Saturday, February 28, 2009

Ohio Retro-active Sexual Crime Law OK : Sexual Crime Law OK

In a case likely headed for the Ohio Supreme Court, the state's 2007 law toughening requirements for sex offenders to report their address can be applied retroactively, an appeals court ruled Friday.
Even if the original time when offenders had to report has expired, the law is legal and still applies, the Cincinnati-based 1st District Court of Appeals ruled in a unanimous decision written by Judge Sylvia Hendon.

"By their voluntary acts (crimes), sex offenders have surrendered certain protections that arguably are afforded to other citizens. Their convictions of felony offenses put them into a class that has already been deemed to have no expectation of finality in the consequences of the judgments against them," the decision read.

Funny...that's not what the United States Constitution says:
Section 9 - Limits on Congress : "No Bill of Attainder or ex post facto Law shall be passed."

Definition of "Ex post facto":
ex post facto adj. Formulated, enacted, or operating retroactively. [Med Lat., from what is done afterwards] Source: AHD

Nor is it what the Ohio Constitution says:
§ 2.28 Retroactive laws
The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.

The issue is a fight over the rights of convicted sex offenders versus the public's right to know where those sex offenders live, work or go to school.

A decade ago, Ohio lawmakers enacted a law that required sex offenders to register their address. The length of time they had to register depended on the crime committed and other factors considered by a judge - including the likelihood of offenders committing future crimes.

In 2007, Ohio lawmakers amended that law to mirror the federal law - commonly called the Adam Walsh Act, named for the 1981 killing of the 6-year-old at the hands of a convicted pedophile. (This is just an outright lie; the man finally attributed to the Walsh murder had no record of sex crimes and there was simply never any evidence of sex assault in that case!)

The impact of the change was that hundreds of sex offenders in Hamilton County and thousands across Ohio were required to report for longer times - often for life - than originally ordered to by a judge. The new classification was based only on the crime - not on judge's opinions of future danger - and Sewell, who was months away from completing his 10-year reporting requirement, now has to register for life.

He sued, saying the law change can't be applied to him because he already was classified and argued that it can't be applied retroactively or his punishment increased.

The appeals court disagreed, deciding the new reporting requirements are no different than those for enhancements of tax codes, or new requirements for passports or driver's licenses for all citizens.

"They are legitimate exercises of governmental regulatory power to protect a public interest or further a legitimate government interest," Hendon wrote.

Sewell and his attorney, Margie Slagle, disagree.

"These individuals have a court order. That also gave them the right to be done with that duty after 10 years. They have a court order for that," Slagle said, adding that it was improper for Ohio's General Assembly to create laws that violate existing court orders. She likens it to a moratorium on home foreclosures applied, like this law, retroactively.

Slagle will appeal the case to the Ohio Supreme Court. Assistant Hamilton County Prosecutor David Stevenson believes that court will hear the issue.

"I would expect it would be appealed, and I would expect them to take it," Stevenson said.

Friday, February 27, 2009


The fight to defeat these draconian laws is of such great importance that we have now made the decision to start actively soliciting donations. If we are to defeat these abhorrent laws, it will not be "free". Every battle involves a "cost".

If you want to help the fight…
If you do not know how you can help…
If you do not have the time to help…
If you choose to donate....

We Thank You, and promise to be faithful stewards of all resources provided to our efforts.

Donation funds will be used for purposes such as:
Postage/mailings, printing costs, internet costs, research, transportation to legislative and court buildings across the state, legal challenges, and telephone costs , such as the $109 cell phone bill we had in March 2009 due to calling Washington DC Congressmen prior to the SORNA hearing on March 10th.

In Ohio, there are approximately 30,000 registered sex offenders and each one has at least one family member or loved one. If each sex offender in Ohio alone (and each family member or loved one of a sex offender) donated just $1 each, we would have all the financial support we would need to battle and defeat these draconian laws. Sadly however, most people affected by these laws will not donate and will not actively join the fight. Donate below:

If you do not have a credit card, donations can be made through PayPal to:

Sex Offenders Leave City for Country (Oklahoma) : Sex Offenders Leave City for Country;
State restrictions on where they can live leaves them with fewer choices. Others just don't register.

Some registered sex offenders who once lived in Tulsa are moving to neighboring rural counties while others appear to be moving underground, a Tulsa World analysis of Department of Corrections data indicates.

