Rule of Law in Ohio

It was June last year when the Ohio Supreme Court put out its decision in State v. Bodyke holding that reclassification under the Adam Walsh Act was unconstitutional.  Today, they gave us the rest of the story, and it's good news again.

Probably some background is in order.

For years, convicted sex offenders in Ohio (and across the nation, for that matter, but that's a separate issue) were classified under some version of what was called Megan's Law as sexually oriented offender or habitual sexual offenders or sexual predators.  They were required to register with county sheriffs and in some cases to be subject to community notification of where they might be found.  The particular classification, fixed by judicial determination of the likelihood that the person would reoffend, controlled the onorousness and duration of registration and notification.

Then Ohio adopted its version of the Adam Walsh Act.  It changed the rules.

There were still three classifications with increasing degrees of onerousness, but they had no relationship to the likelihood of recidivism. More to the point here, Adam Walsh Act classifications were made retroactive.  Not only were they imposed on people who were convicted of offenses before the Act became law, they were also imposed on people who had been classified under Megan's Law.  The result:  some 26,000 people in Ohio who were already registered sex offenders as they had been classified under Megan's Law were suddenly reclassified under the Adam Walsh Act.  For the vast majority the reclassification made things worse.  Much worse.

In Bodyke, the Ohio Supremes said that the reclassification were unconstitutional.  Which should have settled things.

But the opinion seemed to leave some wiggle room about a subset of folks whose Megan's Law classifications were imposed not by a judge but by the county sheriff or, as the courts put it, "by operation of law."

Their situation would have been resolved if Bodyke had said that Adam Walsh was punitive.  If it was punitive, then it simply couldn't be applied to anyone whose offense occurred before the Act's effective date.  We'd made the argument.  The court ignored it.

Today though, in a 5-2 vote, they answered.  In State v. Williams the court said that Adam Walsh Act is punitive.

Really, it should have been self-evident.  But it should have been self-evident in 1998 when the Ohio Supremes decided that Megan's Law wasn't punitive.  It should have been self-evident in 2008 when the Ohio Supremes decided that a more onerous version of Megan's Law wasn't punitive.  And they should have said so last year in Bodyke.

Still, today they did.

Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive.

That's the Adam Walsh Act.  An honest recognition of what the General Assembly did.

Let's be clear.  Ohio can punish sex offenders pretty much as harshly as it wants as long as it doesn't order them executed.  At least, that's what the berobed ones at the US Supreme Court say.  What it can't do is punish them in new and exciting ways if the punishment wasn't authorized when they committed their crimes.  That's what the Ex Post Facto Clause of the US Constitution says.  And it's what, in somewhat different form, the Retroactivity Clause of the Ohio Constitution says.

The Williams court wisely skipped over the Ex Post Facto issue.  Williams  is based entirely on the Ohio Constitution.  And that's as it should be, for Ohio's Adam Walsh Act is quintessentially an Ohio mess.

There's a bottom line here that nothing to do with sex offenders or the Adam Walsh Act except as incidental actors.

The Columbus 7 (really, just the 5 of them who formed the majority) stepped back from the tough-on-crime, easy-to-say solution.  They engaged with the real world and spoke a basic truth.  Ohio's sex offender registration and notification law is in fact punishment.  What follows from that, and why Williams is far more important than just to those men and women it will help, is why I'm carrying on today.

Because it's a vote for the Rule of Law over the Law of Rule.