Ohio’s law governing the registration and classification of sex offenders and the community-notification requirements are contained in Ohio Revised Code Chapter 2950. This chapter of Ohio law has been “on the books” since 1963. In fact, for 30 years, it was seldom used. Also, the legislature never did a single amendment to R.C. 2950 in three decades.
In 1994 a convicted sex offender in New Jersey abducted, raped and killed a neighbor’s young child, Megan Kanka. New Jersey enacted a law requiring registration of sex offenders and notification to the community of the offender’s presence. This became known as “Megan’s Law”. The law was challenged on various constitutional grounds. In 1995, the New Jersey Supreme Court upheld the constitutionality of “Megan’s Law”.
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Shortly after the New Jersey’s Supreme Court found sex offender registration and notification to be constitutional, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“the Jacob Wetterling Act”). This Act required states to implement a registry of sex offenders and those who commit crimes against children. Two years later, the Act was amended to require community-notification provisions. The Jacob Wetterling Act became known nationally as “Megan’s Law” since it mirrored New Jersey’s “Megan’s Law”.
The federal Megan’s Law requires states to adopt registration and community-notification provisions or face the loss of federal money. Oddly enough, the funds that were threatened to be taken from states that didn’t adopt a Megan’s Law were earmarked for crime fighting.
In 1996, Ohio signed on to the federal Megan’s Law and amended O.R.C. 2950 and created Ohio’s first comprehensive registration, classification, and notification system for convicted sex offenders. Just one year later, the defense bar argued an ex post facto claim before the Ohio Supreme Court in
State v. Cook . An
ex post facto law is Latin for “from after the action”. Lawyers typically define it is a “retroactive law”. Retroactive laws are customarily deemed unconstitutional because true
ex post facto laws retroactively change the legal consequences of acts committed prior to the enactment of a law.
Ex post facto laws my bring a crime into a more severe category than it was at the time it was committed; or, it may increase the punishment prescribed for a crime than would have been set at the time of the illegal act. The Ohio Supreme Court upheld Megan’s Law and did not find any
ex post facto violation.
The defense bar and ACLU continued to challenge Megan’s Law across the country. In Ohio, similar challenges were made on the following legal theories: Megan’s Law impermissibly intruded on the convicted sex offender’s right to maintain privacy, to acquire property, to pursue an occupation, and to maintain a favorable reputation. Also, the Double Jeopardy argument failed as did an equal protection challenge and a separation of powers challenge.
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On July 31, 2003, Senate Bill 5 (“S.B. 5”) changed the simple registration and notification procedures into a more byzantine process. Labels became permanent, registration requirements became more demanding. Community-notification and residency-restriction provisions were made more extensive. Ohio sheriffs were given new powers to obtain landlord verification that the sex offender actually resides at the registered address. Nonetheless, the Ohio Supreme Court affirmed the constitutionality of the S.B. 5 amendments in State v. Ferguson.
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In 2006, Congress passed the now famous Adam Walsh Child Protection and Safety Act (“Adam Walsh Act”). New national standards were implemented to divide sex offenders into three categories or “tiers” based solely on the crime committed. Again, this federal mandate was imposed on all the states or risk losing federal crime fighting dollars. Ohio enacted the “Adam Walsh Act” and repealed “Megan’s Law” in 2007.
The Adam Walsh Act’s new tier system was also retroactive. The former categories of sex offenders no longer existed. All sex offenders were re-classified based upon the crime committed without regard to a fact-finding hearing before a judge as to the likelihood of recidivism (re-offending). Under the Adam Walsh Act, there is no individualized assessment, no mitigating factors are presented, no expert testimony is presented, and the offender’s social, family, and criminal history are irrelevant.
On June 3, 2010, the Ohio Supreme Court dealt a blow to the Adam Walsh Act by ruling that it encroaches “on the province of the judiciary”. State v. Bodyke. The reclassification provisions of the Adam Walsh Act violate the separation of powers doctrine because “it vests the executive branch with the authority to review judicial decisions” and it “interferes with the judicial power by requiring the reopening of final judgments”.
Specifically, R.C. 2950.031 and 2950.032 were severed from the Adam Walsh Act and deemed unconstitutional. The rest of the Adam Walsh Act remains undisturbed. Offenders who were classified under Megan’s Law then re-classified under the Adam Walsh Act will revert to their Megan’s Law classification.