Since 2005, just before the state imposed tough residency restrictions, the number of registered sex offenders in Tulsa has decreased from a high of nearly 600 to about 350. Conversely, business is booming at the sex-offender registration units in the sheriff's offices of neighboring counties.

Osage County Sheriff Ty Koch said, "What we're finding is people are moving out of the cities because they are having a hard time finding a place to live under the statutes." Osage County now has 116 sex offenders registered "and more coming in every day," Brown said.
Why Osage County?
Brown's answers: "Because it is a rural area. Because they can move into a place where there is no school or any kind of restriction. Its proximity to Tulsa."

The migration of registered sex offenders follows a series of state laws that have made it harder for them
to live in metro areas. The laws prevent sex offenders from residing within 2,000 feet of schools, parks or day-care centers.

Koch said the influx is taxing his staff. "The more we get here, the more manpower it takes to track them," he said. Some offenders are trying to skirt the law, he said, adding, "Many are giving invalid addresses."

"I think if they keep making more restrictions, then people are not going to register," the offender said.
"I think if they change it a little bit, more people would register. It's better to know where people's at than not."

Although the number of sex offenders has dropped in Tulsa and Oklahoma counties, law enforcement officials warn that many are just going underground.
"They are still living here," Adams said.
More often now, they are living in Tulsa illegally.

Anyone who thinks these increasingly strict residency restrictions are protecting the public is fooling themselves. As proven here, they move to areas in close proximity to cities or simply go underground. Either way, they are all still around. Banishing thousands of people away from a city's boundaries with these restrictions are not an effective means of dealing with the issue.

WA State Senate Sex Offender Bill To Get Smarter

Washington State Legislature : Senate Bill 5288

SB 5288 - 2009-10- Reducing the categories of offenders supervised by the department of corrections.
Revised for 1st Substitute: Reducing the categories of offenders supervised by the department of corrections.

Senate Bill 5288 will remove authorities from monitoring low to moderate-risk sex offenders, if they have not committed a crime after six months.
The senate unanimously approved the bill 38-8. A house hearing will be held March 4th.

Original Bill :

Visit and search for Bill 5288

Wednesday, February 25, 2009

Ohio Public Defender Indigency Policy

Office of the Ohio Public Defender Policy on Reimbursing Counties for Representation of Indigent Persons at Hearings Pursuant to R.C. 2950.031(E), R.C. 2950.032(E), and R.C. 2950.11(F)(2)

Because the retroactive application of the sex offender registration and notification provisions in Ohio Senate Bill 10 constitutes an additional penalty and loss of liberty for a previously-adjudicated criminal or delinquent act, and because the hearings to contest reclassification under the bill are criminal proceedings, indigent persons are entitled to representation by appointed counsel to challenge their retroactive reclassification under the bill, as they are in any other criminal proceeding. This applies equally to those challenging their reclassification or community notification requirements in either the general division of common pleas court or juvenile court.

Accordingly, the Office of the Ohio Public Defender will reimburse counties2 for counsel appointed to represent indigent persons in hearings pursuant to R.C. 2950.031(E), R.C. 2950.032(E), and R.C. 2950.11(F)(2). All administrative rules governing reimbursement apply, and all required documentation must be properly and timely submitted, including a notice of appointment, an affidavit of indigency, a financial disclosure form (OPD-206R), and an attorney fee application (OPD-1026R).
This policy remains in effect until further notice.

Husted Residency Ruling

DaytonDailyNews : Sec. of State Brunner to decide Husted residency issue.

DAYTON — In a tie vote, the Montgomery County Board of Elections sent the issue of state Sen. Jon Husted's residency to Ohio Secretary of State Jennifer Brunner.

(This means, of course, that Mr. Husted will be cleared because the Ohio Capitol is brimming with corruption)

The board voted three times, on Wednesday, Feb. 25, which is standard on tie votes. Board members will send briefs to Brunner within 14 days.

Residency questions have dogged Husted, R-Kettering, for years and the complaints followed an Oct. 18 Dayton Daily News article that raised new questions about whether he lives in Kettering or at his wife's home in Upper Arlington.

Husted was elected to the Ohio Senate in November after term limits forced him to leave the House where he served as speaker.

