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Crime and punishment

So the other day I learned what a "porkjor" was.  No, it's not some Mideastern delicacy.  It's the awkward shorthand for the acronym PRQJOR, which stands for "public-registry-qualified juvenile-offender registrant."  That's distinguished from a plain JOR, "juvenile offender registrant."

Still with me?

"Porkjor" got quite a workout in the oral argument I watched the other day, in the Supreme Court's decision last week in In re C.P.  The days of when juvenile court was viewed solely as a means of rehabilitation, and juvenile delinquents as those in need of rehabilitation, are long gone.  That's factored into not only how we prosecute juvenile offenders, but how we classify them when they commit sex offenses.  A PRQJOR is a juvenile who's been branded a Tier III offender, which means that he has to register every ninety days for the rest of his life, and the community has to be notified about his status.

In C.P., the Supreme Court held that was a violation of the Cruel and Unusual Punishment Clause, not only of the US Constitution, but the Ohio Constitution as well.

 This is but more of the residue of the Adam Walsh Act.  Passed in Congress by 2006, it mandated that if states wished to receive certain Federal funds, they had to completely redo their sex offender classification schemes, and part of it included registration of juvenile offenders.  While the registration categories were mandatory for adults, they were discretionary for juveniles.  Except for PRQJOR's:  for them, the classification is mandatory.  Ohio was the first to embrace the AWA -- follow the money -- but it turned out that the joke was on us:  Congress never appropriated any money.  In fact, six years after the Act was passed, Ohio is only one of three states to be in full compliance with it.  The rest, having spent more than eighteen seconds deliberating about it, decided that it was too expensive to implement (Illinois concluded that it would have spent five times as much complying with the law as it would have gotten even if there had been Federal funds), or that the provisions, especially for juveniles, were too severe.

Of course, the Ohio legislature hadn't found those provisions too severe, but the Supreme Court, by a 5-2 vote, did.   In doing so, the court laid out an extensive analysis for how it will analyze future cases under the Cruel and Unusual Punishment Clause, and breathed some new life into the Ohio Constitution.

As I explained a few weeks back in my discussion of the US Supreme Court's pending decisions in Miller v. Alabama and Jackson v. Hobbs, most of the jurisprudence on the 8th Amendment deals with the death penalty.  In non-capital cases, the courts seemed unwilling to acknowledge that even the most extreme sentence could be so disproportionate as to violate the Clause -- a few years back, the Supreme Court decline cert in a case where an Arizona man had been given a 200-year sentence for child porn -- until a couple of years ago, in Graham v. Florida, where the Court held that life without parole for a juvenile in a non-homicide case is unconstitutional.  Miller and Hobbs present the same issue for juvenile homicide offenders.

Pfeifer's opinion for the majority in C.P. closely tracks the analysis of Graham.  The problem with using the 8th Amendment to analyze severity of sentences is drawing a line:  who's to say that 50 years for a certain crime and certain offender is too severe?  Graham avoids that problem by looking at the issue categorically:  the court is scrutinizing a certain category of offender -- juveniles, in this case.  The question is not whether lifetime registration is excessive, but whether lifetime registration for juveniles is excessive.

The analysis begins by looking at the "national consensus" on the issue, and this doesn't go well for the State.  So severe was the backlash by other states against the application of sexual offender classifications to juveniles, that the attorney general withdrew the notification requirement.  Under Ohio's law, notification is one of the key differences between PORQJR's and ordinary juvenile sex offenders:  it's not required for the latter.  (Another is that JOR status is subject to frequent re-review; a PORQJR has to wait 25 years until a court can reconsider his classification.)

The next step in the analysis is the court's independent review, and here the opinion draws heavily from Graham and Roper v. Simmons, the 2005 decision in which SCOTUS held that the death penalty couldn't be applied to juveniles.  The opinion extensively discusses the lesser moral culpability of juveniles, and the lesser penological justification for punishing a juvenile the same as an adult.

Several points.  First, the opinion makes clear, as was somewhat evident in oral argument, that the notification requirements were most troublesome for the court; it notes at one point that "publication of a juvenile's offense makes reintegration into society more difficult," and in another about the "publicized sex offender label."

Second, you don't get to the Cruel and Unusual Punishment Clause if you're not talking about punishment.  Keep in mind that before State v. Williams last year, every time the Ohio Supreme Court had considered sex offender statutes, it had concluded that they were remedial, not punitive.  Williams broke with that, and found that AWA had finally crossed the line.

Which brings us to the third point.  Every Federal court that has considered the AWA has gone the other way, concluding that the statute is remedial.  Possibly for that reason, Pfeifer brings Article I, Section 9 of the Ohio constitution, our counterpart to the Cruel and Unusual Punishment Clause, into play, and gives the Ohio Constitution far more status than it has received in any prior opinion:

The Ohio Constitution is a document of independent force.  In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.

On several prior occasions, the court has held that the Ohio Constitution in certain circumstances provides greater rights than the US Constitution, but it has backed off of that, at least in 4th Amendment cases, over the years.  Does C.P. mean the court will be more receptive to claims citing the Ohio constitution as a basis for throwing out a search or finding a confrontation violation?  Maybe not, but it's something to keep in mind.  If your boilerplate motions to suppress and assignments of error concerning constitutional violations at trial don't contain a reference to the Ohio constitution, they probably should.

Finally, C.P. provides an instructive lesson for attorneys handling cases in the Ohio Supreme Court, who are asked by the client, "We had oral argument last month.  When do you think the decision's going to come out?"  The oral argument I watched last week had taken place almost fourteen months earlier, on February 16, 2011.

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