What’s On Their Minds: 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.

“What is wrong with affording a hearing instead of a cookie-cutter one size fits all? Allowing the defendant to come in and individualize it?” Justice Paul Pfeifer, to the prosecutor.

On March 10, 2015, the Supreme Court of Ohio heard 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.

Case 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 was not a sex offender, was not likely to commit another sexual oriented offense, and did not require sex 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). That means Blankenship must register in person within three days with the sheriff in the county where he establishes residency, and also with the sheriff in the county where he works or goes to school. He must verify these addresses in person every 180 days for 25 years.

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.

Read the oral argument preview of the case here.

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.)

Smith v. Doe​, 538 U.S. 84 (2003) (​the retroactive application of Alaska’s Sex Offender Registration Act is non-punitive and therefore does not violate the ​Ex Post Facto clause. The Act is intended as civil in nature and any stigma resulting from registration does not render the act effectively punitive, since dissemination of the registration information does not constitute the imposition of any significant affirmative disability or restraint.)

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. Williams, 2011-Ohio-3374 (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.)

Arguing Counsel

Katherine R. Ross-Kinzie, Office of the Ohio Public Defender, for Defendant-Appellant Travis Blankenship

Ryan A. Saunders, Assistant Prosecuting Attorney, Clark County, for Plaintiff-Appellee State of Ohio

At Oral Argument

Blankenship’s Argument

This court has already recognized that the classification, registration, and community-notification provisions in R.C. 2950 are punitive. Classification of an individual as a sex offender should not be mandatory when a trial court is presented with evidence that the individual is not a sex offender. This classification scheme, mandated under S.B. 10, constitutes cruel and unusual punishment, prohibited by the Eighth Amendment and by Article I, Section 9 of the Ohio Constitution.  Punishment should be graduated and proportionate to the offense.

Blankenship should have been granted a hearing in this case. As part of the pre-sentence investigation, a psychologist who met and evaluated Blankenship made a determination that Blankenship was not a sex offender. That finding was not controverted. When the record demonstrates, as it does in this case, that an individual is not a sex offender, the trial court should be able to determine whether punishing him as a sex offender would be grossly disproportionate to the nature of the offense and the character of the offender.  But the trial court in this case felt it could not do so, because its hands were tied by the mandatory classification and registration requirements set forth in the statute.

The Ohio Constitution is a document of independent force.  Article I, Section 9 of the Ohio Constitution provides unique protections to Ohioans separate from the Eighth Amendment.

State’s Argument

Travis Blankenship is a sex offender.  He pled guilty to a sex offense, being fully aware of the classification and registration consequences. Furthermore, the psychologist’s report suggests the likelihood of recidivism will increase over time (defense counsel challenged this in rebuttal as data based on a static assessment tool, not an individualized assessment.)

The U.S. Supreme Court has held that sex offender registration laws are civil, not punitive in nature.  So clearly the Supreme Court of Ohio cannot find an Eighth Amendment violation here.  And all that the Ohio high court narrowly held in State v. Williams was that the retroactive application of new sex offender classifications violated the Ohio Constitution’s ban on retroactive laws. The General Assembly was well within its police power when it designated automatic registration and classification requirements.

This case does not reach the level of cruel and unusual punishment. As a matter of law it is not cruel and unusual punishment to have to register twice a year. Nor is Blankenship entitled to the protections of In Re C.P., because he is not a juvenile.

This court has always held that Article I, Section 9 of the Ohio Constitution and the Eighth Amendment are co-extensive—there is no case law where the analyses of the two diverge.  If the court were to find the registration and classification requirements unconstitutional, it would have to do so under the state constitution.

What Was On Their Minds

Cruel and Unusual Punishment

How does the court get from mandatory classification to cruel and unusual punishment, asked Justice O’Neill?

The bases for the argument about cruel and unusual punishment are that a psychologist says this may have just been a one-time incident with this one particular person, not likely to repeat, and not in treatment because he doesn’t need it, asked Chief Justice O’Connor?

What exactly is it that is cruel and unusual, asked Justice O’Donnell? The branding? The 25 years of registration?

Article I Section 9 of the Ohio Constitution

Couldn’t the court interpret the Ohio Constitution differently here? The court isn’t bound by the U.S. Supreme Court’s Eighth Amendment analysis, is it, asked Justice French?

In a key question of the day, Justice Lanzinger asked, hasn’t the court already departed from the federal position in State v. Williams? If that holding is viewed broadly, can it not be argued that Section 9 provides greater protection under the Ohio Constitution in situations like this then are found under the Eighth Amendment?

