Merit Decision: Mandatory Sex Offender Registration and Address-Verification Requirements Do Not Constitute Cruel and Unusual Punishment. State v. Blankenship.

On November 12, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Blankenship, 2015-Ohio-4624. In a 5-2 opinion authored by Justice Lanzinger, joined in full by Chief Justice O’Connor and Justice French, and in which Justice O’Donnell, joined by Justice Kennedy concurred in judgment only, the court held that the registration and address-verification requirements for Tier II sex offenders under Chapter 2950 do not constitute cruel and unusual punishment under either the Eighth Amendment or Article I Section 9 of the Ohio Constitution. Justices Pfeifer and O’Neill each wrote a dissent in which the other joined. The case was argued March 10, 2015.

Case Background

In 2011, Travis Blankenship began communicating with M.H. through a social media site. Blankenship told M.H. that he was twenty-one, and she told him that she was fifteen. The two began a sexual relationship which both described as consensual.

Blankenship was charged under a bill of information with one count of unlawful sexual conduct with a minor over 13 but under 16, a fourth degree felony in violation of R.C. 2907.04. Blankenship pled guilty and was evaluated by a psychologist as part of the court-ordered 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. But while the presentence investigation was pending, Blankenship contacted the victim and lied about that to the psychologist. As a result the court postponed the sentencing and ordered a re-evaluation. The psychologist concluded that Blankenship’s contact with the victim did not change his opinion.

The trial court sentenced Blankenship to five years of community control, with conditions, including a six month jail sentence that was suspended after Blankenship had served twelve days.  The judge also classified Blankenship as a Tier II sex offender/child victim offender pursuant to R.C. 2950.01(F)(1)(b).  This classification imposes registration requirements on Blankenship and in person address verification requirements every 180 days for 25 years. The Second District Court of Appeals affirmed the conviction in a split decision, finding that the sentence did not violate the Eighth Amendment.

Read the oral argument preview of the case here and an analysis of that argument here.

Key Statutes and 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 amends R.C. 2950 and establishes a three tier system for sex offenders with various registration, address verification, and community notification requirements.)

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

Kennedy v. Louisiana 544 U.S. 407 (2008) (“The [Eighth] Amendment proscribes ‘all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.’)

Graham v. Florida 200 U.S. 321 (2011) (In determining a categorical rule as it relates to the Eighth Amendment the court looks to 1) societal standards 2) history and precedent of Eighth Amendment jurisprudence. Proportionality of the punishment to the crime committed is central to this analysis.)

McDougle v. Maxwell,  1 Ohio St.2d 68 (1964) (In Ohio, a punishment is cruel and unusual when it “would be considered shocking to any reasonable person.”)

State v. Chaffin, 30 Ohio St.2d 13 (1964) (“A punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense to shock the sense of justice of the community.”)(syllabus paragraph three.)

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.)

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.”)

Merit Decision

Background Information

The federal Adam Walsh Act was signed into law July 27, 2006 by President Bush.  The Act created a registry which requires sex offenders to be classified in one of three tiers, based solely on the crime committed. On June 27, 2007, Ohio enacted Senate Bill 10, which amended Chapter 2950 of the Ohio Revised Code, to bring Ohio into compliance with the Adam Walsh Act. Ohio established a three tier classification system like the federal system to comply with the Act.

A Tier II sex offender/child victim offender, which is the classification involved in this case, requires the offender to register in person with the sheriff of the county where he establishes residency within three days of coming into that county, and also with the sheriff of any county in which the offender attends school or is employed. The offender must verify his residence address, place of employment, and place of education in person every 180 days for 25 years.

Blankenship’s Argument

Blankenship argued that the 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. In addition to Blankenship’s challenge to the classification system, the court also considered the registration requirements. The court considered both arguments under both the federal and state constitutions.

Blankenship argued that the court should extend its holding in In Re C.P. to young adults such as himself, and emphasized the consensual nature of the relationship with M.H., the psychologist’s testimony that he is not likely to re-offend and was not, in his opinion, a sex offender, and the fact that the judge let him out of jail after serving only twelve days of his sentence.

None of this found any traction with the majority. Justice Lanzinger emphasizes in her majority opinion that regardless of the psychologist’s testimony in this case, a trial judge has no discretion under this statutory scheme, which provides for automatic consequences, based on the conviction.

