Sex Crimes

Ohio Supreme Court Hears Four Cases On AWA Implementation

Speaking of the Adam Walsh Act, the Ohio Supreme Court recently heard four separate cases concerning the implementation of the Walsh Act. The Columbus Dispatch has more. You may view video of all four oral arguments and the online docket using the links below.

• State v. Bodyke, Case No. 2008-2052 (online docket)
• Chojanki v. Ohio Attorney General, Case No. 2009-0091 (online docket)
• In Re Adrian R., Case No. 2009-0189 (online docket)
• In the matter of Darian J. Smith, Case No. 2008-1624 (online docket)

Ohio Shorthanded in Its Efforts to Monitor Sex Offenders

Ohio might be the only state in compliance with the Adam Walsh Act, but it is also entirely shorthanded in its mission to monitor local sex offenders. From Cleveland.com:

Cuyahoga County has the most sex offenders in Ohio, but only two full-time deputies regularly check on the 1,416 people considered the worst offenders.

Other large Ohio counties have fewer offenders than Cuyahoga's 3,300 but use more deputies to perform the state-mandated address verifications for Tier III offenders such as rapists. Franklin County uses five; Summit and Hamilton counties each use four.

Residents on Imperial Avenue in Cleveland never knew Anthony Sowell was a convicted sex offender until police unearthed 11 bodies from his property.

Neighbors questioned why they weren't notified by the Sheriff's Office about Sowell's violent past. He served 15 years in prison for attempted rape. Those residents never knew because Sowell moved into the house after getting out of prison in 2005 -- three years before a law took effect that would have notified neighbors about his past.

Sowell was required to register his address with deputies every three months. He did it most recently on Sept. 2. A deputy verified it Sept. 22 -- eight hours before prosecutors say Sowell attacked a woman in his home.

The two Cuyahoga County deputies who knock on doors nearly every day said the law requires them to spend considerable time checking low-level offenders instead of the most dangerous offenders.

Sixth Circuit Split Over Retroactive SORNA Application

Today a divided Sixth Circuit panel reversed a sex offender's conviction for failing to register under SORNA. Prof. Berman at Sentencing Law & Policy and Prof. Adler at the Volokh Conspiracy have more. You may read the opinion here. From the opinion:

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.  The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.  The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.  Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required. 

This decision is a pretty significant departure from the majority of courts. It will be interesting to see if the en-banc-happy 6th Circuit will review the decision.

DOJ: Two Jurisdictions in Compliance With Adam Walsh Act

The Department of Justice issued a press release today announcing the first two jurisdictions to implement the Sex Offender Registration and Notification Act (SORNA), part of the Adam Walsh Act.  The two jurisdictions? Ohio and the Confederated Tribes of the Umatilla Indian Reservation. From the press release:

"We are pleased to announce the first two jurisdictions to substantially implement this important legislation," said Attorney General Eric Holder. "We are committed to working with the remaining states, tribes and territories with their implementation efforts."

The State of Ohio and the Confederated Tribes of the Umatilla Indian Reservation (located in the state of Oregon) have been working diligently with the Office of Justice Programs' Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) to achieve this milestone, according to officials from the SMART Office.

"This marks an important achievement for Ohio's families and children," said Ohio Attorney General Richard Cordray. "Effective tracking and monitoring of sex offenders equips parents with the information they need to keep their children safe. Taking deliberate steps to provide a common foundation for all the registration systems throughout the United States allows our families to make the most effective use of the information those systems provide."

While most states have had sex offender registry systems in place for more than a decade, the tribal communities only became registration jurisdictions after the passage of the Adam Walsh Act. The Umatilla Indian Reservation has made significant strides in substantially implementing the registration and notification systems in a relatively short time frame.

Ohio Sex Battery Not A 'Crime of Violence'?

Professor Jonathan Adler over at the Volokh Conspiracy has a post discussing the Sixth Circuit's decision in United States v. Wynn, where a divided panel found that a defendant's guilty plea to “sexual battery” under Ohio law was a not “crime of violence” for career offender purposes. You may read the Sixth Circuit's decision here. From a post entitled Is “Sexual Battery” A “Crime of Violence”?:

The question would seem to answer itself. Isn't "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

Antonio Wynn pleaded guilty to possession of cocaine with intent to distribute. Wynn had previously been convicted of assaulting a peace officer and pleaded guilty to “sexual battery” under Ohio Rev. Code § 2907.03. The district court concluded both constituted “crimes of violence for purposes of the federal sentencing guidelines, resulting in a longer sentence, but on appeal two judges on the Sixth Circuit were not so sure.