Ohio Representative Jon Husted - Speaker of the House, Voted YES on Adam Walsh Act law. Telephone: (614) 644-6008

Ohio Secretary of State Jennifer Brunner - General Agency Phone Number: 877-767-6446 (SOS-OHIO) or local 614-466-2655

Tuesday, February 24, 2009

Feds Insist on Indefinite Civil Confinement

APnews : Appeals court asked for sex-offender law rehearing.

RICHMOND, Va. (AP) — The Department of Justice on Monday asked a full appeals court to rule that the federal government has the power to hold sex offenders in custody indefinitely beyond the end of their prison terms.

The filing seeks the reversal of a three-judge panel's ruling last month that Congress overstepped its authority when it allowed civil commitment of "sexually dangerous" federal inmates. The panel of the 4th U.S. Circuit Court of Appeals said that the law intrudes on police powers that the Constitution reserves for states, many of which have their own similar statutes.

In asking the full 4th Circuit to rehear the case, the government argues that it assumes responsibility for inmates in federal custody and should be allowed to "create civil commitment procedures for such persons to protect the public safety."

Indefinite civil commitment of citizens by the government is unconstitutional. Read more about this here at

Monday, February 23, 2009

Maine Considers Changes in Sex Offender Registration : Court to shape sex offender registry debate.

AUGUSTA, Maine - Two similar state Supreme Court cases or a soon-to-be-debated piece of legislation likely will spur changes to Maine’s sex offender registration and notification act. Earlier this month, oral arguments were heard by the Maine Supreme Judicial Court in the cases of two men who are challenging the constitutionality of the registry.

Decisions in those cases are not expected for a couple of months, but they are likely to serve as a precedent for how the state moves forward on the issue.

Meanwhile, members of the Legislature’s Criminal Justice and Public Safety Committee are expected soon to discuss LD 568, a bill that would make four distinct changes to Maine’s sex offender registry laws. Some of those changes go hand in hand with issues brought up by the court cases involving Letalien and Laclair.
The bill has been sent to committee, but a hearing date has not yet been scheduled.

It’s not clear whether the legislation or the court rulings will take effect first.

“Our inclination is to deal with this, but the court cases will surely affect what we decide,” said Rep. Richard Sykes, R-Harrison, LD 568’s sponsor. “And I’m sure some people will consider parts of this bill controversial.”

According to the summary of the LD 568, there are four areas that would change:

• Amending the crime of prohibited contact with a minor by repealing the element that the person has a duty to register under the Sex Offender Registration and Notification Act of 1999 and by making the law applicable to only those persons convicted on or after June 30, 1992.

• Clarifying a provision of the 1999 act that determines that a duty to register exists based on the conviction, but that the court’s duty is only to notify the person of that duty.

• Removes the provision that a person convicted of a sex offense satisfy all requirements of the 1999 act and allows the court’s discretion on conditions of probation.

• Redefines “lifetime registrant” for persons who have committed a second offense. For persons convicted and sentenced before Sept. 17, 2005, that means a conviction for an offense for which a sentence was imposed before the occurrence of the new offense. For those convicted and sentenced after Sept. 17, 2005, it doesn’t matter when the second offense occurred.

Sykes said the basic goals of his bill are to remove any punitive aspect of the registry and to help distinguish between violent offenders and those cases that involve an 18-year-old male having consensual sex with his 15-year-old girlfriend. Letalien and Laclair both would fall into the latter category, and Sykes said those offenders, particularly if they committed minor offenses from 1982 to 1992, likely would be removed.

Sykes’ bill is the result of numerous workshop sessions last summer by members of the Criminal Justice and Public Safety Committee. Before those sessions, Gov. John Baldacci vetoed LD 446, a bill similar to this session’s LD 568, in part because it would have removed nearly 600 offenders from the registry.

In addition to the Supreme Court cases involving Letalien and Laclair, as many as 30 “John Does” have filed a civil lawsuit arguing that their names should not be on the state’s registry. That suit has been consolidated in Kennebec County Superior Court but is still pending.

Another aspect of the sex offender registry that has been heavily debated in the last few years, including last summer, is a tiered system, which would create classifications based on the nature of offenses. One tier would exist for the most minor crimes, and those names would be on a “silent” registry accessible only by public safety officials. The second tier would allow anyone to request information about a specific offender, but their names would not be on the public registry. The final tier would include violent sexual predators and repeat offenders, and their names would be available to anyone.

