Friday, July 15, 2011

Constitutionalfights Blogs Set to Archive Status

Constitutionalfights blogs were set to Archive Status and our email address was inactivated on Sept. 22, 2010.

Our blogs were actively updated for 32 months. We had well over 250,000 readers and published more than 1100 blog posts. Our sole and primary mission was to repeal the Ohio Adam Walsh Act (Senate Bill 10) and to defeat it's unconstitutionally retroactive implementation. However, our mission to defeat the Ohio Adam Walsh legislation has been accomplished. Therefore, we ceased actively updating these blogs.

Emailing Constitutionalfights:

Our email account is no longer active. You may still try to email us, but we do not check this email account at any regular interval. If you do email us, there is virtually no chance of the message getting to me unless it has a relevant subject line. If your email does not have a relevant subject line, it will surely be lost in the junk mail folder.

Also, if you do try to email us, please do not ramble on about your personal situation and tell me how bad it is. I know how much damage these laws to in the lives of those who are forced to deal with them. Everyone seems to write me long stories about about how unfairly they have been treated and how bad they have it, but don't do this because I wont read it. Frankly don't really care about the specific facts of your case. But if you have a legitimate question, I may still catch it if I check the email account periodically. Why do you think I started Constitutionalfights ? The answer is: to fight against these laws, because they were unconstitutional. I already know how damaging they are to families and individuals.

Finally, search our blogs before you ask a question. Most answers are found on our blogs. Use the search box on each blog to find related posts. For example: I am constantly asked by readers about laws in other states, or whom they can contact in their state. We only focused on Ohio legislation. Therefore, we do not know the laws in your state, and we are not familiar with laws related to moving to or from Ohio. If you read the blogs, you will see a Links Page with an RSOL link where each state's organizer can be contacted.

I am not a legal professional and therefore I cannot and will not offer legal advice. So don't ask me for legal advice.

Victory in Ohio:
Now, on the heels of the June 3, 2010 Ohio Supreme Court ruling which invalidated the reclassification of ex offenders into more punitive registration requirements, we claim this victory in our mission. we claim this victory for The Constitution of the United States of America and the rule of law.

Continuing the Battles:
But this is just one battle in the war against onerous, unconstitutional and ineffective sex offender laws across this country. We have posted countless times on our blogs how these sex offender laws are unjust, unconstitutional and ineffective. Hundreds of thousands of ex offenders remain victims of these laws. But the task of spearheading the battles of these citizens will have to be taken by others. Someone must and will eventually step forward just as we did. If not, hundreds of thousands of citizens will continue to have their throats under the boots of legislators across this great nation. Desperate times call for desperate measures.

I have mixed feelings about ending our active involvement in these fights. I have thought long and hard about it. But the truth of the matter is that everyone in battles such as these are in it for their own interests. I have experienced this many times throughout this 2-1/2 year fight. When an individual's interests are satisfied, they leave the fight. We lost many of those soldiers throughout these last few years. Even those who were in the fight with us but who did not benefit by this particular court ruling have become dismissive of our work now that we have claimed victory.

Furthermore, very few of those who contacted us, or followed our blogs, actually took any action to join the fight. Sure, there were a few individuals who sent letters and emails or made calls, but these are just a tiny fraction of those who were affected by these laws. Most people took no real action or got actively involved. Most emails I received were complaining to me about their situation, or asking me to do something for them.

I would like to recognize those who did do wonderful and effective work; RSOL, Ohio RSOL, Margie Slagle of the Ohio Justice and Policy Institute, Amy Borror of the Ohio Public Defender Office,

We received only three donations in 32 months. We thank those individuals for their generosity and help. If you would like to contriubute, you can still send a donation here for all the work we have done over the past 2-1/2 years. But once again, this lack of help by others makes the decision to step away much easier.

It's Not Over:
Even after this victory in Ohio, we continue to see good people trampled on by politically-correct sex offender legislation. These laws are destroying families across the United States. Many good people are caught up in these webs of public shaming created by our state and federal legislators of both parties. Children of ex offenders are ostracized and shamed. Parents are banned from being involved parents. And people are being shamed on public government web sites and banned from living in certain areas or visiting public places.

Of course, there are some real monsters out there. But only these sensational crime cases make the headline news. Most ex offenders are not a danger to society and simply made a terrible mistake. I know of no one in this world who hasn't made mistakes, yet this is the only group of citizens we refuse to forgive, or allow to continue on living a normal life.