Is there anything in the Ohio Constitution that would deviate from the Eighth Amendment analysis, asked Chief Justice O’Connor, commenting that the Supreme Court of Ohio has abandoned the federal view that this scheme is a civil sanction. This key exchange occurred between the Chief and the Prosecutor:

The Chief: “So our reading of the Eighth Amendment is not formed by the application of the cases you are relying on because you keep going back to the position that according to the U. S. Supreme Court,  this is civil not punitive—we have abandoned that—here in Ohio we see things differently.”

The Prosecutor: “If the court sees this as punitive under Section 9 the court could find there is a violation of the Ohio Constitution.”

Later, though, in Blankenship’s rebuttal, the Chief  turned right around and asked defense counsel exactly what in Section 9 supported the contention that it provided greater protection in this area.  Defense counsel cited only CP and Arnold v. Cleveland, the seminal case declaring the Ohio Constitution to be a document of independent force. This exchange occurred:

The Chief:

“You would admit that this is uncharted territory? First impression? And we would be the only court in the country to see things your way?”

Defense counsel: “yes.”

Civil v. Punitive

Is what is driving the defense argument this court’s determination that sex offender classification is now criminal, asked Justice O’Donnell?  (answer: yes) Later, he asked the prosecutor if he was arguing the classification scheme was a civil sanction. (prosecutor’s answer: yes)

Was the prosecutor saying the court could declare the classification and registration scheme to be punitive and not civil only if attempting to apply it retroactively, asked Chief Justice O’Connor? But for all other applications, it is akin to a civil provision? Is that what the state was saying? (answer: yes) Later, she pretty emphatically suggested that that ship has sailed, commenting to the prosecutor that “I think you can sense—if you can’t there is a problem there-a majority of this court finds this is a criminal, punitive statute.”

This individual poses no threat to the community, and yet for 25 years he’s not allowed to live near a school, is he, asked Justice O’Neill? How is that not punitive for a young man who according to a psychologist and at least one court of appeals judge poses no threat to the community? Justice Pfeifer made several comments along the same lines, about how this would affect this young man for years to come, and how he would have to explain this classification to his own children.

Would Ohio be the first state to declare the registration and classification scheme of the Adam Walsh Amendments to be punitive in nature, asked Justice Lanzinger?

Blankenship’s Status

Chief Justice O’Connor challenged defense counsel for saying Blankenship was not a sex offender. Wasn’t it more accurate to say the likelihood of his re-offending is not high and he is not undergoing treatment, since by statute he is a sex offender? He pled guilty to being a sex offender, she noted.

Sex Offender Classification Requirements

How else could a person be defined as a sex offender other than under the law, asked Chief Justice O’Connor?

Isn’t that the problem in Ohio right now? When there is a conviction for this crime, the person convicted is per se a sex offender, asked Justice O’Neill? Other than the psychologist in this case, who else says Blankenship is not a sex offender? Does this need to be determined on a case-by-case basis, or is it a per se rule?

The state’s argument wouldn’t change even if the facts were different, with absolutely zero percent chance of recidivism, asked Justice French? No matter the facts, as a matter of law the classification is the same?

As Applied Challenge

If the court were to agree this is an as applied challenge, what standard would it use, asked Justice O’Donnell? How would the court describe the category of others and how would it instruct trial judges to make these kinds of determinations? Have any other jurisdictions considered such a challenge?

In another key question of the day, Justice French asked, to whom does this as applied challenge apply? What are the parameters of this challenge—only to those where there is evidence presented?

Isn’t this really an overbreadth challenge, asked Justice Lanzinger, noting how difficult it seemed to be to define the class to whom it applied.

In Re C.P.

In re CP involved a juvenile with a lifetime registration, so there were considerations in that case that are not present here since Blankenship was an adult and the victim was a juvenile, commented Chief Justice O’Connor.

Should the court go back and revisit CP, asked Justice O’Donnell? (prosecutor’s answer- the court should revisit Williams)

The Remedy Here

The current law does not provide for a hearing about whether someone should be registered, does it, asked Justice Lanzinger? (answer: it does not). Should it? Would a hearing be required in every case? Only when requested? And what would be done if requested at the trial court level?

Since a hearing isn’t provided for by the statute now, how would Blankenship get a hearing, asked Chief Justice O’Connor? And when would it occur?

Judicial or Legislative Matter?

Is this a matter the legislature should tend to, asked Justice Lanzinger? If the court were to require a hearing in regard to the registration, would the court not be legislating? Chief Justice O’Connor asked the same thing.

Does the General Assembly have the wisdom to know that one size fits all when it comes to cruel and unusual punishment, asked Justice Pfeifer?

