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Refining sexual predator classifications: job for the legislature or the courts?

I've written about a dozen posts on sexual predator designations in the past year.  One of the reasons for that is that it comes up a lot.  There have been about 170 criminal cases decided by the Ohio courts of appeals so far this month.  Almost 10% of them involved a sexual predator designation.  Another reason is that it's a pretty murky area of the law.  How murky is demonstrated by two excellent opinions out of the 8th District last week.  Interestingly, both opinions were in the same case.

State v. Pierce involved a defendant who, at age 24 in 1996, had been convicted of raping a 21-year-old "longtime" female friend during a cocaine binge (his, not hers).  He did ten years in prison, during which he was a model prisoner, getting his GED, attending college classes, obtaining certificates in various vocations, serving as a literacy tutor, and attending drug treatment.  He'd been going to AA regularly since his parole from prison, and the report prepared for the sexual predator hearing indicated his drug and alcohol addictions were in full remission.  He'd had several convictions prior to the rape, including a burglary and three drug offenses as an adult, but no other sexual offenses.

The trial court classified him as a sexual predator anyway, determining a likelihood of reoffending

due to the offender's age, prior criminal record, defendant's mental illness i.e. drug addiction, the nature of sexual conduct with the victim. Additional behavioral characteristics that contribute to the defendant's conduct also were considered. Specifically, his conduct during the prior burglary, the Static-99 evaluation of moderate-high risk category including four or more prior sentencing dates, prior non-sexual violence, unrelated victim and not living with a lover for at least two years.

How age played a factor is unclear; Pierce was 37 at the time of the hearing, and the Static-99 counts age as a factor indicating likelihood of recidivism only for those under 25.  Pierce appeared to have his drug addiction problem well under control.  The "not living with a lover for at least two years" overstates the factor; the Static-99 question is having an intimate adult relationship for at least two years.  It's somewhat understandable that a 37-year-old man who'd spent ten years of his life in prison wouldn't meet that factor, especially since he'd been out of prison less than a year at the time of the hearing.  If that factor hadn't counted against him, he would have fallen into the next lower category on the Static-99, which is "low to moderate" risk.  (A full guide to how the Static-99 is scored, and what it means, can be found here.  It's pretty much a must-read if you've got one of these cases.)

Judge Gallagher, writing for the majority, upheld the decision.  He noted that the Supreme Court had so substantially limited appellate review of sexual predator designations a couple month back in State v. Wilson (I discussed Wilson here) -- basically, the decision has to be upheld if there's some "competent, credible evidence" -- and that the trial court doesn't have to find a majority of the factors, and doesn't have to give them equal weight.  The way this all works out is that if the judge mentions anything in the statute, it's pretty much unreviewable. 

That obviously troubled Judge Gallagher.  He noted a "concern about overclassification of sexual predators," which he'd voiced in another decision just a few months ago.  (I handled the appeal, and discussed it here.)  He also cited the outline for the "model predator hearing" given by the Supreme Court in State v. Eppinger, but conceded that

Unfortunately, even rigid adherence to this model will not end the problem of inconsistent sexual predator labeling. Only the adoption of clearly defined classes of offenders, such as "child predators" or "serial rapists," coupled with standards based on specific conduct or prior conviction(s), will diminish the dangers of inconsistent labeling.

That's obviously a job for the legislature.  But maybe not, as pointed out in Judge Rocco's dissent.

Rocco begins by conceding that Wilson "essentially has directed appellate courts to treat trial court fact-finding in this area with kid gloves," and notes that because of the statute's elasticity, in every case there's going to be some evidence supporting a designation.  After acknowledging the "high hurdle" he has to leap to overcome the court's finding, he pretty much does exactly that.

Judge Rocco's main line of attack is on the Static-99 itself.  He argues first that the statute was enacted mainly to protect against sexual predation of children, and then points out that that whether the victim was a child isn't even a factor under the Static-99; Pierce scored higher than the defendant in State v. Gus, who'd abused his two step-daughters on numerous occasions over a nine-month period.  (The number of abusive incidents is also not a factor under the Static-99).  He notes the absurdity of a man who has a solitary incident involving an adult being regarded as more of a threat than a man who sexually abuses children over a long period of time, and concludes that

This court has the responsibility to ensure that overclassification is kept to a minimum.  We cannot fulfill  that responsibility by granting too much deference to the trial court and by using the justification that the legislature has not been "specific" enough.

I'm an admirer of Judge Gallagher, and have found his opinions consistently thorough and often thought-provoking.  I've got to go along with Judge Rocco on this one, though.  First, the result here was absurd, but more than that, it was unjust:  a man who, by all accounts, had done everything he could to turn his life around is now going to drag a sexual predator classification around with him for the rest of his life, because there's no way to get rid of it.  Second, waiting for the legislature to fix this is a non-starter; I don't know exactly what the legislative priorities are in Columbus right now, but I figure that making sure that fewer people are designated as sexual predators is somewhere on the middle of page 12.  This was a bad outcome, and it wasn't the first one, and it's not going to be the last until the appellate courts decide to do what they're supposed to do, which is not only to keep the lower courts in line, but especially to step in when an injustice has been done.

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