Sadly, the Federal Adam Walsh Act (AWA) remains alive, albeit on "life-support". It has been crippled with various legal challenges and revisions. All those who are affected by this terrible legislation should continue to seek its ultimate repeal. An AWA Study Guide can be downloaded here.

Lawsuit Against Ohio:

If any reader is a legitimate legal professional who is willing to organize a class action lawsuit against the State of Ohio, in the wake of the Supreme Court rulings which found these laws to be a violation of our constitutional rights, please contact us (or Ohio RSOL). Because these laws were enforced for two years before being ruled unconstitutional, we believe we have standing to form a large class action lawsuit against the State of Ohio.

Logic and Facts:
If we are to have offender registries, they must be risk-based. Evidence must be given in a court of law to prove that an offender is a high risk. If this evidence cannot be made in court, an ex offender should not be on a sex offender registry.

Sex Offender Registries should not be public ! Registries of those truly dangerous should be available to law enforcement agents only. Over 90% of sex assaults are committed by an acquaintance of the victim. This "stranger danger" hysteria myth must be killed with factual data.

The widespread lies about sex offender recidivism must be defeated. Many research studies have been completed to determine actual sex offender recidivism. Their results almost always provide a recidivism rate range between 5 -15% .

We urge all those who are still adversely affected by sex offender laws in this nation to become actively involved in the fight against them. Join and support the efforts of RSOL and your state RSOL affiliate. Write, email, call and meet with legislators, donate your time and money to the efforts of those actively fighting, create information blogs like ours, post responses to online articles, gather statistics and spread truth.

And so this blog is now set to Archive Mode. This means that we will no longer be updating it, but will retain its content for the world to read. We will also not be checking or responding to any emails after October 1, 2010. In addition to the above referenced reasons, this is partly due to the fact that too many people in the "network" too often abuse the "reply all" button without regard to whom they are sending emails.

Final Word:

"First they came for the Jews and I did not speak out because I was not a Jew.
Then they came for the Communists and I did not speak out because I was not a Communist.
Then they came for the trade unionists and I did not speak out because I was not a trade unionist.
Then they came for me and there was no one left to speak out for me. "

Pastor Martin Niemöller (1892–1984)

Thursday, July 14, 2011

Ohio Supremes Ban Retroactive Use of Sex Offender Law

Court: Sex offender law not retroactive

COLUMBUS, Ohio, July 13 (UPI) -- A law on registration and community notification for released sex offenders cannot be applied retroactively, the Ohio Supreme Court said Wednesday.

The justices ruled 5-2 the 2007 Ohio Adam Walsh Law can only be applied to offenders who committed their crimes after it became effective, The Columbus (Ohio) Dispatch reported. The court reversed a decision by a state appeals court.

"The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders," Justice Paul Pfeifer said. "It may not, however, consistent with the Ohio Constitution, 'impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.'"

Justice Terrence O'Donnell in the minority opinion said the court has said in previous rulings that requiring sex offenders to register and providing community notification in some cases are civil sanctions, not criminal penalties.

Ohio Supremes Ban Retroactive Use of Sex Offender Law: Hundreds of previously-convicted sex offenders will be affected

The Ohio Supreme Court, in a ruling published today, has declared that imposing "enhanced" sex offender registration and community notification requirements on previously-convicted sex offenders, as required by the Ohio Adam Walsh Act (AWA) which was contained in 2007's Senate Bill (SB) 10 is a violation of the Ohio Constitution.

"When the General Assembly adopted the AWA by enacting 2007 S.B. 10," stated a Ohio Supreme Court press release, "it included statutory language requiring that, regardless of the date on which a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply a new three-tiered AWA offender classification scheme and must include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the prior, Megan’s Law, version of the statute."

The decision was based on Article II, Sec. 28 of the Ohio Constitution, which states in part, "The general assembly shall have no power to pass retroactive laws." Similar wording can be found in the U.S. Constitution as well, where one clause in Article I, Sec. 9 reads, "No Bill of Attainder or ex post facto ["after the fact"] Law shall be passed."

The case at issue was State v. George Williams, where the defendant had been convicted for engaging in sexual conduct with a minor—conduct which took place prior to July, 2007, although Williams was convicted on the charges in December, 2007, after SB 10 had been passed.

"Prior to his sentencing hearing," the Supreme Court's press release stated, "Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. Pursuant to the AWA he was classified as a Tier II offender, which required him to register with the sheriff in his county of residence, and in any other county in which he worked or attended school, every 180 days for the next 25 years." Under Megan's Law, his registration and reporting requirements would have been limited to 10 years.