How it Looks From the Bleachers

To Professor Bettman

This was a really hot bench on a very hot topic. Both student contributor Cam Downer and I agreed that this turned into an absolutely fascinating argument about the new judicial federalism.  He thinks it is too close to call.  I certainly can see why he thinks so, but I’m going out on a limb and calling this for the defense, although the court seemed very aware of the fact that it would be the first court in the country to do a cruel and unusual punishment analysis on this sex offender classification scheme. But it already put itself out there with its decision in Williams. And the court would have to do so under its own constitution, because as the Chief made very clear several times, it has abandoned the federal view of this being a civil sanction. That’s the new judicial federalism part. (You can read more about that here)

There is little doubt that Justices Pfeifer (author of both Williams  and CP) and O’Neill are ready to accept the defense position.  I think Justices Lanzinger and French are ready to, also. In  2008, in dissent in State v. Ferguson, Justice Lanzinger wrote that Chapter 2950 has evolved from remedial to punitive, so she has been of that mind for some time. I completely agree.  I’ve never been able to buy the fact that the classification, registration, and community notification provisions, where pertinent, are anything but punitive.  And Justice French seemed clearly troubled by the per se classification, regardless of individual facts.

The Chief played devil’s advocate to both counsel on this point.  She is more sympathetic to this argument when juveniles are involved, but she joined the majority in both CP  and Williams. And although the Chief kept emphasizing the difference between this case and CP,  I really think Williams is more on point.

Justice O’Donnell dissented in both, joined by then-Justice Cupp, and clearly finds this whole scheme civil in nature, for both juveniles and adults.  But he is also clearly respects stare decisis, so he may concur in judgment only while continuing to express his disagreement with the basic premise that this scheme is punitive.

The weakest aspects of the defense argument were the lack of a really satisfactory answer to the concerns of Justices Lanzinger, French, and O’Donnell about to whom other than Blankenship this “as applied” challenge would apply, and the lack of any real analysis for saying that Section 9 provides greater protection in this area than the Eighth Amendment does, other than to cite to CP.  As the Ohio court learned in the Robinette cases, just saying a state constitution provides greater protections doesn’t make it so.  Someone may really have to dig in to some old history to come up with a more solid basis for the defense position.  Its brief really didn’t provide any.

One last observation—I don’t think overturning this provision is an example of “legislating.” It is solely in the court’s purview to declare the classification scheme unconstitutional, and if it does so, it is  perfectly appropriate to suggest that an individualized hearing with individualized proof upon request, plus discretion in the trial court would cure the defect.

To Student Contributor Cameron Downer

This one is too close to call.

Shortly after defense counsel began argument, Chief Justice O’Connor made it clear that Blankenship—regardless of the psychologist report—was a sex offender by virtue of his committing a sexually oriented offense. She asked, “how else would you define a sex offender if not by the law?” The Chief later stated that it would be more accurate to say that Blankenship is a sex offender, but his chances of recidivism are low and he does not require treatment. Justices Lanzinger, French, and O’Donnell asked questions regarding whether the challenge was an “as-applied” or “over-breadth” challenge. Justice O’Neill asked how the appellant was going to “get up the hill” to an Eighth Amendment violation and pointed out that trial judge did not make a finding that Blankenship was not a sex offender.

Things got more interesting when the prosecutor began his argument. Right off the bat, he argued that mandatory registration was civil in nature—as opposed to punitive—and that the Ohio Supreme Court needs to revisit State v. Williams. Later on in the argument, the Chief made clear that counsel’s argument was not well taken and that Ohio sees things differently than the U.S. Supreme Court in this area.  Further, the Chief pointed out that the U.S. Supreme Court cases the State was relying on have no direct application to the case at hand. Along the same lines, Justice French, Justice Lanzinger, and the Chief all asked questions regarding new judicial federalism and whether the Ohio Constitution can provide more protection in this area than the federal constitution. In response to counsel’s argument that the matter is best left to the General Assembly, Justice Pfeifer asked, rhetorically, whether the General Assembly has the wisdom to create a one-size fits all approach to the Eighth Amendment. Lastly, and my personal favorite, Justice O’Neill kept questioning counsel about the harshness of the registration requirements until counsel conceded that it is punitive.

Before the case was argued, I would have thought that Blankenship would have to fight a large up-hill battle in order to win over any of the justices. After the questioning regarding the Ohio Constitution and new judicial federalism, however, I think that some justices feel that the mandatory registration and classification requirements may violate the Ohio Constitution; thus, there are situations in which a hearing should be conducted. Overall, I say this is one too close to call.


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