First, it means that my prognosticative abilities are no better than your friendly neighborhood crack addict’s; I’d predicted two weeks ago that the Supreme Court wouldn’t tackle an issue like sex offender registration and notification in an election year.  Well, they did; in State v. Bodyke, by a 5-1 vote, the Ohio Supreme Court yesterday struck down the portion of the Adam Walsh Act allowing the attorney general to change the registrations of offenders convicted before the Act’s passage in 2007.  The way that it arrived at that decision, and some parts of the opinion, proves most interesting.

Bodyke demonstrated the salient unfairness of the new law.  Back in 1999, Bodyke had entered a no contest plea to a count of sexual battery.  The judge gave him two years in prison and classified him as sexually oriented offender.  That was the lowest classification of sex offenders under the current law, and required him to register with the county sheriff every year for ten years.  After the AWA was passed in 2007, Bodyke got a letter from the Ohio Attorney General telling him that under the new act he’d been reclassified as a Tier III offender — the highest classification — and would now be required to register every 90 days for life, and was subject to the notification provisions as well:  everyone who resided within 1,000 feet of his residence would be told that a sex offender was living in their midst. 

In my post about the oral argument in the case, I’d mentioned that the separation of powers issue was the one most troubling for some of the justices:   you have the legislative branch giving the executive branch the power to modify orders made by the judicial branch.  You needn’t have aced 12th grade civics to see the problems with that,  and and after a dutiful exposition on the history and development of that Madisonian concept, the court strikes down the provisions of AWA allowing for reclassification of offenders.  That’s reclassification:   if a person wasn’t classified before, but is now subject to classification by the AWA, Bodyke doesn’t prevent that.

But this is where it gets interesting.  The opinion devotes two pages to a discussion of stare decisis.  That’s understandable in the context of the arguments raised in Bodyke:  in addition to the separation of powers issue, Bodyke contended that the AWA violated ex post facto and retroactivity principles, and violated double jeopardy as well.  Those arguments had been raised in challenges to previous changes in sex offender registration laws, and in each case the court had rejected them.  But the discussion of stare decisis is less understandable in the context of the result here.  Although one of the previous cases had raised a separation of powers argument, without going into detail, the argument in that case was not remotely close to the one Bodyke was making, and the court wouldn’t have had to overrule the earlier case in order to come up with the result it did in Bodyke.

Justice O’Donnell concurs in the separation of powers holding, but dissents from the majority’s discussion of stare decisis, finding it wholly unnecessay, and using a cute quote from then-judge, now US Supreme Court Justice John Roberts, that “the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more.”  (One could make a fair showing that in Roberts’ career on the High Court, he has observed this principle mainly in the breach, but that’s another story.)  But what’s more disturbing to O’Donnell than that the majority discusses stare decisis at all is what it says about it.

I’ve discussed before the problems with the Ohio Supreme Court’s decision in Westfield v. Galatis, where the court laid down a three-part test for determining whether it should overrule a prior case.  As I’ve pointed out, the test is so restrictive that since Galatis was handed down in 2003, the court hasn’t overruled a single case, going through all kinds of gyrations to avoid doing so.  In Bodyke, the majority goes completely off the reservation, deciding that stare decisis is “inapplicable” to constitutional claims, and “is not controlling in cases presenting a constitutional question.”  That’s too much for O’Donnell, who rightly notes that Galatis’ tri-partite test was derived in part from US Supreme Court decisions concerning the value of precedent in cases involving — you guessed it — constitutional questions.

And what’s involved here is more than just an abstract debate.  The heart of the argument over sex offender laws is whether they’re “punitive” or “remedial.”  When the court first confronted the issue in 1998 in State v. Cook, the court unanimously held that the provisions of Megan’s Law fell into the latter category.  The court reached the same result ten years later in State v. Ferguson, but in that case, three members of the court concluded that the amendments to Megan’s Law had made the registration and notification requirements sufficiently onerous that they tipped over into “punitive” territory.  And those provisions were much less Draconian than those contained in the AWA, discomfiting the justices even more, as was evident two weeks ago in the oral argument on another case involving that statute (discussed here). 

So what’s all this mean?  Let’s say the court is unshackled from the stare decisis effects of Cook and Ferguson, and thus is free to conclude that the AWA is indeed punitive.  If sex offender registration and notification requirements are deemed punitive, you get into some due process issues.  Remember, AWA classification is offense-base, as opposed to offender-based:  you commit a certain crime, you get a certain classification.  Couldn’t you argue that you’re entitled to a hearing, as you were under the old law, to determine whether your actual characteristics — your history, the facts of the offense, and so forth — showed you were really a threat to society?  And doesn’t the separation of powers issue appear in this context?  After all, punishment is the sole prerogative of the judicial branch.

So the immediate effect of Bodyke is that the 26,000 offenders who were reclassified under the AWA now have their previous classifications restored.  But the language of the opinion portends the possibility that it may be raised to attack any future classifications as well.

Of course, you might want to consult your friendly neighborhood crack addict before betting the ranch on that happening.