Williams appealed that ruling under the ex post facto/retroactivity clauses of both the Ohio and U.S. Constitutions, as well as arguing violation of the U.S. Constitution's due process clauses and its ban on double jeopardy.

Another portion of the AWA, which would have allowed the Ohio Attorney General to reclassify sex offenders without the necessity of judicial approval, was overturned by the same court just over one year ago.

The Ohio Supreme Court's 5-2 decision, authored by Justice Paul E. Pfeifer, overturning the AWA was largely based on the fact that while several state decisions had held that the registration requirements of Megan's Law were considered remedial rather than punitive in nature, "Following the enactment of SB 10, all doubt has been removed: R.C. Chapter 2950 [the AWA] is punitive," Justice Pfeifer stated in the majority opinion. "The statutory scheme has changed dramatically since this court described (in [State v.] Cook) the registration process imposed on sex offenders as an inconvenience 'comparable to renewing a driver’s license.' ... And it has changed markedly since this court concluded in [State v.] Ferguson that R.C. Chapter 2950 was remedial...

"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...," the high court concluded. "We conclude that SB 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of SB 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws."

"The Ohio Supreme Court decision in Williams does a really good job of explaining how in light of these internet websites that we now have, and community notification and criminal penalties attaching and more periodic registration in person with a sheriff there, all of these measures are looking more and more and more like punishment and less and less and less like a driver's license," one attorney analyzed, "and as that shift has happened, it's become more like criminal punishment, and really, the Ohio Supreme Court is the first top court in a state to characterize it that way."

Kinsley said that through her discovery motions in the case, it had been revealed that hundreds of people in Ohio will be affected by today's decision, and will now be able to get on with their lives without the stigma of appearing on sex offender websites.

Court: Law applied to convicted sex offenders violates constitution

The legislature's attempt four years ago to apply a new law to already-convicted sexual offenders violated the Ohio Constitution, the state Supreme Court ruled today.

Imposing enhanced registration and community notification requirements in the 2007 Ohio Adam Walsh Act against defendants whose crimes were committed before the effective date of that law violates a constitutional prohibition on the General Assembly enacting retroactive laws, the justices declared.

The 5-2 decision, which reversed a ruling by the 12th District Court of Appeals, was written by Justice Paul E. Pfeifer.

"The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders," Pfeifer said. "It may not, however, consistent with the Ohio Constitution, 'impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.' "

Joining the majority opinion were Chief Justice Maureen O'Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown.

Justice Terrence O'Donnell authored the dissenting opinion, which was joined by Justice Robert R. Cupp.

Today's decision came on the appeal of George Williams of Warren County, convicted in December 2007 for engaging in sexual conduct with a minor an offense that occurred before the Adam Walsh Act took effect. Williams asked the judge to sentence him under the previous sex offender classification setup, known as Megan's Law.

The judge rejected that motion and classified him under the more stringent Adam Walsh Act as a Tier II offender, which required him to register with the sheriff in his home county and in any other county in which he worked or attended school, every 180 days for the ensuing 25 years.

Williams appealed, but was turned down by the 12th District Court of Appeals.

Pfeifer noted that in earlier Supreme Court decisions on previous changes in the sex offender law, justices upheld the changes because they were more remedial than punitive, and thus the constitutional ban on retroactive laws did not apply. But the changes in the Adam Walsh Act made them punitive, and therefore unconstitutional.

The Ohio Supreme Court could have new rules when it comes to registering sex offenders...unless the crime was committed before 2007.

Monday, July 11, 2011

Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

Is 'Adam Walsh' Classification of Sex Offender Who Was Never Classified Under Megan's Law Constitutional?

Case Also Asks If Offender Has Right to Counsel for Classification Hearing

State of Ohio v. Lambert Dehler, Case no. 2009-1974
11th District Court of Appeals (Trumbull County)


  • Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on an offender whose crime was committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?
  • Does the Supreme Court of Ohio’s 2010 decision in State v. Bodyke bar the attorney general from imposing AWA registration and community notification requirements on pre-1997 sex offenders who never received a sex offender classification by a court under the prior, Megan’s Law, version of Ohio’s sex offender statute?
  • Is an indigent sex offender who files a timely petition contesting his classification under the AWA entitled to the appointment of legal counsel to represent him?

