The Supreme Court of Ohio has signaled its intent to further address some issues dealing with failure to register under Ohio’s version of Megan’s Law and the Adam Walsh Act.
In 1994, when a convicted New Jersey sex offender raped and killed a neighbor’s child, New Jersey passed “Megan’s Law,” which required sex offenders to register with local authorities and required community notification that sex offenders were living in the area.
Congress soon followed suit and passed a law requiring states to establish mechanisms for community notification and registration of sex offenders.
In 1996 Ohio enacted its version of Megan’s law. The law created a comprehensive registration, classification, and community-notification system for sex offenders.
In 2006 Congress passed the Adam Walsh Act, which created national standards for sex-offender registration, classification and community notification. Sex offenders were divided into Tier I, II, or III, based solely on the crime committed. The length of time offenders are required to update this registry information depends on the category the offender is in.
In 2007, the Ohio legislature repealed Megan’s law and replaced it with its own Adam Walsh Act that included the three tier system required by Congress. The former categories of sexually oriented offender, habitual sex offender and sexual predator have been eliminated. Instead, offenders are classified as Tier I, II, or III based solely on the offense committed. Courts are no longer required to hold classification hearings. Judges no longer have discretion to determine which classification fits an offender. Finally, under the Ohio Attorney General, not the courts, was given the authority to reclassify existing offenders.
In State v. Bodyke, 2010-Ohio-2424, the defendant had been classified as a sexually-oriented offender under Megan’s law—the lowest level offender. Under that law, he was required to register with the county sheriff every year for ten years. He was not subject to community notification.
Under the reclassification provisions of the Adam Walsh Act, Bodyke was classified as a Tier III offender–the most serious level of sexual offense– which required him to personally register with the local sheriff every 90 days for the rest of his life. He was also subject for the first time to community-notification provisions. Bodyke challenged the constitutionality of the re-classification provisions of the Adam Walsh Act. The Ohio high court struck down the reclassification provisions of Ohio’s Adam Walsh Act and severed it from the rest of the statute. The Court held that the classification, notification, and registration scheme under the Adam Walsh Act could not be applied retroactively to offenders classified under Megan’s Law, nor could the Attorney General reclassify offenders already classified by judges.
After Bodyke was decided, problems have continued to arise with offenders who violate their registration obligations.
In 2011, in State v. Gingell, 2011-Ohio-1481, the defendant was classified as a sexually oriented offender under Megan’s law and required to verify his address once a year for ten years. Failure to register was a fifth degree felony. Under the Adam Walsh Act he was required to register every 90 days for life. Failure to register under that law was a first-degree felony. Gingell was charged with failure to register every 90 days—a substantially increased registration requirement. He was convicted of a first degree felony for that failure to register. The Supreme Court of Ohio reversed his conviction and held that his obligations were limited to those imposed under Megan’s Law.
In October the high court accepted the state’s appeal in State v. Brunning, 2011-1066. The issue presented by the prosecution is, “are courts required to vacate convictions of sex offenders who were classified under Megan’s Law, but were indicted under the Adam Walsh Act when their conduct constituted a violation under either act?”
After accepting the Brunning case, last week the Supreme Court of Ohio granted reconsideration (something it does rarely) on whether to hear a case. It has now agreed to hear State v. Campbell and State v. Gilbert. Both of these cases deal with convictions of sex offenders for failure to register their current addresses. In each case, the duty to register arose from a violation of Ohio’s Megan’s law, but the failure came under Ohio’s Adam Walsh Act. The issue in both cases is whether courts must vacate failure-to-register convictions of sex offenders classified under Megan’s Law, but indicted under the Adam Walsh Act when their conduct was a violation under either act.
In all of these cases, the defense is arguing that the state is just trying to get around the high court’s decision in Bodyke.