Executive Summary

Blankenship failed to convince the majority that Tier II sex-offender registration and address-verification requirements are cruel and unusual punishment under either the U.S. or the Ohio Constitutions. The court found these requirements did not meet the high burden of being so extreme as to be grossly disproportionate to the crime, or shocking to a reasonable person.

The court was also not convinced that a young adult is entitled to the same considerations here as a juvenile offender, especially when the legislature has so clearly tied punishments to the relative ages of the parties involved.

Cruel and Unusual Punishment

Federal Law

The key concept in Eighth Amendment jurisprudence is proportionality. Is the punishment disproportionate to the crime? These proportionality challenges fall into two categories-challenges to the length of the sentence in a particular case, and categorical restrictions.  In recent years, the U.S. Supreme Court has imposed a number of categorical restrictions on the death penalty, banning it for juveniles who commit such crimes before they are 18, for nonhomicide offenses, and for defendants with low mental functioning.  The U.S. Supreme Court has also banned life without parole for juvenile nonhomicide offenders.

Blankenship argued that the court should adopt a categorical restriction against Tier II registration requirements for young adult offenders like himself who present a low risk of recidivism, who have a consensual relationship with the victim, and whose psychological profile shows none of the feature of typical sex offenders.

Test for a Categorical Rule

To adopt a categorical rule in an Eighth Amendment challenge, a two-step process is required by the U.S. Supreme Court. The first is to determine whether there is a national consensus against the sentence at issue, and Blankenship conceded there was none.   The second is an independent determination of three factors: (1) the culpability of the offender in light of his crime and characteristics, (2) the severity of the punishment in question, (3) and the penological justification. Justice Lanzinger examines all three and finds they disfavor any new categorical rule in this situation.

Blankenship’s Culpability

Because of the statutory scheme at issue here, Blankenship is a sex offender as a matter of law. The court was simply not willing to lump Blankenship’s behavior into the lesser culpability of juvenile offenders as he argued it should. While Blankenship is a young adult, he is still an adult, and was six years older than M.H. The legislature has chosen to make a sex offense with that much of an age difference more deserving of punishment.

Severity of the Punishment

Blankenship could have received eighteen months for the offense he committed. The Ohio legislature has chosen to made gradations in the severity of punishment dependent on the age of the victim to reflect a policy that the culpability of the offender increases as the age of the victim decreases.  Furthermore, as Justice Lanzinger emphasizes, a fifteen year old is not legally capable of consenting to sexual conduct with an adult. Finally, the court does not find the Tier II registration and verification requirements so severe as to amount to cruel and unusual punishment under the federal Constitution.

Penological Justifications

The stated justification of Ohio’s Adam Walsh Act was “to protect the safety and general welfare of the people of this state.” While conceding that the sex-offender registration schemes have been criticized on the ground that they don’t serve the intended purpose of community protection, the court also acknowledged the high rate of recidivism and resistance to treatment among sex offenders.  The court simply would not take the next step and say that the requirements of semiannual address registration and verification were so unjustified as to constitute cruel and unusual punishment.

The Ohio Constitution

In addition to a federal constitutional challenge, Blankenship challenged his sentence under the Ohio Constitution.  A key factor in such a state-law challenge, as with an Eighth Amendment challenge, is proportionality. As articulated in McDougle v. Maxwell, state cases involving cruel and unusual punishment are rare, and  are “limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person.” To the majority, this is not such a case.

Unlike the majority of states, in 2011 the court determined in State v. Williams that the sex-offender reporting and notification requirements in Ohio’s version of the Adam Walsh Act are punitive in nature, and in In re C.P. held that such requirements violate the Eighth Amendment and  Article I Section 9 when applied to certain juvenile offenders. But the court had not determined whether this punishment is cruel and unusual under the state constitution when applied to adults, and determines it is not.