The reason for the uncertainty was that the relevant Ohio statute defines “sexual battery” to include actions that do not necessarily involve a threat or use of force as an element of the offense. For this reason, Judge Moore (who wrote for the majority) and Judge Gibbons were not sure that Wynn’s guilty plea necessarily constituted a prior conviction of a “crime of violence” because the plea had not specified the subsection of the statute that covered his alleged offense. Given the expansiveness of the relevant Ohio statute, the fact of conviction and the statutory definition of the offense alone were not enough to establish what Wynn had been convicted of an action with the requisite level of “violent and aggressive” conduct under United States v. Begay. Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn’s offense in the presentence investigation report – which indicated that Wynn’s conduct had been violent.

Judge Friedman, sitting by designation from the Federal Circuit, dissented, concluding it was proper for the district court to rely upon the factual recitation of Wynn’s prior offense. Wynn had failed to challenge any of the factual allegations contained in the presentence investigation report and, Judge Friedman concluded, the relevant facts “leave no doubt that the generic state crime to which he pleaded guilty was categorically a crime of violence.” Further, Judge Friedman argued, the district court could “take judicial notice of publicly available Ohio judicial records that show unequivocally that the state sexual battery offense of which Wynn was convicted was a ‘crime of violence.’”

Ohio Ban on Material to Juveniles

Eugene Volokh at Volokh Conspiracy and How Appealing had recent posts about a Sixth Circuit decision concerning an Ohio statute which outlaws dissemination of material that is harmful to minors. From Volokh:

The U.S. Court of Appeals for the Sixth Circuit just asked the Ohio Supreme Court to interpret the Ohio statute, so the Sixth Circuit can then determine whether the statute violates the First Amendment. (State supreme courts are considered the final expositors of the meaning — as opposed to the constitutionality — of state statutes, so federal courts will sometimes certify such interpretive questions to state courts.) The statute is indeed pretty complex, and in my experience fairly unusual.

It is an incredibly vaguely worded statute. What constitutes material that is harmful to minors is open to a broad range of interpretations. I'll be interested to see how narrowly the Ohio Supreme Court construes the language of the law.

Sex Offender Madness

I'm a bit slow in responding to apublicdefender's call for help regarding a story about sex offender madness (I blame my cold that will never go away). From the original post:

Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.

A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering....

If the State registers Doe, it is an illegal act in violation of the laws of the State of Ohio. If the State doesn’t register Doe, he’s in violation of his Federal probation. So who wins? The State or the Feds? Either way, there’s only one loser: the sex offender.

Update: An alert reader asks if Ohio is the only state that is facing this problem. Do any of you know whether other states have faced this issue? Any lawsuits pending? Any AWA expert? CRY, you out there?

I don't know of any other fact patterns that are exactly like what is occurring in Ohio. However, there have been federal prosecutions of offenders who were not required to register in the state they were residing (U.S. v. Husted is one example). That usually occurs because the state in which the offender is living has not applied the state registry to crimes before the passage of the enabling statute.

Although I ultimately think the registration provisions of the AWA are unlawful exercises of federal jurisdiction under the Commerce Clause, I'm not sure the specifics of the Ohio case trouble me more than any other use of those provisions. It's possible that I've just become jaded to these fact patterns. Nonetheless, I think this is like the exception to double jeopardy when a person can be prosecuted by the federal government and state government for the same crime. When you are dealing with two different sovereigns and two different sets of registration requirements, I don't see any conflict of the laws. I think the result is effecitvely a trumping of state rights, but it is no worse than the usurption of medicinal marijuana laws allowed in Raich or the aforementioned double jeopardy exception. Maybe I'm missing something, but I think this is an inevitable result of the AWA so I'm not surprised at all.

Now, if Ohio refuses to comply with the AWA (and sacrifices Byrne grants), then maybe the story changes. However, courts allowed prosecutions under the AWA to occur even though no state had complied (and not a single federal court has held otherwise). Strangely, the federal probation offices might be doing these offenders a favor. If they aren't listed on the Ohio registry, they can be prosecuted for a 2250(a) violation under SORNA. 