LD 568 does not address a tiered system, but Sykes said it’s likely that the Criminal Justice and Public Safety Committee could discuss that option before the session ends.

One other bill this session that addresses sex offenders, LD 385, would prohibit cities and towns from adopting additional residency restrictions on offenders. Some municipalities, such as Westbrook, adopted such heavy restrictions that offenders could literally only live on a few streets within the city. Among the “John Does” who are suing the state, some refer to these types of additional restrictions.

To read these bills, visit
and type in the bill numbers LD# 385, and 568

Sunday, February 22, 2009

Ohio Adam Walsh Act - Case Law

Attorney Information - Senate Bill 10

| Ohio Supreme Court | Common Pleas Courts | Federal Courts | Related Cases in Ohio |

| Related Litigation in Other States | Sample Motions | Court Orders | County Information |

Ohio Supreme Court

Accepted for review:

Chojnacki v. Dann (2008-0991, 2008-0992, consolidated)

Certified conflict: "Whether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio's version of the Adam Walsh Act, Senate Bill 10, is a final appealable order."

In re D.S. (2008-1624)

PropLaw I: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Ex Post Facto Clause of the United States Constitution.

PropLaw II: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Retroactivity Clause of the Ohio Constitution.

PropLaw III: The application of SB 10 violates the United States Constitution’s prohibitions against cruel and unusual punishments.

PropLaw IV: A juvenile court has no authority to classify a juvenile, adjudicated delinquent for a sex offense, as a juvenile sex offender registrant when the statutory provisions governing such a hearing were repealed at the time the hearing was conducted.

In re G.E.S. (2008-1926) Appeal accepted and held for the decision in 2008-1624, In re Smith;

briefing stayed.

PropLaw I: An appellate court's finding that a lower court had discretion in determining a juvenile's registration tier level under Senate Bill 10 requires the reversal and remanding of the lower court's decision, when the lower court expressly held that no such discretion existed.

PropLaw II: The application of Senate Bill 10 to persons who committed their offenses prior to the enactment of Senate Bill 10 violates the Ex Post Facto Clause of the United States Constitution. Article I, Section 10 of the United States Constitution.

PropLaw III: The application of Senate Bill 10 to persons who committed their offense prior to the enactment of Senate Bill 10 violates the Retroactivity Clause of the Ohio Constitution. Article II, Section 28 of the Ohio Constitution.

Motion to accept discretionary appeal pending:

In re A.R. (2009-0223)

In re M.G. (2008-2257)

In re R.C. (2008-2392)

State v. Bodyke, (2008-2502)

Ohio Courts of Appeals

First District

State v. Clay, 1st Dist. No. C-070752, 2008-Ohio-2980 (appeal of classification under pre-AWA law not moot)

Second District

In re: State of Ohio, ex rel., Stephen Michael Anspach, 2nd Dist. No. 22599, 2008-Ohio-3859 (petition for writ of prohibition dismissed)

In re: State of Ohio, ex rel., Jeremy G. Compton, 2nd Dist. No. 22597, 2008-Ohio-3861 (petition for writ of prohibition dismissed)

In re: State of Ohio, ex rel., Robert Kinsler, 2nd Dist. No. 22623, 2008-Ohio-3872 (petition for writ of prohibition challenging reclassification dismissed)

In re: State of Ohio, ex rel., Brian Ludwig, 2nd Dist. No. 22550, 2008-Ohio-3873 (petition for writ of prohibition dismissed)

In re: State of Ohio, ex rel., Daniel Watkins II, 2nd Dist. No. 07-CA-80, 2008-Ohio-3877 (writ of mandamus challenging reclassification denied)

State v. Cook, 2nd Dist. No. 2008 CA 19, 2008-Ohio-6543 (definition of “sexually oriented offense” does not include offenses that were added by SB 10 if they were committed prior to SB 10's effective date)

State v. Desbiens, 2nd Dist. No. 22489, 2008-Ohio-3375 (ex post facto, substantive/procedural due process, right to contract, overbroad & unconstitutionally impermissible)

State v. King, 2nd Dist. No. 08-CA-02, 2008-Ohio-2594 (no right to counsel in SB 10 reclassification hearings)