Here’s the crux of the court’s opinion, rejecting Blankenship’s constitutional challenge:

“…Blankenship has not overcome the hurdle of showing that his punishment is cruel or unusual. The concerns that led us to conclude that the requirement of lifetime registration for certain juvenile offenders violated Ohio’s prohibition against cruel and unusual punishment in In re C.P. are largely absent when dealing with an adult who engaged in unlawful sexual conduct with a minor. ”

Justice O’Donnell Concurs in Judgment Only

Justice O’Donnell spent more than 30 paragraphs reviewing the entire history of the sex offender registration scheme, from the adoption of Ohio’s version of Megan’s Law to the present.  Those interested in a re-hash of all of this will find this informative.  Mostly, O’Donnell uses this as an opportunity again to rail at the court’s determination in State v. Williams that the classification, registration, and community-notification provisions in R.C. 2950 are punitive—a position with which he has often and loudly expressed his displeasure. And he expressly states that he would overrule both Williams and C.P. Justice Kennedy joined him in this case in concurring in judgment only. But because the effect of the majority opinion is to uphold Blankenship’s sentence, O’Donnell could and did go along with the result.

The Dissents

By Justice Pfeifer

Justice Pfeifer wasn’t willing to go so far as to declare the registration and address-verification requirements cruel and unusual punishment with respect to all Tier II sex offenders. But he did find these requirements cruel and usual as applied to Blankenship. His dissent mirrors the concerns he expressed at oral argument about the absence of any discretion in the existing statutory scheme, and  a “one-size-fits-all standard” that affords no proportionality.

Under a federal Constitutional analysis, Pfeifer finds the sentence flawed for lack of proportionality.  He finds it unacceptable that an offender like Blankenship, who was released after twelve days, and was deemed at a low risk of re-offending, would have the same reporting requirements as someone who received the maximum sentence, and who had a high risk of reoffending.

Under a state constitutional “shocking to a reasonable person” standard, he would find Blankenship’s bi-annual reporting requirement for twenty five years as a consequence of a twelve day sentence shocking to a reasonable person.

By Justice O’Neill

Justice O’Neill also decries “the one-size-fits-all mentality that increasingly dictates criminal sentencing in Ohio,” noting that the only evidence in the case, from a psychologist, was that any risk of re-offending in this case was low. O’Neill would find the punishment in this case grossly disproportionate to the crime, commenting that “for offenders like Blankenship, these registration requirements guarantee an unnecessarily long term of public humiliation only. And they effectively destroy any hope of leading a successful and productive life from that point forward.”

Justices Pfeifer and O’Neill each joined the other’s dissent.

Case Syllabus

None

Concluding Observations

Except for predicting the positions of Justices Pfeifer and O’Neill, I missed on this one, although in hindsight, the outcome should have been obvious (it always is in hindsight). It’s one thing to declare an existing classification, registration, and community-notification scheme punitive, rather than civil, as the court boldly in State v. Williams, but quite another effectively to re-write the law by either imposing a hearing requirement or granting the trial judge some kind of discretion or individualized sentencing option when none is provided for in the statute.  Had the court done so, it would have had to done so pursuant to the Ohio Constitution.  For awhile at the oral argument, the questioning suggested some sympathy for that position. But I think in the end, Blankenship just didn’t give the Chief, or Justices Lanzinger or French any specific or individualized reason to extend to him as a young adult the special protections granted to  juveniles in the C.P. case. Insisting that the sexual relationship he had with M.H. was consensual, when M.H., who agreed it was consensual, was legally too young to give consent, was unpersuasive. Also, Blankenship had no good answers to Justice French’s questions about the parameters of an as applied challenge here. That did not bother Justice Pfeifer, however, who was satisfied with limiting the as-applied challenge just to Blankenship in this case.

Still, in the section analyzing the penological justifications for this Tier II registration requirement, Justice Lanzinger was fair enough, as is her wont, to admit that the sex-offender registration schemes have been roundly criticized as not serving their intended purpose.

Justice O’Donnell once again used this opportunity to rail against the court’s decisions in C.P. and Williams,  which he has done often, and loudly. It is worth noting that Justice Pfeifer, author of both decisions, and Justice Lanzinger, who was in the majority in both, are both age-limited, and cannot run for re-election next year.  So depending on who joins the court in the future, Justice O’Donnell may yet have his way on this.

It was clear from the argument that Justices Pfeifer and O’Neill were ready to accept the defense position, and they did. I found Justice Pfeifer’s dissent especially persuasive.

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