Teen Who Sent Nude Pics of Self Won't Be Classified As Sex Offender

The 15 year old girl accused of using a cell phone to send nude pics of herself (previously discussed here), apparently will not be classified as a sex offender.  The prosecutor and defense attorney issued a joint statement today.  From The Newark Advocate:

Prosecutor Ken Oswalt and defense attorney Jill Cochran issued the release following a pretrial Monday.

“Because this court proceeding has yet to occur, it would be inappropriate to comment on many of the specifics of the parties’ joint agreement,” Oswalt wrote. “However, it is important to note that this agreement would not require her to register as a sex offender.”

The two sides announced that an agreement had been reached at the conclusion of the pretrial, which included Juvenile Division Common Pleas Judge Robert Hoover, Licking County Assistant Prosecutor Erin Welch, Oswalt, Cochran and two representatives from Franklin County Children’s Services, where the foster agency that placed the girl is located.

A formal court proceeding will be held in the coming weeks.

The girl was arrested Oct. 3 and spent the weekend in custody after school officials were alerted to the situation and passed the information to the school’s resource officer.

She pleaded deny Oct. 6 to one count each of illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony, for the cell phone.

Her alleged actions occurred about a month after Oswalt visited LVHS and warned students against engaging in this type of behavior, as he had at other county high schools.

According to a statement from Oswalt, the girl was pulled aside by LVHS staff and personally cautioned to take heed of his presentation immediately after it concluded.

While I expect the parties have reached an agreement under state law (which is for the best), I'm not sure they can do anything to diminish her obligations under the AWA in its current form.

Victims as Defendants

A few weeks ago, we mentioned a new bill signed into law by New York Gov. David Paterson which shields sexually exploited children from being charged with prostitution. A Stitch in Haste ties together the law with a different case we discussed the other day:

It’s a long-standing principle in the law that “predatory” crimes should not be applied to those whom the law is meant to protect. So, for example, minors usually (though not always) cannot be prosecuted for statutory rape. Due process demands (or ought demand) that someone cannot simultaneously be the perpetrator and the victim of the same crime.

[The new law] [m]akes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York’s dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn’t it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren’t they “incompetent” (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York’s homeless youth identify as gay or lesbian; this source says “more than 20%”). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term “predatory” crimes in my opening sentence (i.e., as opposed to “victimless” crimes)? Should conduct that is not “predatory” ever be a crime in the first place?

Ohio Supreme Court Upholds Registration Statute Against Ex Post Facto Challenge

Sentencing Law and Policy reports that the Ohio Supreme Court has ruled that amendments to the state's sex offender registration and reporting law  apply retroactively and do not violate prohibitions on ex post facto laws.  The decision itself (which split 4-3) is here and an official press release is here. The Columbus Dispatch has more.  From the official press release:

Writing for the majority in today’s decision, Justice O’Connor affirmed the court of appeals’ holding that applying the S.B. 5 sex offender classification, registration and community notification requirements to [the defendant] did not violate the ex post facto provision of the U.S. Constitution or the retroactivity provision of the Ohio Constitution.

Justice O’Connor noted that in its 1998 Cook decision, the Court had already upheld retroactive application of the 1996 sex offender registration statute on the basis that the classification, registration and notification requirements it imposed on prior offenders were remedial rather than punitive in nature. In reviewing [the defendant]’s claims based on the 2003 version of the same statute, she wrote, the Court’s task was therefore to review the S.B. 5 amendments to R.C. Chapter 2950 and determine whether those changes reflected a change in the legislature’s intent from the protection of the public to punishment of offenders.

Analyzing in turn each of the amended sections of R.C. Chapter 2950 requiring an offender’s classification, periodic registration with law enforcement and community disclosure, Justice O’Connor found that in each instance the changes imposed by S.B. 5 reflected the same intent to protect the public and prevent future sex crimes as the earlier version of the statute analyzed in Cook.

Berman highlighted the assertion of the dissent that the statute under review was different than that reviewed in the prior Cook case:

Although the majority continues to rely on State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive application of R.C. 2950.09(B), R.C. Chapter 2950 has been amended. The simple registration process and notification procedures are now different [and] R.C. Chapter 2950 has been transformed from remedial to punitive.

The dissent went through several differences between the original statute and the new one. Some are a bit nitpicky, but I think the personal appearance requirement difference is notable. In the USSC decision in Smith v. Doe, the Court considered the lack of personal appearences in the statute was a notable part of finding the statute was regulatory. Still, the Ohio state court basically mirrors the pattern at the federal level of courts treated all sex offender registration statutes as the same. However, some of these laws are definitely not like the others.