Ohio’s Adam Walsh Act

Ohio’s Adam Walsh Act Pennsylvania Juvenile Defender Statewide Training April 18, 2008

“If you can’t be a good example, then you’ll just have to serve as a horrible warning.”--Catherine Aird

Ohio before AWA • Adult sex offender registry: SORN (sex offender registration & notification) • Juvenile sex offender registry: JSORN (juvenile sex offender registration & notification): not a public registry • Categorized offenders as sexually oriented offender, habitual sexual offender, or sexual predator • Classification based on likelihood to reoffend • Separate classification hearing; state had burden to prove likelihood to reoffend by clear & convincing evidence

Ohio Senate Bill 10 • Introduced in Feb. 2007, signed into law June 30, 2007, went into full effect Jan. 1, 2008 • Pushed by Ohio Attorney General • Implements offense-based, three-tier classification system • Applies retroactively to anyone on SORN or JSORN and to anyone incarcerated for a qualifying offense

Lobbying • AWA and SB 10 are overwhelming • We focused our testimony on two broad objections: Retroactivity Juveniles

Retroactivity • Problem: Ohio Supreme Court ok’d retroactive application of original SORN law: sex offender classification is remedial, not punitive • State AG and legislators relied exclusively on that case to dispute our constitutional claims • Ohio Criminal Sentencing Commission voted unanimously to recommend against retroactive application (but didn’t testify) • Result: SB 10 is retroactive, but not “super retroactive”

Keep in mind • The federal AWA has an “out” clause: a state can still be in substantial compliance if the state’s highest court rules that part of the law violates state constitution • The federal AWA is not retroactive; there’s only a one-sentence delegation of authority to the U.S. AG

Juveniles • We saw juveniles as our best chance of amending the bill • Law and science on our side • Inherent understanding that kids are different • Easier to rally allies

What we argued… • History of juvenile court system • Amenability to treatment • Roper v. Simmons • Brain science • Allstate ad • Low recidivism rates • Limited due process protections • High waiver of counsel rate • Equal protection • Public safety: dilute effectiveness of registry, pedophiles using registry to find kids

…and argued • Financial cost: no federal bonus $, cost of implementation & increased incarceration • Non-financial costs: families not willing to report, cases pled down to assaults • Law enforcement and victims groups oppose over-inclusive public registry • U.S. AG guidelines: foreign & Indian tribal courts • What is “substantial” implementation?

Allies • Ohio Association of Child Caring Agencies (a member of the National Organization of State Associations for Children, http://www.nosac.org, 30 states & D.C. have affiliates) • Parents and foster parents • Treatment providers • Psychologists and developmental experts • Governor’s office • Ohio Department of Youth Services • Juvenile judges & Ohio Judicial Conference • Ohio State University Law School’s Justice for Children Project

Really bad legislation • As introduced, SB 10 included all kids age 14+ adjudicated of certain Tier III offenses on internet registry • Would have included hundreds of kids: 95% of juvenile sex offenders in DYS and 90% of juvenile sex offenders in private treatment programs

Less-bad legislation • Ultimately, SB 10 was amended to greatly limit the kids who will appear on the internet registry • Only kids transferred to adult court or designated “serious youthful offenders” • Includes only 2–3% of juvenile sex offenders in DYS

Ohio kids under AWA • Tier I: register for 10 years, in-person verification annually • Tier II: register for 20 years, verification every 180 days • Tier III: register for life, verification every 90 days, possible community notification • PRQJOR: public registry-qualified juvenile offender registrant, Tier III + included on internet

Judicial discretion • Juvenile courts have discretion to classify 14- and 15-year-old first-time offenders • Mandatory review hearing upon completion of disposition • Petition for reclassification or declassification • Motion to terminate PRQJOR child’s duty to register

Litigation, Take One • In Oct. 2007, direct action filed in Ohio Supreme Court • Challenge to the retroactive application of SB 10: violates separation of powers, ex post facto, due process, double jeopardy, contracts clause • Case ultimately dismissed (not on the merits)

Implementation of SB 10 • Nov. 2007, Ohio AG sent reclassification letters to 35,000 people • Must file petition challenging reclassification within 60 days of receiving notice • State and local PD offices, private attorneys overwhelmed with phone calls • Very few kids are filing challenge petitions

