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Sex offender registration and the 8th Amendment

The wheels of justice turn slowly, but grind exceedingly fine.  And sometimes they grind people up.  We're going to find out whether Travis Blankenship is one of those people.

Blankenship, 21 at the time, had sex with a 15-year-old girl.  He wound up pleading guilty to an information charging him with one count of unlawful sexual conduct with a minor, a fourth degree felony.  That earned him ten days in jail.  It also earned him a Tier II sex offender status, which requires him to register for the next quarter century.  Last week, the Supreme Court held oral argument in his case to wrestle with the question of whether that registration requirement constituted cruel and unusual punishment.

That's a tall mountain to climb, and the only reason you even make it to the base camp is the Supreme Court's 2011 decision in State v. Williams (discussed here).  Although the court had held that the prior iterations of Ohio's sex offender laws, going back to 1967, were civil and "remedial," it broke with that in Williams and declared that the Adam Walsh Act, which took effect in 2008, was punitive.  You don't get to cruel and unusual punishment without punishment.  So there's that.

But beyond that, there are problems.  First, there's the complete lack of any precedent for Blankenship's argument; no court of any state has bought into it.  That's mitigated somewhat by the fact that Ohio is the only state which has held that the AWA is punitive; the Federal courts, and the courts of the other 17 states which have considered the issue, have stuck with the contention that it's "remedial."

The second problem is that 8th Amendment law is horrible.  SCOTUS has upheld a life sentence for possession of drugs, and California's three-strikes law, which in that case imposed a 25-to-life sentence on a defendant for stealing a set of golf clubs, and a few years back it turned down cert for an Arizona man who'd been sentenced to 200 years in prison for possession of child porn.  There are a number of cases which hold that 8th Amendment violations are limited to those punishments which "would be considered shocking to any reasonable person."

There's one possibility here.  Instead of the 8th Amendment, the court could rely on Article I, Section 9 of the Ohio Constitution.  That's what it did in In re C.P., striking down a provision of the AWA which imposed a lifetime registration requirement on a Tier III juvenile sex offender.  As I explained at the time, though, that analysis flowed from the US Supreme Court's decisions on life without parole sentences for juvenile non-homicide offenders was impermissible.  That analysis was based on a categorical approach; instead of looking at the punishment, the court looks at the category of the person being punished.  The question in C.P. wasn't whether lifetime registration is excessive, but whether lifetime registration for juveniles is excessive.  That's not really helpful; you don't have that categorical line, or any line, really, in Blankenship.

The third problem is, even conceding that registration for Blankenship is cruel and unusual punishment, what do you do about it?  To be sure, Blankenship had some arguments in his favor:  he had no criminal history whatsoever -- he was a few months short of an associates degree -- and a psychologist found him to be at a low risk for re-offending.  But at what point does requiring registration become cruel and unusual?  The point was brought home by Justice O'Donnell's question:  "How do we instruct trial courts on how to apply this?" 

There's no clear answer.  Obviously, the trial court would have to hold a hearing on the issue of whether to impose the registration.  Defense counsel argued that the hearing would be necessary only where the defendant requested one, but that begged the question:  when wouldn't he request a hearing?  Hearings were required under Megan's Law, but only when the State requested one to determine whether the defendant was a sexual predator; the other classifications, sexual offender and habitual sexual offender, were imposed by operation of law.  Ideas were tossed around about a threshold for requiring a hearing, like a favorable psychologist's report.  But that runs into obvious equal protection problems:  you can't condition a defendant's right to object to registration on his having the money to hire a psychologist, and having a psychologist conduct an evaluation of every defendant convicted of a sex crime creates some major logistical problems.

So things look pretty grim for Blankenship, but you could tell the justices were struggling with the underlying validity of his argument.  O'Connor pointed out that not only would Blankenship be barred from living within 1,000 feet of a school or park, his sex offender status would pose substantial bars for employment.  And Pfeifer pointed out in even more personal terms what Blankenship's life would be like.  Parents of other children at his kids' school would find out he's a sex offender by checking the Internet, and then he'd have to explain his status to his children.  For good or bad, 21-year-olds sleeping with 15-year-olds is not exactly a novel occurrence in today's society.  If the girl had been year older, not only would Blankenship have avoided the registration requirement, he wouldn't have committed a crime at all.

O'Connor suggested this might be a task better left to the legislature, and she's probably right.  The likelihood of that happening, though, is not a subject for debate; whatever the state legislature's priorities -- and don't even get me started on that -- easing the penalties on sex offenders isn't one of them.

And so Travis Blankenship will likely spend the next 25 years registering as a sex offender twice a month.  That's not something that should happen, but the wheels of justice don't inevitably bring justice to the right destination.

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