REPLY BRIEF OF AMICI CURIAE OFFICE OF THE OHIO PUBLIC DEFENDER,CUYAHOGA COUNTY PUBLIC DEFENDER, OHIO ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AND OHIO JUSTICE AND POLICY CENTER IN SUPPORT OF APPELLANT CHRISTIAN BODYKE.
IN THE SUPREME COURT OF OHIO, STATE OF OHIO,
Plaintiff-Appellee, V. CHRISTIAN N. BODYKE, Case No. 2008-2502
On Appeal from the Sixth Appellate District, Huron County, Ohio Case Nos. 11-07-040, H-07-041, H-07-042.
SUMMARY OF ARGUMENT
The primary intent and effect of Senate Bill 10 is punishment. Senate Bill 10 does not
protect the public. It does not help Ohio obtain federal funds. Further, through Senate Bill 10,
the General Assembly empowered the Attorney General to change the terms of judicial orders in
violation of the separation of powers. This Court should hold that Senate Bill 10 violates the
Ohio Constitution's ban on retroactive punishment and that it violates the separation of powers.
In 2007, Senate Bill 10 fundamentally changed Ohio's sex-offender classification and notification provisions. But Senate Bill 10 may not be constitutionally applied to crimes that occurred before the date of its enactment. Although different provisions of Senate Bill 10 came into effect at different times - some portions took effect on July 1, 2007 while other sections (did not take effect until January 1, 2008- at the very least, the act may not be applied to a defendant whose alleged crime(s) occurred before 7uly 1, 2007. Senate Bill 10, 127"' General Assembly, Sections 2, 3, and 4 (2007). Under Senate Bill 10, sex offenders are no longer classified based upon their risk to the public. Instead of judicial hearings focused on the risk that an offender- might re-offend, Senate Bill 10 classification levels are based solely on the offense committed. Senate Bill 10 does not permit the sentencing judge to consider criteria that are relevant to the offender's risk of recidivism. instead, the sentencing judge merely informs the offender which classification and duties attach to his or her conviction. R.C. 2950.03(A)(2).
The General Assembly's motivation in enacting Senate Bill 10 was largely financial. In 2006, Congress passed a bill known as the Adam Walsh Act. States were required to comply with this federal legislation by July 27, 2009, or risk losing 10% of a federal law-enforcement grant. Congress promised a funding bonus to states that enacted the statute by July 2007. As Ohio State Senator Steve Austria, Senate Bill 10's sponsor, explained during the May 16, 2007 Senate session: "Every state is required to implement the Adam Walsh Child Protection and Safety Act within three years, by July of 2009. However, if we are able to implement this Act by July of 2007..., we would be eligible to receive an additional ten percent to our state." Senate Session, Wednesday, May 16, 2007. Despite Senator Tom Sawyer's warning during the session that "[t]his bill is being moved as quickly as possible not because of what is best for children, but because there is money at stake from the Congress," the General Assembly passed the bill. Id.
It appears that the bonus money is purely illusory, as Congress has not appropriated any money for the bonus. See, generally, Fund Adam, http://fiindadatn.org/news.html (viewed, September 10, 2009); and the Adam Walsh Policy update of the National Conference of State Legislators, http://www.ncsl.org/statefed/LAWANDJ.HTM#AdaniWalsh (updated, August 2009). Furthermore, Ohio has not met the minimum standards for federal compliance. See January 16, 2009 Letter from Laura L. Rogers, Director of the U.S. Dept. of Justice Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, to Nancy H.
Rogers, former Ohio Attorney General.i According to Director Rogers, Ohio's new classification system has failed to adequately place various offenses into the proper tiers. Id. at pp. 1-5 of enclosure.
And not only is Ohio's new classification scheme inadequate, but recent studies demonstrate that sex-offender registries are ineffective tools for increasing public safety. See Amanda Y. Agan, Sex Offender Registries: Fear Without Function?, (December 2008), University of Chicago Economics Department (Using three different sets of data, Agan concluded that rates of sexual offenses do not decline after the introduction of a registry; and sex offenders do not recidivate less when released into states with registries); Editorial, The Problem
of Sex Offenders, N.Y. Times, September 11, 20093 ("California's online sex-offender registry is full of information about Phillip Garrido of 1554 Walnut Ave, in Antioch 6-foot-4 white male, born April 5, 1951, with blue eyes, brown hair, a scar on his abdomen and a rape conviction. But in the 18 years that Mr. Garrido dutifully met his obligations as a registered offender-checking in with the state every year-authorities charge that he kidnapped and held Jaycee Dugard, fathering two children with her and imprisoning them all in his backyard.");Monica Davey, Case Shows Limits of Sex Offender Alert Programs, N.Y. Times, September 1,
20094 ("Sex offender lists have made far more information readily available to the public and the police than before, but experts say little research is available to suggest that the registries have actually discouraged offenders from committing new crimes.").
A. The application of Senate Bill 10, to crimes committed before July 1, 2007, violates the Ex Post Facto Clause of the United States Constitution.
B. The application of Senate Bill 10, to crimes committed before July 1, 2007, violates the Retroactivity Clause of the Ohio Constitution.
C. Senate Bill 10 violates the separation-of-powers doctrine.
D. The application of Senate Bill 10 to offenders who entered into a plea agreement with the State before Senate Bil110 went into effect impairs the right to contract as protected by the Ohio and United States Constitutions.
If this Court determines that Senate Bill 10 may not be applied retrospectively, it should reverse any Senate Bill 10 classification to any defendant whose criminal activity occurred prior to the enactment of Senate Bill 10. This case does not challenge the ability to apply Senate Bill 10 prospectively. See Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, at 124 ("because R.C. 2950.031 was not expressly made retroactive, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute"). But any original classification under former R.C. Chapter 2950 should be governed by House Bill 180.
For the foregoing reasons, and for the reasons stated in Appellant's and Amici's merit briefs, this Court should reverse the decision of the Sixth District Court of Appeals.