State v. Landers, 2nd Dist. No. 2006-CA-42, 2008-Ohio-422 (appeal of classification under pre-AWA law considered)

State vs. Moore, 2nd Dist. No. 07CA093, 2008-Ohio-6238 (retroactivity, ex post facto)

Third District

In re Gant, 3rd Dist. No. 1-08-11, 2008-Ohio-5198 (ex post facto, retroactivity, double jeopardy, right to contract, history & purpose of juvenile court system)

In re: Objection to Reclassification for Brown, 3rd Dist. Nos. 9-08-18 & 9-08-19, 2008-Ohio-5403 (denial of counsel in reclassification challenge hearing not final appealable order, does not affect substantial right)

In re Smith, 3rd Dist. No. 1-07-58, 2008-Ohio-3234 (no-law argument, ex post facto, retroactivity, separation of powers)

State v. Duncan, 3rd Dist. No. 7-08-03, 2008-Ohio-5830 (ex post facto, due process)

State v. Horch, 3rd Dist. No. 14-07-47, 2008-Ohio-1484 (separation of powers, retroactivity, double jeopardy, ex post facto)

State v. Sheriff, 3rd Dist. No. 8-08-04, 2008-Ohio-5192 (notification of registration duties via notification form is sufficient)

State v. Worthington, 3rd Dist. No. 7-07-62, 2008-Ohio-3222 (ex post facto, retroactivity, double jeopardy, due process)

Fourth District

State v. Longpre, 4th Dist. No. 08CA3017, 2008-Ohio-3832 (ex post facto, due process, double jeopardy, retroactivity)

Fifth District

In re Adrian R., 5th Dist. No. 08-CA-17, 2008-Ohio-6581 (due process, ex post facto, retroactivity, separation of powers, cruel and unusual punishment, IAC for failure to understand new classification law, neither court nor parties clear on specifics of new law)

In re Carr, 5th Dist. No. 08 CA 19, 2008-Ohio-5689 (no-law argument)

In re Kristopher W., 5th Dist. No. 2008 AP 03 0022, 2008-Ohio-6075 (ex post facto, retroactivity, due process)

In re Marcio A., 5th Dist. No. 2007 CA 00149, 2008-Ohio-4523 (no-law argument)

In re Timothy C., 5th Dist. No. 08 CA 27, 2008-Ohio-5675 (ex post facto, retroactivity, double jeopardy, separation of powers challenges waived)

State v. Gooding, 5th Dist. No. 08 CA 5, 2008-Ohio-5954 (ex post facto, retroactivity)

State v. Graves, 5th Dist. No. 07CA3004, 2008-Ohio-5763 (appeal of classification under pre-AWA law is moot)

Sixth District

Montgomery v. Leffler, 6th Dist. No. H-08-011, 2008-Ohio-6397 (separation of powers, double jeopardy, due process, equal protection, bills of attainder, cruel and unusual punishment, contracts)

State v. Bodyke, 6th Dist. No. H-07-040, 2008-Ohio-6387 (ex post facto, due process, double jeopardy, retroactivity, contracts)

State v. Dombrosky, 6th Dist. No. WD-07-082, 2008-Ohio-6530 (challenges to classifications done prior to Jan. 1, 2008 are premature, as appellants have not suffered injury due to SB 10)

State v. Duncan, 6th Dist. No. F-08-003, 2008-Ohio-6802 (ex post facto, retroactivity, residency restrictions violate due process)

State v. Moody, 6th Dist. No. L-08-1108, L-08-1109, 2009-Ohio-47 (ex post facto, due process, double jeopardy, retroactivity)

State v. Stockman, 6th Dist. No. L-08-1077, 2009-Ohio-266 (retroactivity, separation of powers, ex post facto, community notification)

State v. Taft
, 6th Dist. No. WD-07-059, 2008-Ohio-5790 (double jeopardy, ex post facto, retroactivity, separation of powers)

Seventh District

State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051 (ex post facto, retroactivity, separation of powers, cruel & unusual punishment, due process, double jeopardy, no law)

State v. Jones, 7th Dist. No. 07 MA 58, 2008-Ohio-6078 (appeal of classification under pre-AWA law is moot)

Eighth District

In re E.L., 8th Dist. No. 90848, 2008-Ohio-5094 (no-law argument)

