KEITH ARNOLD, Daily Reporter Staff Writer
Amendments to Ohio's sex offender registration and reporting law in 2003 do not violate U.S. and state constitutional prohibitions of ex post facto laws, the Supreme Court of Ohio ruled Wednesday.
As a result, sex offenders, such as the Cleveland man at the center of this case - Andrew Ferguson, convicted of a related crime before enactment of Senate Bill 5 - must register with local law enforcement and are subject community disclosure just as their counterparts convicted after the bill's enactment.
A 4-3 majority found that each of the changes imposed by SB 5 reflected the same intent to protect the public and prevent future sex crimes as the earlier version of the statute, R.C. Chapter 2950.
"After review of the General Assembly's findings and its clear reaffirmation of an intent to protect the public from sex offenders, we are not persuaded that eliminating the provision that permitted removal of the predator classification was driven by a punitive or retributive intent," Justice Maureen O'Connor wrote for the court majority.
"To the contrary, we believe that the legislature did so in an effort to better protect the public from the risk of recidivist offenders by maintaining the predator classification so that the public had notice of the offender's past conduct - conduct that arguably is indicative of future risk." she stated.
"Similarly, we believe that the General Assembly's findings also support the conclusion that the more burdensome registration requirements and the collection and dissemination of additional information about the offender as part of the statute's community notification provisions was not borne of a desire to punish.
"Rather, we determine that the legislative history supports a finding that it is a remedial, regulatory scheme designed to protect the public rather than to punish the offender - a result reached by many other courts," O'Conner wrote.
The court indicated by footnote in Wednesday's decision that the changes enacted by the 2003 amendments have themselves been superseded by passage and enactment this year of SB 10, the Adam Walsh Act.
Ferguson's lawyer, Cuyahoga County Assistant Public Defender Cullen Sweeney, said Wednesday the changes to the statute are on a continuum.
"Now, the question is whether the Adam Welsh Act has taken it further," he said, speaking of what he characterized as the punitive nature of the 2003 amendments.
He explained to justices during arguments in May that community notification has the potential for being punitive depending upon the measures a county sheriff takes to notify neighbors of a convicted sex offender. Sweeney suggested making the information available to residents online seemed more remedial than a sheriff's deputy physically visiting each home in a neighborhood pointing out the individual to his neighbors.
"Ferguson may be negatively impacted by the amended provisions, just as he was burdened by the former provisions," O'Connor continued. "But 'the sting of public censure does not revert a remedial statute into a punitive one.' ... Ohio retroactivity analysis does not prohibit all increased burdens, it prohibits only increased punishment.
"... Thus, notwithstanding ... the amended provisions of R.C. Chapter 2950, we do not conclude that the amended statute violates the retroactivity clause of the Ohio Constitution."
Justice Judith Ann Lanzinger, in a dissenting opinion joined by justices Paul Pfeifer and Evelyn Lundberg Stratton, noted that specific provisions maintaining a remedial nature of a 1996 version of the sex offender statute were either removed or substantially altered by SB 5.
"While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders," she quoted from her partial dissent in a 2007 decision, State v. Wilson.
"All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all.
"The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the (State v. Cook) court recognized. ... Therefore, I do not believe that we can continue to label these 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."
Sweeney noted the minority dissent "essentially agreed" with the argument he had made.
"Obviously, we're disappointed by the court's decision, and we're considering what to do with Mr. Ferguson's case," he added.
The Cuyahoga County Prosecutor's office did not respond to a phone inquiry seeking comment by press time.
Ferguson was convicted of rape in 1990 and sentenced to a prison term of 15 to 25 years. He remains incarcerated, according to a summary provided by the court. The Ohio General Assembly adopted legislation - House Bill 180, widely referred to as Megan's Law - in 1996. It required the classification of all future sexual offenders, and of all offenders currently serving prison terms for prior sexual offenses, into one of three categories, imposing varying post-release registration and community notification requirements.
The court's decision in Cook (1998) held that the registration and community notification requirements were not constitutionally barred as ex post facto provisions because their primary intent and effect was regulatory rather than punitive.
Effective 2003, SB 5, expanded the 1996 registration and community notification requirements, prohibiting any registered sexual offender from establishing a residence or occupying a home within 1,000 feet of a school, the summary continued.
Ferguson's classification hearing in Cuyahoga County Court of Common Pleas in 2006 characterized the man as a sexual predator and he was ordered to comply with the most restrictive requirements set forth in the post-2003 version of the statute.
He appealed the action on the grounds the trial court erred in requiring him to comply with the post-SB 5 version of the law because the amendments adopted in 2003 were unconstitutional ex post facto provisions that increased the punishment for his pre-2003 conviction.
The 8th District affirmed the classification. The Supreme Court agreed in 2007 to review the appellate ruling before it issued its decision February in Hyle v. Porter, in which justices determined there was "no clear declaration of retroactivity" in the state law stipulating residency requirements for sex offenders.
O'Connor was joined in the majority by Chief Justice Thomas Moyer and fellow justices Terrence O'Donnell and Robert Cupp.
The case is cited as State v. Ferguson, Slip Opinion No. 2008-Ohio-4824.