Tuesday, June 10, 2008

Ohio Court Rules on Adam Walsh Act

8 May 2008 - Ohio Court of Appeals, Cuyahoga County, 8th Appellate District:

In Ohio, vs Vincent Holloman-Cross, the Court of Appeals refused to recognize the implementation of the Ohio Adam Walsh Act's retro-active application as being punitive in nature.

" The ex post facto clause of Article I, Sections 9 and 10 of the United
States Constitution prohibit:
“1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action. 2d. Every law that aggravates a crime, or makes it greater than
it was when committed. 3d Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when
committed.” Calder v. Bull (1798), 3 U.S. 386, 390.
{¶ 16} The Sex Offender Registration and Notification Act (SORNA) is
contained in the Adam Walsh Act, enacted on July 27, 2006, which requires
convicted sex offenders to register in the jurisdiction in which he or she resides.
SORNA is incorporated into Ohio law. See R.C. 2950 et seq.
{¶ 17} SORNA requires all jurisdictions to maintain a registry including the
following information regarding sex offenders: names and aliases, social security
number, residence, place of employment or school, vehicle information, physical
description, criminal history, current photograph, fingerprints, palm prints, a DNA
sample, and a photocopy of one’s driver’s license or identification card. 42 U.S.C.
16914. SORNA also sets forth the manner in which sex offenders are to register,
namely, every ninety days, as applied in the case sub judice. 42 U.S.C. 16916.
{¶ 18} The Supreme Court of the United States set forth the framework for
determining whether a statute violates the ex post facto clause:

“We must ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings. If the intention of the legislature was to
impose punishment, that ends the inquiry. If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is so punitive either in
purpose or effect as to negate the State's intention to deem it ‘civil.’
Because we ordinarily defer to the legislature's stated intent, only the
clearest proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty.”
Smith v. Doe (2003), 538 U.S. 84. (Internal quotations and citations
{¶ 19} Thus, we must first consider whether SORNA is civil or punitive in
nature. SORNA is codified in Title 42 of the United States Code, a section reserved
not for criminal punishment, but for “Public Health and Welfare.” Furthermore,
SORNA’s purpose is to “protect the public from sex offenders and offenders against
children ***.” 42 U.S.C. 16901. Thus, “[i]t is clear that Congress intended SORNA
to be civil in nature.” United States v. Mason (M.D.Fla. 2007), 510 F.Supp.2d 923,
929. Therefore, we find that SORNA is civil and nonpunitive.
{¶ 20} Furthermore, we must consider whether SORNA’s statutory scheme is
so punitive either in purpose or effect as to negate the intent to deem it civil. A review
of SORNA reveals that it deals primarily with procedural issues, including collection
and dissemination of a sex offender’s information, which is indicative of a civil
statutory framework. Thus, “there is insufficient evidence to transform SORNA from
a civil scheme into a criminal penalty.” Mason. The majority of courts that have
addressed this issue as it pertains to failure to register pursuant to SORNA have
found the same. See United States v. Markel (W.D.Ark. 2007), 2007 U.S. Dist.

{¶ 21} Therefore, we find that SORNA, as set forth in the Adam Walsh Act
does not violate Holloman-Cross’ ex post facto protections. Holloman-Cross’
second assignment of error is overruled"

This decision irresponsibly fails to understand the comprehensive nature and onerous requirements instated on offenders who committed crimes BEFORE this law was passed. The requirement does not involve simple dissemination of information, but a requires past offenders to report in person up to four times a year for as long as he lives, in many cases. And to have his personal information and image posted online as a Scarlet Letter, which exposes him to vigilante violence and societal rebuke. THIS IS PUNISHMENT. And this Court is wrong.