State v. Ellis, 8th Dist. No. 90844, 2008-Ohio-6283 (ex post facto, retroactivity, double jeopardy, no-law argument)

State v. Holloman-Cross, 8th Dist. No. 90351, 2008-Ohio-2189 (ex post facto, due process)

State v. Luks, 8th Dist. No. 89869, 2008-Ohio-3974 (appeal of classification under pre-AWA law is moot)

State v. Rabel, 8th Dist. No. 91280, 2009-Ohio-350 (ex post facto, retroactivity)

Ninth District

In re E.B., 9th Dist. No. 24148, 2008-Ohio-5441 (separation of powers, ex post facto, retroactivity, juvenile court discretion)

In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076 (ex post facto, separation of powers, unconstitutionally vague)

In re R.P., 9th Dist. No. 23967, 2008-Ohio-2673 (ex post facto, retroactivity, no-law argument)

In re T.H., 9th Dist. No. 24147, 2008-Ohio-4843 (separation of powers, ex post facto, retroactivity, juvenile court discretion)

In re W.H., 9th Dist. No. 23936, 2008-Ohio-4337 (ex post facto, retroactivity)

State v. Honey, 9th Dist. No. 08CA0018-M, 2008-Ohio-4943 (retroactivity, ex post facto, substantive due process

State v. Ralston, 9th Dist. No. 08CA009384, 2008-Ohio-6347 (ex post facto, retroactivity)

State v. Williams, 9th Dist. No. 08CA009350, 2008-Ohio-3586 (state’s appeal: trial court lacks jurisdiction to reclassify at Bezak resentencing hearing, when statute allows only AG to reclassify)

Tenth District

State v. Christian, 10th Dist. No. 08AP-170, 2008-Ohio-6304 (ex post facto, retroactivity, separation of powers, substantive due process, procedural due process, double jeopardy, cruel and unusual punishment)

Eleventh District

State v. Brunelle-Apley, 11th Dist. No. 2008-L-014, 2008-Ohio-6412 (appeal of classification under pre-AWA law considered)

State v. Johnson, 11th Dist. No. 2008-L-015, 2008-Ohio-4666 (appeal of classification under pre-AWA law; dissent says appeal moot)

State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059 (ex post facto, retroactivity, separation of powers, substantive & procedural due process)

Twelfth District

In re A.R., 12th Dist. No. CA2008-03-036, 2008-Ohio-6566 (due process, ex post facto, retroactivity, separation of powers, double jeopardy)

In re S.R.P., 12th Dist. No. CA2007-11-027, 2009-Ohio-11 (no-law argument, due process, ex post facto, retroactivity, separation of powers, cruel and unusual punishments, double jeopardy, mandatory vs. discretionary classification of juveniles)

State vs. Williams, 12th Dist. No. CA2008-02-029, 2008-Ohio-6195 (ex post facto, due process, double jeopardy, retroactivity, separation of powers)

Common Pleas Courts

Cuyahoga County

Tremaine Evans v. State of Ohio (SB 10 violates retroactivity clause of Ohio Constitution and ex post facto clause of U.S. Constitution; sexual predator laws are classic forms of punishment, residency restrictions operate as a disability, sexual predator laws further traditional notions of punishment, AWA not tailored to meet non-punitive purpose)

Franklin County

State of Ohio v. Rubin T. Toles (Changes to frequency and duration of registration not unconstitutional; increased information required to be disclosed, residency restrictions, and increase in penalties for failure to register violate Ohio Constitution’s retroactivity clause; Individual previously determined not to be a sexual predator or who had not had a sexual predator hearing cannot now be subject to community notification)

Lorain County

Ronald Brooks vs. State of Ohio (SB 10 remedial and not punitive, rationally related to the public good and lowering recidivism; SB 10’s residency restrictions unconstitutional; they affect an accrued substantive right and go “far beyond the reasonable monitoring of the whereabouts of the Petitioners.”)

Richland County

William Sigler v. State of Ohio (Designation as sexually oriented offender part of sentence; legislatively changing classification and increasing duration of duties not remedial changes: violate retroactivity and ex post facto; SB 10 constitutes breach of contract when plea agreement includes agreement about classification)

Federal Court

Class Action Lawsuit, U.S. District Court, Northern District of Ohio
This lawsuit resulted in an extension of the 60-filing deadline for SB 10 reclassification challenge petitions and a stay of community notification. The order was issued Feb. 6, 2008 and dissolved June 9, 2008.

