In State v. Williams the Ohio Supreme Court continues its long-running debate about whether the community registration and notification requirements of sex-offender statutes are punitive or remedial. At issue specifically is whether a convicted sex-offender can be re-classified under a newer, more stringent law than the one in effect at the time he committed the offense.
My thanks to my Research Assistant Greg Kendall, a 2L at the University of Cincinnati College of Law. This post is largely his work.
Last year, the Supreme Court’s holding in State v. Bodyke struck down a portion of the retroactivity provisions of Ohio’s sex offender classification law on separation of powers grounds. On July 13, the High Court revisited those retroactivity provisions in State v. Williams and once again declared them invalid under the Retroactivity Clause of the Ohio Constitution. Let’s see how the Williams decision fits in with the history of Ohio’s sex offender laws.
In New Jersey in 1994, a young girl was raped and murdered by a convicted sex offender who lived next door. In the wake of that tragedy, New Jersey and other states passed “Megan’s Laws,” which contained both registration and community notification requirements. Sex offenders were required to register with local law enforcement agencies, which were then required to notify the community of the sex offender’s intent to reside in the area. Congress soon passed a law requiring all fifty states to follow suit.
Ohio’s version of Megan’s Law classified sex offenders with three categories based on the offender’s likelihood of recidivism: sexually oriented offender, habitual sex offender, and sexual predator. But in 2006, Congress passed the Adam Walsh Act, which required states to classify sex offenders according to three tiers, based solely on the crime committed. Ohio replaced Megan’s Law in 2007 with its own version of the Adam Walsh Act, Senate Bill 10. The law’s retroactivity provisions required the Attorney General to re-classify existing sex offenders in accordance with the new law. As a result, sex offenders were suddenly subject to stricter reporting and community notification requirements.
Last year in State v. Bodyke, the Court declared part of S.B. 10’s retroactive provisions unconstitutional. Because the law gave the Attorney General the responsibility of reclassifying sex offenders, the Court found that the legislature had impermissibly allowed the executive branch to re-open cases and override judicial decisions. The Court’s remedy was to sever the retroactivity provisions from the rest of the statute so that sex offenders previously classified under Megan’s law could not be reclassified.
Having resolved S.B. 10’s separation of powers violations, the Court maintained the Megan’s Law classifications for those offenders convicted under Megan’s Law. But it left open the question of whether S.B. 10 could apply retroactively to new offenders who had committed their acts before S.B. 10 took effect, while Megan’s Law still applied. In State v. Williams the Court said it could not.
Defendant George Williams pled guilty to a child sex crime in November 2007. He moved to be sentenced under Megan’s Law, the controlling statute at the time, instead of S.B. 10, which was to take effect less than two months later. Under Megan’s Law, he would have been classified as a lower-level offender, and the trial court stated twice that under that classification he would not be required to report his location to law enforcement. But under S.B. 10 he would be subject to stringent reporting requirements for 25 years. On appeal, he argued that S.B. 10’s retroactive application violated § 28, Article II of the Ohio Constitution, which prohibits retroactive laws.
The Ohio High Court agreed, finding a violation of the Retroactivity Clause of the Ohio Constitution. Writing for a 5-2 majority, Justice Paul Pfeifer distinguished between retroactive laws that are “remedial” and those that are “punitive” in nature. Punitive laws are those which affect or modify substantive rights; remedial laws affect the recognition, protection or enforcement of substantive rights. Under Ohio’s Constitution, remedial laws may apply retroactively, but punitive laws cannot.
Justice Pfiefer reasoned that S.B. 10 was punitive rather than remedial. The requirements of Megan’s Law had previously been compared to the “inconvenience” of renewing a driver’s license. But under S.B. 10, Williams was required to register in every county in which he lived, worked and went to school every 180 days for 25 years—a significantly higher burden. In addition, S.B. 10’s classifications were imposed automatically based on the crime, and they cannot be challenged in court. Williams was in a much worse position under S.B. 10 because the statute imposed “new or additional burdens, duties, obligations or liabilities” which did not exist under Megan’s Law, the effective law when he committed the crime. Thus, S.B. 10 was an ex post facto law which violated the Retroactivity Clause. Williams was entitled to a hearing to have a judge classify him according to Megan’s Law, based on the circumstances of the crime and his likelihood of recidivism.
Justice Terrence O’Donnell, writing in dissent for himself and Justice Cupp, argued that S.B. 10’s requirements were civil and remedial in nature, rather than punitive. Because the statute’s primary purpose is to protect the public rather than punish offenders, he reasoned, the statute did not violate the Retroactivity Clause, and Williams was properly reclassified under S.B. 10.