BACKGROUND: Under Megan’s Law, which took effect Jan. 1, 1997, the cases of all prison inmates who were serving sentences for sexually-related crimes on that date were required to be reviewed by the trial court in which the offender was convicted prior to or within one year after the offender’s release from prison. The purpose of this review was for the court to determine, based on the circumstances of each offender’s crimes and his/her personal and social history, whether that person should be classified as a low-risk (sexually-oriented), medium risk (habitual) or high-risk (sexual predator) offender. After classifying the offender, the court was then required to impose post-release registration and community notification requirements set by law for the class of offenders into which he or she had been placed. From 1997 through June 2007, when an incarcerated pre-1997 sex offender approached the completion of his/her prison term, the Ohio Department of Corrections notified the trial court in which that person was convicted. The court then reviewed the offender’s case, assigned the offender to a Megan’s Law classification, and notified the offender of his/her statutory post-release registration and (where applicable) community notification requirements.

Effective July 1, 2007, Megan’s Law was repealed and replaced by the AWA. Under the provisions of the AWA, pre-release judicial review of the cases of pre-1997 offenders was eliminated and the attorney general was empowered to automatically assign all past offenders to one of three newly-created “tiers” based exclusively on the crime(s) for which that person was convicted and assign new, more restrictive registration and community notification requirements on each offender.

In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio severed (voided) the provisions of the AWA that authorized the attorney general to reclassify and impose more severe registration and community notification requirements on sex offenders who had previously been classified by a court under Megan’s Law. In this case, the Court is asked to decide whether its severance of the offending sections of law in Bodyke also bars the attorney general from imposing AWA registration and community notification requirements on pre-1997 sex offenders who did not become eligible for release from prison during the time Megan’s Law was in effect, and who therefore never came before a court for classification under the Megan’s Law version of the statute.

Lambert Dehler was convicted on two counts of rape and two counts of gross sexual imposition in 1992 and sentenced to long prison terms. Because he did not become eligible for release during the 1997-2007 period when Megan’s Law was in effect, the corrections department never referred Dehler’s case to the trial court for post-release sex offender classification. In January 2008, Dehler received a letter from the state attorney general’s office informing him that, pursuant to the AWA, the attorney general had classified Dehler as a Tier III (highest risk) offender based on his rape convictions, and that based on his classification, upon release from prison he would be subject to lifetime registration and community notification requirements.

Dehler filed a petition in the Trumbull County Court of Common Pleas contesting his classification, and requested that legal counsel be appointed to represent him in pursuing that petition. The trial court granted summary judgment in favor of the state, noting that under prior Ohio Supreme Court decisions an order imposing registration or community notification requirements on a sex offender has been held to be a civil, remedial order that does not increase the “punishment” for a past crime. Applying that same analysis to Dehler’s claims, the trial court held that imposing AWA registration requirements on Dehler retroactively was not unconstitutional and Dehler had no right to appointed counsel in a civil proceeding that did not expose him to a threat of imprisonment. Dehler appealed. The 11th District Court of Appeals affirmed the trial court’s award of summary judgment in favor of the state.

Dehler sought and was granted Supreme Court review of the 11th District’s holdings.

With regard to whether the AWA imposes “punishment,” and therefore may not be applied retroactively, Dehler’s attorneys advance arguments similar to those offered in the preceding case.

(See State v. Williams preview above). They also assert the state attorney general has no legal authority to impose or change a criminal sentence except under the provisions of the AWA that have been voided by this Court’s decision in State v. Bodyke, and therefore the attorney general acted without jurisdiction in imposing AWA registration and notification requirements on Dehler.

With regard to the right to counsel, Dehler’s attorneys argue that because AWA registration and community notification requirements are now part of the sentence imposed on a defendant by a trial court at the conclusion of a criminal trial, any proceeding to contest the imposition of those requirements on Dehler based on his 1992 convictions is criminal in nature and invokes his right to appointed legal counsel.

As in State v. Williams (see preceding case preview above), attorneys for the state cite prior Supreme Court of Ohio decisions holding that sex offender classification, registration and community notification requirements are civil rather than criminal in nature, and therefore are not subject to constitutional challenges under either the ex post facto clause of the U.S. Constitution or the retroactivity clause of the Ohio Constitution. For the same reason, they say, because imposition of the AWA’s registration and notification requirements is a remedial action intended to protect the public rather than to inflict “punishment” on the offender, court proceedings to contest an AWA classification are civil rather than criminal in nature, and offenders challenging their classifications are therefore not entitled to appointed counsel.

Deena L. DeVico, 330.675.2916, for the state and Trumbull County prosecutor's office.

Jason A. Macke, 614.466.5394, for Lambert Dehler.

Ohio Channel Video