Litigation, Take Two • Thousands of challenge petitions filed in county common pleas and juvenile courts across the state • Stark County (Canton) judges are first to hold mass hearing, issue county-wide stay • At least 12 other counties have since issued similar injunctions

A mess created by politicians • "It's a mess created by politicians, and it's going to be a mess for the courts to sort out." Franklin County Common Pleas Judge David Cain • Every county, every court is handling the new law differently

Depending on where you live • Petitions filed as civil or criminal • Civil filing fee may be assessed (ranging from $10 - $300) • Counsel may or may not be appointed • Sheriff may or may not send out community notification • Judge may or may not consider constitutional challenges

Litigation, Take Three • Class action lawsuit filed in U.S. District Court, Northern District of Ohio, challenging procedural due process issues • Federal Order filed Feb. 6, extending 60-day period to challenge reclassification, staying community notification for those affected by SB 10 retroactively

Litigation, Take Four • Class action lawsuit filed in Hamilton County (Cincinnati) • Raises constitutional claims to retroactive application of SB 10 • County prosecutor willing to stipulate to class certification (adults and juveniles) • AG opposed class certification • Judge denied class cert • Similar class action pending in Licking County (Newark)

Will this be won in the courts? • State v. Wilson, Supreme Court of Ohio: “I dissent from the majority’s labeling of sex-offender-classification proceedings as civil in nature. *** These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.” Justices Lanzinger and O’Connor and Judge Donovan sitting by assignment, concurring in part and dissenting in part 2007-Ohio-2202, decided May 23, 2007

State v. Williams • Supreme Court of Ohio: “While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that additional obligations are now imposed on those classified as sex offenders.” Justice Lanzinger, citing dissent in State v. Wilson, on behalf of unanimous Court 2007-Ohio-3268, decided July 11, 2007

Mikaloff v. WalshU.S. District Court, Northern District of Ohio “The Court concludes that the residency restriction violates the Constitution’s Ex Post Facto Clause. “Subjecting a sex offender to constant ouster from his or her home seems a significant deprivation of liberty and property interests. It sentences them to a life of transience, forcing them to become nomads. While such a punishment may be appropriate, it cannot be applied retroactively through ex post facto legislation.

Mikaloff v. Walsh, cont. “The residency restriction applies regardless of the type of offense committed, the offender’s classification level, and his or her risk of re-offense. A feeble, aging paraplegic must leave his home just as a younger one. This lack of any case-by-case determination demonstrates that the restriction is “vengeance for its own sake.” Judge James S. Gwin, CASE NO. 5:06-CV-96, filed Sept. 4, 2007

You can’t win the public relations war on this issue, right?

We ♥ local control If state legislators make decisions such as these, why do we have judges? How does a piece of legislation voted on in Columbus best serve the interests of justice and the community in Stark County? Canton Repository editorial, Dec. 20, 2007

More burden, less safety A new, tougher Ohio sexual offenders registration law … is bound to do far more harm than good, and actually could be a step backward in protecting the public. Re-classifying them upward also requires sheriffs to issue more notifications about offenders' whereabouts, adding administrative burdens with little payoff in public safety. Perhaps the system's greatest failing, however, is how it lumps all offenders together, in public perception at least, as evil people who should be shunned and cannot be "cured.“ Cincinnati Enquirer editorial, Jan. 3, 2008

Taxpayer $$ Ohio Attorney General Marc Dann campaigned on the promise that he would implement the act. And its implementation put the state in line to receive an increase of up to 10 percent in federal grants used to fight crime. But opponents say the act will cost taxpayers far more to put into practice and defend in court. It is an assertion Dann's office did not dispute. continued

Burden on law enforcement • It has put a strain on sheriff's offices, who could see a 60 percent increase in their workload. • In Cuyahoga County [Cleveland], the sheriff's Sex Offender Registration Unit registers about 400 sexual predators every 90 days. Now, they face the prospect of having to register nearly 1,400 people at least four times a year. • "That's some astronomical number," Sheriff's Sgt. David Synkowski said. "It's a disaster for us … I think many people didn't think this all the way through." Cleveland Plain Dealer, Jan. 21, 2008

