Oral Argument Preview: Do Mandatory Sex Offender Classifications Constitute Cruel and Unusual Punishment? State of Ohio v. Travis Blankenship.

Update: On November 12, 2015, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On March 10, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Travis Blankenship, 2014-0363. At issue in this case is whether the mandatory sex offender classifications created by Ohio’s version of the Adam Walsh Act in Senate Bill 10 constitute cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution and Article I, Section 9 of the Ohio Constitution

Background

In 2011, Appellant Travis Blankenship began communicating with a fifteen year old girl through a social media site.  Blankenship told the girl that he was twenty-one, and she told him that she was fifteen. Despite her status as a minor, Blankenship and the girl began what both described as a consensual sexual relationship.

In May of 2012, Blankenship waived indictment and pled guilty to a bill of information to one count of unlawful sexual conduct with a minor, a fourth degree felony. Prior to his sentencing, Blankenship’s attorney hired a psychologist to evaluate Blankenship as part of the pre-sentence investigation. The psychologist opined that Blankenship is not a sexual offender, is not likely to commit another sexual oriented offense, and does not require sexual offender therapy.

It was subsequently discovered, however, that Blankenship had initiated contact with the victim in violation of a court order. The trial court postponed sentencing and ordered the psychologist to re-evaluate Blankenship in light of the new information. The psychologist concluded that Blankenship’s contact with the victim did not change his opinion.

On September 28, 2012, the trial court sentenced Blankenship to five years of community control and classified him as a Tier II Sex Offender pursuant to R.C. 2950.01(F)(1)(b).The court further ordered Blankenship to pay a $2,500 fine and to serve six months in the Clark County Jail. Blankenship only served twelve days, because the trial court granted early release.

Blankenship filed an appeal arguing that his classification as a Tier II Sex Offender was cruel and unusual punishment prohibited by the Eighth Amendment and by the Ohio Constitution. The Second District Court of Appeals affirmed the conviction in a split decision, finding that the Supreme Court of Ohio’s Eighth Amendment analysis in In re C.P. was inapplicable to Blankenship because Blankenship was not a juvenile when he committed the sexual offense. The dissent would find the punishment grossly disproportionate to the offense in this case and would apply some of the rationale of In Re C.P. to certain young adults, such as Blankenship who have no prior felonies and who pose no real threat to the community.

Key Precedent

Eighth Amendment to the U.S. Constitution & Article I, Section 9 of the Ohio Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

Ohio Senate Bill 10 (Ohio’s version of the federal Adam Walsh Act—which establishes the three tier system for sex offenders—that amends R.C. 2950 and includes a provision for mandatory sex offender classification for certain offenses.)

R.C. 2950 (creates registration and notification requirements for sexual predators, habitual sex offenders and sexually oriented offenders)

In re C.P., 131 Ohio St.3d 513 (2012)( “To the extent that it imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9.”)

State v. Bradley, 2011-Ohio-6266 (1st Dist.)(Tier II registration and notification requirements imposed on a 30 year old defendant, who attempted to have intercourse with a fourteen year old, does not constitute one of those rare cases where punishment is so extreme as to be grossly disproportionate as to violate the Eighth Amendment or Article I, Section 9.)

State v. Williams, 129 Ohio St.3d 344 (2011) (Following the enactment of S.B. 10 all doubt has been removed: the classification, registration, and community-notification provisions in R.C. 2950 are punitive.)

Blankenship’s Argument

Blankenship argues that the mandatory nature of the sex offender classification in Ohio violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

First, this case deals with an individual who committed a sexually oriented offense but was determined not to be a sexual offender. Despite not being a sex offender, S.B. 10 requires him to be labeled as a Tier II sex offender and register his home address, work address, and any school address in person with the sheriff of the appropriate county every 180 days for the next 25 years or face criminal prosecution and incarceration. Being labeled a sex offender despite the record demonstrating he is not a sex offender violates the Eighth Amendment.