For information on federal court rulings from across the nation, please see:

Related Cases in Ohio

Mikaloff v. Walsh: the Northern District of Ohio held that Ohio's sex offender residency restrictions are punitive and that they violate the Ex Post Facto Clause of the U.S. Constitution when applied retroactively.

Hyle v. Porter: the Supreme Court of Ohio held that Ohio’s residency restrictions do not apply retroactively to someone who bought his home and committed his offense before the effective date of the statute.

State v. Ferguson: the Supreme Court of Ohio held that Ohio’s pre-AWA SORN law does not violate the ex post facto and retroactivity clauses of the U.S. and Ohio constitutions.

Related Litigation in Other States

In the Matter of L.M.
, Kansas Supreme Court (juveniles have a constitutional right to jury trials)

ACLU of Nevada v. Masto
, permanent injunction, U.S. District Court, District of Nevada, enjoining enforcement of Nevada’s Adam Walsh Act (ex post facto, double jeopardy, contract clause, due process)

South Dakota
In re Z.B.
, South Dakota Supreme Court (including juveniles on state sex offender registry violates equal protection)

Sample Motions

Court Orders

County Information

Friday, February 20, 2009

USDOJ SMART Case Law Updates

U.S. Department of Justice
Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking

Case Law Updates (Adam Walsh Act, SORNA, Sex Offender Laws)

U.S. Constitution : Ex Post Facto Lesson : The United States Constitution.

Section 9 - Limits on Congress
No Bill of Attainder or ex post facto Law shall be passed.

"ex post facto"

In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

"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. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender."

Thursday, February 19, 2009

Sex-offender Ordinance Halted

ManitowocHeraldTimes (Wisconsin) : Sex-offender Ordinance Halted.

A proposal to keep convicted sex offenders from living within 2,000 feet of areas frequented by children in the city of Manitowoc was knocked down tonight by the Public Property and Safety Committee of the City Council.
Committee members voted 4-1 to halt the creation of the ordinance, which would have kept offenders from residing near churches, schools, licensed child care centers, trails and parks. Maps drafted by the city showed that nearly all of Manitowoc would be off-limits to sex offenders with the 2,000-foot setback.

“There is no proof that we’re keeping our kids any safer by doing this,” Alderman Dave Soeldner said of the proposed ordinance. “There is some indication we may be endangering our kids more.”

“I can’t believe anyone would vote for this,” Sieracki said. “All the groups have said the same thing — it’s a bad idea. If we’re creating safe zones, then we’re creating danger zones. Our energy would be better spent on promoting safe behaviors.”

Sitkiewitz, chairman of the committee, said he instead would like the city to work on an ordinance with stronger notification requirements for residents when a convicted sex offender moves into their neighborhood.

“Having a bubble around your neighborhood doesn’t make it safe,” Sitkiewitz said. “I’m more concerned about notification and communication.”

Officials at the meeting, however, said the belief that a residency restriction will make the community safer is a fallacy. “Sex offenders live amongst us — they always have, and they always will,” Manitowoc County District Attorney Mark Rohrer said. “I don’t think (a residency restriction) is a good idea.”

Rohrer said most sexual offenses take place between people who know each other, and that often means they’re occurring inside homes.

“The majority isn’t circled by this (ordinance),” Sitkiewitz said. “Any ordinance that we draw will not exclude people from being friends.”

Wednesday, February 18, 2009

Sex Offenders Rights Must Be Observed : Editorial | Rights of sex offenders must be observed.

Rights balancing is a tricky business, and sometimes it’s just easier to look the other way. That’s what happened when a Boston court sentenced Jeffrey Shields to civil detention last week as a sexually dangerous person. In this case, the court pulled a trick straight from “Minority Report” and locked up Shields, an ex-felon, to prevent him from committing future offenses.

For starters, the civil detention of past criminals comes eerily close to a double jeopardy violation because the state is inferring future crimes from past behavior. In essence, a person goes to jail for a crime, gets released and gets sent to a high-security civil detention center. The only reason it’s not legally double jeopardy is that it’s a civil rather than a criminal sanction, but that distinction is dubious at best. Whether they are in a prison or a detention center, the people in question are still behind bars.

