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Parsing Bodyke

Everybody who follows SORN laws -- sexual offender registration and notification laws -- knows that Ohio's adoption of the Adam Walsh Act in 2008 is a bad joke with a seemingly endless supply of punch lines.  The legislature passed the law -- Ohio was the first state to adopt it -- eager to obtain the gusher of federal funds that was promised to those states which did so, only to learn that Congress never got around to appropriating any money for that purpose.  Then the Ohio Supreme Court determined, in State v. Bodyke, that the basic scheme of the law, which permitted the attorney general to reclassify sexual offenders who'd previously been classified by judges under Megan's law, violated the doctrine of separation of powers.  That was followed by the ruling in State v. Williams, that the provisions of the AWA were sufficiently punitive that the court could no longer pretend, as it had with Megan's law, that the law was remedial; thus, it couldn't be applied retroactively.  All that leaves the state with two SORN schemes, one (AWA) which supposedly applies to offenders who committed their crimes after its effective date of January 1, 2008, and one (Megan's law) which supposedly applies to offenders who committed their crimes before that.

But what happens to offenders who are classified under Megan's Law, then subsequently violate the registration or verification requirements of AWA?  Can you be punished for that?

The Ohio Supreme Court has three cases on its docket to tackle that question, and took its shot at the first one, State v. Brunning, in oral argument on Wednesday.

Brunning went to prison for a rape in 1983, was classified as a sexual offender when Megan's law went into effect in 1997, and when he got out of prison in 2008, was to start his 10-year registration period.  He registered, listing his Cleveland address as his primary address and one in Parma Heights as his secondary.  Turns out he was actually doing it the other way around.  This was after AWA had gone into effect, but before Bodyke came down, so the State charged him with failure to verify his current address and failure to notify the sheriff of a change of address, and threw in a tampering with evidence charge to boot.  (The tampering charge stemmed from Brunning's signing the paper giving the wrong order of addresses.  The prosecutors office here could teach a masters level course in overindicting.)  Brunning agreed to a plead to all three offenses, with everybody acknowledging that the offenses would merge.  Except the judge forgot about that part by the time sentencing came around, and gave Brunning maximum consecutive sentences of 21 years.

Then Bodyke comes down, and on appeal the 8th reversed the convictions of the registration offenses, saying that you couldn't charge a Megan's Law offender with a violation of the Adam Walsh Act.  That's certainly true, to an extent.  Under Megan's Law, Brunning's reporting requirement would have been annual.  By being reclassified as a Tier III offender, he now had a quarterly reporting requirement.  Obviously, if he was being charged with something arising out of one of the quarterly reporting periods, he couldn't be prosecuted for that:  that would clearly have resulted from his reclassification, and if the reclassification is invalid, so is the reporting requirement.  But in Brunning's case, he had violated the annual requirement, the same one he would have had if he'd never been reclassified.  (In fact, the wording for the verification and notification requirements is identically-worded under AWA to what it was under Megan's Law.)  You could make the argument that he shouldn't be subject to the AWA penalties -- the offenses would have been 3rd degree felonies under Megan's Law, instead of 2nd degree felonies under AWA -- but he certainly violated the law. 

Maybe.  This is where things get funky.  Normally, when the legislature passes a new law, that simply amends the old one.  For example, HB 86 substantially changed the law on judicial release.  The legislature didn't repeal the old law on judicial release and insert a new one, it just amended it.

But when the legislature passed the Adam Walsh Act, it expressly repealed Megan's Law.  It probably did this as a way of signaling to the Feds, "Hey, we repealed the old law and put in the AWA.  Send money!"  But the effect was as simple as it was unintended:  for a Megan's Law offender, there was no longer any law requiring him to notify or verify.  The AWA requirements couldn't be applied, per Bodyke, and the repeal eliminated any requirements under Megan's Law.

At least, that's what the defense argued on Wednesday:  that for the period of time from the active date of AWA (and the repeal of Megan's Law) in January of 2008 until Bodyke was decided in June of 2010, there was no reporting requirement for a Megan's Law offender.  Bodyke restored the reporting requirements, but they could be applied only prospectively.

That's what the defense was selling, but it didn't look like any of the justices were buying.  Lundberg Stratton openly ridiculed the idea that Brunning could be convicted of tampering with evidence in a case like this, and O'Connor, who apparently thought that Brunning had been given concurrent time, was frankly incredulous to learn that he'd been sentenced to 21 years for this, but that was as good as it got.  Probably the best hope for the defense would be to have the appeal dismissed as improvidently allowed -- Pfeifer was beating the drum for that, quizzing the lawyers on whether the weirdness factors in the case prevented the court from addressing the real issue -- but I don't see him garnering three additional votes for that.  And I certainly don't see four votes for holding that any Megan's law offender who violated their reporting requirements gets a free pass if it happened in the 2½-year window between AWA's effective date and Bodyke. 

Here's a thought, though:  the defense was more right than they realized.  Their basic argument, I think, is correct.  Once a law is repealed, it's repealed.  Obviously, the legislature repealed Megan's Law because it figured it didn't need it anymore:  all Megan's Law offenders were going to become AWA offenders, and thus be subject to the AWA requirements.  It didn't work out that way.  But when the reclassification scheme went, so did the reporting requirements.  I'm sorry, but if you repealed the law that says a Megan's Law offender has to notify the sheriff of a change of address, you can't prosecute him for not notifying the sheriff of a change of address.  Especially if you claim that his duty to notify the sheriff arises under the AWA, but the Supreme Court has told you that you can't apply the AWA to him.  To be sure, under RC 1.58, a person can be prosecuted for violation of a law that was repealed, but only if the violation occurred before the repeal.  Brunning's violation occurred after the repeal.

But if all that's true, we're not talking about a 2½-year window.  We're talking about a window which is still open, and which the Supreme Court has no power to close.  The legislature repealed Megan's Law.  The Supreme Court didn't "revive" it in Bodyke, because it couldn't:  only the legislature can pass laws.  To restore the Megan's Law reporting requirements, the legislature has to re-enact those portions of Megan's Law.

At one point during the argument, Brunning's lawyer said that the window was created by the legislature, and it wasn't the court's job to "clean up the mess."  "We do that all the time," O'Connor replied tartly.  And they will, again.

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