State v. Williams: Punitive after all
Some people believe in Santa Claus. Some people believe in the Easter Bunny. Some people believe that sex offender registration and notification (SORN) laws, which impose requirements on what sex offenders have to do and rather severe sanctions on them if they don't do it, are merely "remedial."
I don't know whether five Ohio Supreme Court justices believe in Santa Clause or the Easter Bunny, but in State v. Williams last week, they made clear that they're not buying the "remedial" SORN laws line any more.
Williams had been charged in November of 2007 with having consexual sex with his 14-year-old girlfriend, five years his junior. He pled guilty shortly thereafter, and twice during Williams' plea colloquy the judge told him that his conviction wouldn't subject him to reporting requirements as a sex offender.
He wasn't sentenced until February 1, 2008, however, by which time the Adam Walsh Act had gone into effect. That law made unlawful sexual conduct with a minor a Tier II offense, requiring registration for 25 years. Williams argued that he should be sentenced under the law at the time the offense was committed, but the State argued that there was nothing to support that argument. And they were right. Punitive laws cannot be imposed retroactively, but "remedial" laws can. The SORN laws have been changed on numerous occasions, and every time the Ohio Supreme Court had previously considered the question of whether the new law could be applied retroactively, it concluded that the law was "remedial," in that the purpose was not to punish sex offenders, but to protect the public from them.
But the margin in support of that position had dwindled markedly. Back in 1998, in State v. Cook, the court reached that conclusion unanimously; ten years later, in State v. Ferguson, only a bare majority could be summoned to endorse it. When I discussed the oral argument in Williams, I noted that I didn't see any way the State could come up with four justices to support its view. The State in fact managed only half that number: McGee Brown, who'd replaced Moyer, and O'Connor, who'd written the majority opinion in Ferguson, joined the three dissenters from that case.
There are a number of interesting aspects of the opinion. First is that the court eschews analysis under the US Constitution's Ex Post Facto Clause and decides the case based solely on the Ohio constitution's prohibition of retroactive laws. This might have been a tactical move; as O'Donnell indicates in his dissent, joined by Cupp, every Federal circuit court which has considered the question of whether the national AWA violates the Ex Post Facto Clause has concluded that it does not; much easier to simply shift the battleground to the Ohio constitution than try to explain that away. It also precludes the possibility of any further review by the US Supreme Court.
This raises the question, though: does the Ohio constitution's prohibition on retroactive laws give more protection than the US Constitution? One of the problems is that the opinion concedes that there's no bright-line test for determining when a remedial law becomes punitive: "It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional." Given that, and the absence of any attempt to distinguish the two constitutional provisions, it's impossible to determine whether one does provide more protections than the other, but it's something to keep in mind. Most likely, though, whether something is remedial or punitive is going to be determined by the "eye of the beholder," rather than any rigorous legal analysis.
That brings up another point. I've mentioned before that while appellate cases are supposed to be decided strictly on the law, it always helps to have good facts on your side. Williams' claim that the law was punitive was substantially aided by the specter of somebody being able to go on the Internet 20 years from now and finding his name and picture, along with the notation that he'd been convicted of having sex with a minor. As several justices noted in oral argument, that appeared to be a Draconian sanction for a 19-year-old sleeping with a 14-year-old. What were the facts in State v. Ferguson, where the court held that Megan's law was remedial, not punitive? Ferguson had been convicted of three counts of rape and one of kidnapping, had multiple convictions for rape and robbery in the previous 30 years, and psychological assessments indicated he had a high risk of committing another sexual offense.
Williams arguably answers another question that's been perplexing the courts. Since Bodyke, an offender who committed his offense prior to AWA was entitled to have his Megan's law classification restored, and could be subject only to the registration and notification requirements of that law. But what if he violated those requirements? For example, let's take a defendant who had been convicted of a 5th degree felony that required registration, and he twice failed to verify his address; the second violation was a fourth degree felony under Megan's law. Under AWA, though, a second offense is a third degree felony, and requires mandatory imprisonment for at least three years. Could a Megan's law offender be subject to the more severe sanctions under AWA? The 8th District, for one, has consistently held that he can't.
Williams doesn't address that precise question, and it's certainly possible to read the decision narrowly, as only holding that someone who commits an offense before AWA took effect can't be classified under AWA, even if his conviction came after the effective date. The syllabus, though, plainly states that the AWA, "as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws." To me, that means not only that the classification can't be applied retroactively, but that the laws requiring registration, notification, verification, and so forth, and the penalties for violating those laws, can't be applied retroactively, either. A Megan's law defendant can only be prosecuted for violating the Megan's law requirements, and punished as provided in that law.
Finally, here's something else to chew on. The court has now said that AWA's provisions are punitive. You can't impose punishment without due process, specifically a hearing. AWA doesn't provide for that; classification is automatic, dependent solely upon the offense. An offender has no opportunity to claim that he should be exempt from the registration and notification requirements. Sure, Megan's Law imposed "automatic" classification in most respects; only for a sexual predator designation was a hearing required, and the court upheld that and rejected the due process argument in State v. Hayden in 2002. But that was because Megan's law was remedial. AWA is not.
I think Williams makes the AWA's entire classification scheme suspect. Defense attorneys should start raising that issue every time a client is charged with failure to notify or register or verify or any other offense under AWA, even if the defendant was convicted after AWA went into effect and "properly" classified under that law. File a motion to dismiss the charge on the basis that the defendant wasn't provided a hearing before being classified. If the classification is bad because he didn't have a hearing, then he can't be prosecuted for violating the requirements the classification imposed upon him.