difference with the system. Not for the people who deserve to be on it, but for the few (probably 1-2% or less) that have found themselves in my situation, with zero legal recourse. I am the guy that's going to turn this into a business and I'm going to do it with through mockery and embracing what I am.

To any state or federal agency, judge, lawyer, whoever reading this. Enjoy. Your system is going to become a laughing stock once I do what I do. Just wait and see. Those in the fed's know who I am if they read this. They know what I'm capable of. I'm not going to just sit back and take this on the chin, I'm going to have fun with this, I'm going to maximize this, I'm going to do what I do best and twist and turn this all the way around.

I'm Coming...

Posted by: I'm Coming | Jun 22, 2019 8:11:33 AM

Enjoyed your comment!!!

Posted by: jen | Aug 7, 2020 3:11:01 PM

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