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AWA and the Separation of Powers

Back in 1999, Christian Bodyke pled out to a B & E and a count of sexual battery.  He got six months on the former and two years on the latter, run concurrently.   The court also determined that he was a "sexually oriented offender" -- at that time the lowest level of classifcation -- and thus had to annually register with the county sheriff for the next decade.

In early December of 2007, Bodyke got a letter from the Ohio Attorney General telling him he'd been reclassified as a "Tier III" offender.  Now, he'd have to register with the sheriff every ninety days.  Not just in the county that he resided in; he also had to register in the county where he was employed, and if he went to school somewhere, that county as well. 

And not just for the remaining two years of his notification requirement.  He'd have to do that for the rest of his life.

Bodyke's case was argued in the Ohio Supreme Court yesterday, the third time a new sex offender registration act has made it to the high court.  The predominant issue has been the retroactive effect of the laws:  past offenders, like Bodyke, have found themselves facing more onerous registration and notification requirements than when they were convicted.  That argument's never made any headway:  it was rejected in State v. Cook the first time it was raised when the Ohio legislature passed its version of Megan's law in 1996, and again in State v. Ferguson, when the laws were tightened.  (Ferguson was little more than an advisory opinion:  it applied to the law before the Adam Walsh Act was implemented, but was decided after AWA went into effect.)

The court has rejected the retroactivity challenges by holding that the laws in question are "remedial," rather than punitive.  This fiction has become increasingly harder to maintain; while Cook was a unanimous decision, by the time Ferguson was decided, three Justices -- Lanzinger, Lundberg Stratton, and Pfeifer -- dissented on the grounds that the increasingly onerous registration and notification requirements of the law had moved it out of the "remedial" category and into "punitive" territory.

But the bigger problem for AWA comes from the fact that  judges, especially those on the Supreme Court, don't like to be told what to do, particularly by people who aren't judges.  Under the old sex offender law, judges got to make the determination of who was a "sexually oriented offender," an "habitual sexual offender," or a "sexual predator."  To be sure, there wasn't a whole lot of work involved in the first two classifications:  if you committed a sexually oriented offense, then you were a sexually oriented offender, unless you'd done it before, in which case you were an habitual sexual offender.  As for the sexual predator, the judge got to consider a whole laundry list of factors, as well as anything else he could think of and, if that didn't do the trick, he could always flip a coin.  The bottom line was that whatever a person's classification was, there was a journal entry with a judge's signature on the bottom telling him that. 

Not so with AWA.   All the guesswork is gone:  commit a rape, you're a Tier III offender.  Have sex with a fifteen-year-old if you're twenty, you're a Tier II.  Grope a woman in a bar, you're a Tier I.  And it's not a judge who tells you that, it's the attorney general.

And that's where the attorney for the AG's office ran into a buzz-saw yesterday.  He began by creating an additional problem:  he told the justices that AWA was passed because the Federal government told Ohio it "had" to pass the law.  However much the concept of federalism has eroded from what the Founders might have intended, the idea that Congress could tell state legislatures what laws to enact was a bit too much for Justice Lundberg Stratton.  Under questioning by her and Chief Justice Moyer, the assistant AG finally conceded what everybody knew:  the reason Ohio passed the law was to become eligible for certain funding from the Justice Department, which was to go to states which were in "full compliance" with the Federal mandates.  Three years later, no state is in full compliance.  Ohio is closest, but the joke's on us anyway:  no money was ever appropriated for the special funding.

But if the assistant AG was unsettled by getting it wrong on the Federal "mandate," he had to be positively unnerved by the next question from the Chief Justice:

I'd like you to talk about the separation of powers issue.  I want to make sure... that we don't give to another branch of government the authority to undo a judicial order because the General Assembly has decided, for whatever reason, "We simply want to change the order"... How does the General Assembly... give to the Attorney General's office the authority to undo, to change, a court order?

Moyer's vote is critical for the State; he was one of the four-member majority that barely upheld the sex offender statute in Ferguson last year.  The nice thing for the defendants in this situation is that they can go shopping for a majority, picking up a vote here on separation of powers, a few votes there on retroactivity...

Frankly, the debate on the finer legal points of the law obscures the real reason for tossing it:  it's stupid.  Just about every study done of such laws show that they have no impact on the number of sex crimes committed, the number of sex offenses against children, or the rates of recidivism of sex offenders.  In fact, by overclassifying offenders -- 26,000 offenders were reclassified to Tier III by AWA -- they tend to strain the budgets of law enforcement officials and prevent them from keeping an eye on the most dangerous offenders.

But if they want to get rid of it, separation of powers will do just fine.

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