Law enforcement sympathetic Deputy Tom Scheiderer, who handles sex offender registration, said he agrees that many defendants who committed crimes several years ago should be released from their reporting requirements. “Some have really worked hard; they haven’t been in any more difficulties and they’ve done what they are supposed to do. Those are the people that are really suffering because it is hard to get a job and get a place to live after they are labeled a sex offender.” Bellefontaine Examiner, Jan. 18, 2008

False sense of security These crimes are horrible. But it must be asked: At what point do these laws become exaggerations? When do they do less to punish the guilty and protect the innocent and instead become a false sense of security and examples of exasperation? Are they helpful to us or simply serve as a bullet item on a politician's campaign mailing, enabling the claim to "be doing something" about crime. Our American sense of justice must balance crime and punishment. If not, it becomes neither American, nor justice. Newark Advocate editorial, Jan. 14, 2008

Unintended consequences Problems with the new rules are growing almost daily in Ohio, involving everything from constitutional issues to administrative costs to the future prospects of teenage offenders. The day the new rules took effect, the law of unintended consequences also kicked in. The new rules are the product of good intentions but also of federal pressure to whip states into line and of political pressure to look tough on crime. The result — likely to be borne out in lawsuits for who knows how long — was predictable. Canton Repository editorial, Jan. 23, 2008

Illusion of safety Ohio has a new law that should never have been passed. It was designed by politicians and sold based on the price tag. No one factored in the cost to apply the new law, enforce it and defend it in court challenges. Convicted sex offenders have served their time. What we have created is an illusion of safety. Cleveland Plain Dealer, Jan. 25, 2008

Standing behind the law “No sheriffs offices returned calls for this story. Neither did the bill's sponsor, state senator Steve Austria. He referred questions to the state Attorney General, who did not return phone calls.” WOSU News, Jan. 24, 2008

Harder to convict? [Sexual] offenders don't deserve sympathy … but they do deserve laws that are tough and effective, but fair. Yet the Adam Walsh Child Protection and Safety Act, a mandate passed by Congress in 2006, could be troubled on both fronts. We are troubled by a law that uses draconian measures so liberally and might make it harder to convict some offenders. Those shortcomings should give parents and prosecutors pause, as they have constitutional scholars. Cleveland Plain Dealer editorial, Jan. 25, 2008

Higher cost, less effective The American Civil Liberties Union and other organizations fighting the measure argue persuasively that the costs of enforcement, including of reclassified cases, far outweigh the expected federal ''bonus grant'' of some $1 million. In addition, the new system will make registration and notification less effective. Some sex offenders, faced with more onerous requirements, will fail to report and drop out of the system. The better course lies with laws that focus on prevention and offenders likely to strike again. Most children who are victims of sexual abuse are harmed by family members, a situation unaffected by even the most Draconian labeling schemes. Akron Beacon Journal editorial, Jan. 27, 2008

What you can do now • Use the impending implementation of AWA to plea bargain down to non-sex offenses • Ask court to include exemption from registration on journal entries • Make a motion for jury trial in serious sex offense cases • Request dismissal of delinquency finding for societal / best-interest reasons • Encourage / assist former clients in getting old records sealed / expunged

Knowledge is power • Begin to educate judiciary via dispositional memos • Inform your clients and their families about the possible future impact of AWA • Educate experts, treatment providers, social workers about changes in the law • Reach out to reporters you know

Start lobbying • Collect case examples that highlight the flaws in AWA: intra-familial (would family report offense with AWA in place?), age of consent, sex offense vs. typical adolescent behavior • Encourage clients, families, experts, judges to reach out to state legislators • Contact legislators about other pending legislation

For more information http://www.opd.ohio.gov/ The Ohio Public Defender website includes: • Testimony offered at Ohio Statehouse • Comments submitted to U.S. AG’s office • Links to related research and cases • Briefs & other information on challenges to SB 10 • Sample motions • FAQs • Court orders Amy Borror, Public Information Officer amy.borror@opd.ohio.gov 614-644-1587

Ohio’s Adam Walsh Act