Ohio's Cincinnati-based 1st. District Court of Appeals last Thursday ruled that the state's two-year old law, which strengthened registration requirements for sex offenders to report & keep work & residency information current, can be applied retroactively. [ Court's Decision ]
A Cincinnati Enquirer article this past weekend stated the case would likely be appealed to the state's high court as what's at issue is the continuing confrontation between the rights of convicted sex offenders and those of the public to be informed of the identity of sex offenders and where they live & work.
The article quoted the unanimous decision as stating that "By their voluntary acts (crimes), sex offenders have surrendered certain protections that arguably are afforded other citizens. Their convictions of felony offenses put them in a class that has already been deemed to have no expectation of finality in the consequences of the judgments against them."
Ohio's sex offender notification & registration statutes in pertinence here came into effect in 2003 and were amended by Ohio’s "Laura's Law" bill in 2005. In July 2008, lawmakers passed Senate Bills 10 and 97, bringing Ohio statutes into compliance with federal guidelines mandated by the 2006 Adam Walsh Act.
In last Thursday's case, Jerome Sewell had argued that the retroactive application of Senate Bill 10's tier-classification & registration requirements violated his rights under the Ohio Constitution. For that to have been the case, the First District, following an established binary test from 1988, said that if legislation was intended to be applied retroactively, it had to be "determined whether the statute affected a substantive right or was remedial, and that only if affected a substantive right would it be unconstitutional." Citing the Ohio Supreme Court’s decision in State v. Cook (1998), it then proceeded to explain that "a statute is 'substantive' if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right."
"The Cook court also noted that except with regard to constitutional protections against ex post facto laws… felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation."
Where Ohio's Supreme Court in Cook examined the 1997 version of Ohio's sex offender notification statutes, State v. Ferguson, last year, examined those from 2003 with similar results. In State v. Williams in 2000, it held that those statutes were neither criminal in their nature, nor inflicting of punishment, and State v. Wilson, in 2007, it reaffirmed that "sex-offender classification proceedings under Revised Code Chapter 2950 were civil in nature."
ORC §2950.03 "Notice of duty to register and periodically verify information" [Effective Date: 07-31-2003; 04-29-2005; 2007 SB10 01-01-2008]
ORC §2950.06 "Periodic verification of current residence address" [Effective Date: 07-31-2003; 2007 SB10 01-01-2008]
ORC §2950.07 "Commencement date for duty to register" [Effective Date: 07-31-2003; 2007 SB10 01-01-2008]