In most cases, the state is merely using the guise of civil detention to unethically tack on years to a sentence beyond what the initial criminal court had determined fair. In particular, this toys with the idea that there is a just punishment for each crime. If, as a society, we feel that sex offenders are not serving enough time in prison, we should raise sentences, but instead we are looking for back doors.

The simple fact is that we do not lock sex offenders up for life, and there’s probably a good reason for that. As hard as it is to come to terms with when staring evil in the eyes, we are a society that fundamentally believes in the idea of just desert. We believe that prisoners pay their debt to society and then start again with a clean slate. That’s what helps us cope with crimes and believe that human beings, no matter what they’ve done in the past, are capable of redemption. It’s also why our prison system has so long incorporated the idea of rehabilitation.

Nevertheless, society has given up on sex offenders, deeming them incapable of recovery. While Shields was the first person sentenced to civil commitment under the Adam Walsh Child Protection and Safety Act of 2006, thousands have been put in civil detention facilities since the 1997 Supreme Court decision in Kansas v. Hendricks, which allows for the indefinite civil incarceration of sex offenders.

When the rights of past felons come in conflict with the safety of society, it makes sense to err on the side of protecting innocent people. But in doing so, we can’t escape from the uncomfortable reality that even sex offenders have rights.

Sex offenders are some of the most repugnant members of society, and we certainly need protection against them. We just can’t let that protection come at the cost of our ideals.

It’s time to move back toward the center.

AL Bans Sex Offenders from College Campuses : Campus sex offender ban passes House.

MONTGOMERY — The Alabama House of Representatives on Tuesday overwhelmingly approved
a ban on sex offenders living or loitering near college campuses.

The bill, sponsored by Rep. Jamie Ison, now goes to the Senate, where that measure and many others approved by the House last year failed. Ison's bill would
prohibit convicted sex offenders from living in college dorms or within 2,000 feet of a campus. Sex offenders would be allowed to take classes at colleges and universities, but they could only be on campus if they had a "legitimate purpose," the bill prescribes.

Sex offenders in Alabama are already prohibited from living near day care facilities, as well as elementary, middle and high schools. Though Jackson ultimately voted for the bill, he told Ison that barring sex offenders from various locations will not solve the problem.

This is about the most stupid legislation we have had to report at ConstitutionalFights. Not only is this patently unconstitutional, but college students are adults, not darling little vulnerable children !

NV and NY Scrap Sex Offender Restrictions : Legislators Kills Sex Offender Bill. : Sex offender residency rule off the table in Ulster County.

Carson City, Nevada- A bill that would have changed lifetime supervision requirements imposed on convicted sex offenders has been killed by the state legislature. Initially introduced by the Division of Parole and Probation, the bill is one of two that would change how sex offenders -- sentenced to a lifetime of parole -- are tracked, while a second bill would not automatically restore the civil rights of those offenders.

Legislators and officials from the American Civil Liberties Union said the bills would violate constitutional due process protections and goes too far. They added that the parole board should focus on the "host of other problems they face," which was recently outlined in a legislative audit.

Kingston, NY — Acting on the recommendation of the county attorney, Ulster County Legislature Chairman David Donaldson has pulled the plug on an effort to restrict where in the county registered sex offenders may live.

During a meeting last week, Donaldson, D-Kingston, ruled out of order a resolution to schedule a public hearing on a proposed local law to prohibit registered sex offenders from living within 1,000 feet of a school, church or day-care center. He said a ruling in Rockland County that an almost identical law there is unconstitutional calls into question the legitimacy of Ulster’s proposed law.

“When we compared what their law was against what was being proposed, it was determined that our law would likewise be declared unconstitutional under the same facts and circumstances as in Rockland County,” Donaldson said.

Donaldson added that county law-enforcement and mental health officials have said such a law would be impossible to enforce and could be counterproductive because it could force sex offenders to choose not to register, making it impossible to monitor their movements.

In a court decision dated Jan. 22, state Supreme Court Justice William Kelly struck down the Rockland County law, saying it “impermissibly conflicts with the state enactments.” The lawsuit was brought by a sex offender who is an orthodox Jew and said he must live within walking distance of a synagogue.

Similar laws have been adopted elsewhere the state, but many of those — including laws in Albany, Washington and Rensselaer counties — now are facing court challenges.