Second, Ohio was in compliance with national sex offender registration schemes that were put in place after high-profile child sex cases. S.B. 10, however, drastically changed the landscape of Ohio’s registration scheme by eliminating the requirement that classification levels be determined after a full hearing. Rather, S.B. 10 provides that classifications be automatic, thereby removing judicial discretion from the classification process. Further, S.B. 10 increases the length of time offenders must register as well as increasing the amount of information required to be registered. Thus, S.B. 10 is punitive in nature and violates the Eighth Amendment.

Third, some offenders that are punished with mandatory registration under S.B. 10 fall into the same class as juveniles under In re C.P. Much of the recent science regarding juveniles and brain development is equally applicable to young adults in their early twenties. Brain imaging technologies shows that a person’s brain isn’t fully developed until the mid-20s, including the areas governing impulse control, reasoning, and judgment. Therefore, young adults should fall into the less culpable class protected in In re C.P.

Lastly, Ohio Constitution, Article I, Section 9 provides Ohioans protection against cruel and unusual punishments independent of the protection provided by the Eighth Amendment. Punishing people whom the record reflects are not sex offenders under S.B. 10—by requiring them to register for decades—shocks the conscience of a reasonable person. In consideration of the social stigma and inevitable interference with employability, travel, and housing, the mandatory registration scheme under S.B. 10 shocks the sense of justice of the community and therefore violates Ohio’s prohibition against cruel and unusual punishments.

State’s Argument

The State argues that the mandatory registration scheme under S.B. 10 serves a legitimate penological purpose and that In re C.P. should not be extended to apply to Blankenship because he was not a juvenile.

First and foremost, Blankenship is a sex offender and sex offender is a legal classification for someone convicted of a sexual oriented offense under Ohio law. For the purposes of the law, sex offender status is not something established by a psychologist.

Second, the court’s analysis in In re C.P. has very little applicability to Blankenship. Just as the First District determined in Bradley, In re C.P. does not apply when the defendant commits the sexual oriented offense as an adult. Although Blankenship argues he has a relatively low risk of recidivism, he does not fit into class protected by In re C.P. and the application of In re C.P. here would create a slippery slope.

Third, there is a national consensus that registration for sex offenders does not constitute cruel and unusual punishment. In fact, 94% of Americans are in favor of laws requiring registration for people convicted of child molestation and registration promotes the civil goal of public safety. Thus, the national consensus in favor of sex offender registries strongly militates against Blankenship’s Eighth Amendment challenge.

Fourth, although Blankenship argues he was a young adult and therefore less culpable, the record shows the opposite. Blankenship met the victim over the internet and knew of her age before twice engaging in intercourse. While the criminal case was pending, he violated a court order by having contact with the victim. Blankenship may argue that he had a loving relationship with his victim, but his behavior is also typical of grooming behavior by sexual predators.

Lastly, the stated purpose of S.B. 10 is to protect the safety and general welfare of Ohioans and Blankenship was not punished severely at trial and only served a fraction of his six month sentence. His registration requirements are justified under retribution and deterrence and protects the pubic against future crime. As such, requiring Blankenship to be classified as a sex offender does not violate the Eighth Amendment.

Blankenship’s Proposed Proposition of Law

Mandatory sex offender classifications under Senate Bill 10 constitute cruel and unusual punishment where the classification is grossly disproportionate to the nature of the offense and character of the offender. Eighth and Fourteenth Amendments to the United States Constitution; Article 1, Section 9 of the Ohio Constitution.

State’s Proposed Counter Proposition of Law

The R.C. Chapter 2950 Tier II registration requirements for those persons convicted of having unlawful sexual conduct with a minor when the offender is twenty-one years old and the victim is fifteen years old are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and the community’s sense of justice.

Amicus Brief in Support of the State

The Ohio Prosecuting Attorneys Association and Franklin County Prosecutor Ron O’Brien filed briefs in support of the State. The Prosecuting Attorneys Association argues that Tier II registration for unlawful sexual conduct with a minor is not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person.

O’Brien argues in his brief that the Adam Walsh Act (which mandates the three tier sex offender classifications) does not impose “punishment” for federal constitutional purposes and does not impose cruel and unusual punishment under either the federal or Ohio constitutions.

Student Contributor: Cameron Downer

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