Legislators can't punish criminals — they can create laws establishing sentencing guidelines, but the judicial branch is the only body that can impose a criminal sentence. The Ohio Legislature is usurping that power with the implementation of Senate Bill 10 (SB 10) by requiring the Ohio Attorney General to re-classify sex offenders to meet the criteria of a new system and change the terms of their conviction. So says the Ohio Justice and Policy Center (OJPC) in a complaint filed Monday before the Ohio Supreme Court.
In addition to the allegation that the law violates the separation of powers in the Buckeye State's constitution, OJPC notes four other reasons former sex offenders Tamara Welton and Jane Doe should not be reclassified to fit the new three-tier system that was signed into law June 30.
By meeting early compliance with the federal Adam Walsh Child Protection and Safety Act, the state legislature secured a 10 percent bonus for changing the current risk-based Sex Offender Registry Notification (SORN) system with the new offense-based classification system that metes out punishment based on the name of a crime, regardless of victim or circumstances.
Neither system has ever been proven to accomplish the stated goal or protecting children from sex crimes, but let’s not quibble about that right now.
Never mind that Ohio gets 10 percent of nothing because Congress hasn’t allocated any funding for the early compliance bonuses; the law is facing one of what will likely be thousands of challenges. The first is focused on people sentenced under the old law.
Retroactivity is the second reason OJPC gives for asking the Ohio Supreme Court to prevent the implementation of the reclassification of thousands of former sex offenders. Both women named in the suit were classified in the lowest category of the SORN system, “sexually oriented offender.”
“When classified under SORN, each (plaintiff) has the right to expect, based upon the court’s classification order, that his or her registration period would be limited to 10 years and would not include community notification,” the complaint says. “SB 10 retroactively impairs vested rights and imposes new obligations and additional substantial burden on (plaintiffs) by requiring each to register for life and be subject to community notifications.”
These women were tried, convicted, sentenced and are in the process of completing their 10-year registration requirements based on the decision of the court. The effect of this law is that the state legislature is saying, “Nope, that’s not enough. You now have to be put into this new category and will have to complete this punishment: lifetime registration and re-verifying your home address every 90 days. Also, all of your neighbors, day care centers, volunteer organizations and a bunch of pother people will get a postcard with you sex offender status mailed to them.”
To make it even worse, these women — who had sex with adult males — will now be classified as “the worst of the worst” because the title of their crime (sexual battery) falls into the same tier as a “murder with sexual motivation” and “kidnapping of a minor to engage in sexual activity.”
State Sen. Eric Kearney (D-Avondale), who sat on the committee that drafted the bill in the senate, says that he voted for the law because he believes it will protect children.
“There were a couple of things that appealed to me. One is concern about the issue of sex offenses against children,” Kearney says. “Then, two, some way of stemming the flow of repeat offenses, halting that. We heard testimony about people who are found guilty of this crime and their tendency to be repeat offenders, so I was concerned about that particular issue.”
Kearney didn’t recall hearing any testimony that sex offenders have the lowest recidivism rate of all crimes when the offenders participate in qualified treatment programs, and he didn’t have any scientific studies to cite showing that registries deter former offenders from committing a similar crime.
“From my recollection from my notes, we were told that, by being able to track the home environment of the location where someone lives, that the police departments would be better able to track these individuals if a crime occurred in the area and would be able to provide some form of protection children,” Kearney says.
He goes on to describe the registry as a database of information about the criminals and criminal activity that serves as a “tool in police work.” The theory is that registration will help police identify areas where sex offenses frequently occur and potentially serve as a warning to tell people to stay away from those areas. If an offense occurs, the police can identify the offenders living in the area and talk to them about the crime. Kearney didn’t have any research to support this perspective.
When asked how these actions can prevent sexual offenses against children when an estimated 85 percent of all victims of sex crimes know their attackers, Kearney is shocked.
“That’s the first time I’m hearing that statistic.”
To his credit, Kearney says he will request and read the transcripts from the more extensive testimony in the House of Representatives during which the reality of sex abuse against children was laid out in a complete manner by a variety of people. Unfortunately, this effort is coming too late. The bill is already law and faces more challenges in the future.
A peaceful protest is already scheduled for Dec. 1 in front of the Ohio Statehouse, 77 South High St, Columbus, Ohio, at 11 a.m. to underscore the impact of S.B.10. The rally is being organized by Soclear Media Productions, in conjunction with the Sex Offender Support and Education Network.
“Sex offenders who have not yet received notification from Attorney General Mark Dann's office indicating their ‘tier’ level will soon be notified that their present low-level classifications could be raised without cause,” the groups state in an e-mail about the protest. “Under this bill, one-time, low-level offenders could suddenly be classified as ‘predators.’ This will have a serious negative impact on low-tier sex offenders, who have served their time and are no longer considered a threat to society. Some offenders, including those with less than a year on their registration requirements, will have those requirements extended by this bill. For others, lifetime registration will be required.”
Hey, maybe the 10 percent bonus the state was so hot to get could help pay for all of the lawsuits that are inevitable. But then, 10 percent of zero isn’t going to pay many attorney fees or court costs.
— Margo Pierce