February 15, 2012
Sex Offender Registration

by Justice Paul E. Pfeifer

In November of 2007, a man named George Williams was indicted for unlawful sexual contact with a minor – a felony of the fourth degree. Williams pleaded guilty in open court.

Later, at his sentencing hearing, Williams was informed that he would be designated a Tier II sex offender under the newly passed Senate Bill 10 (“S.B. 10”). The judge ordered Williams to register in person in the county in which he resided, the county in which he was being educated, and the county in which he was employed, for a period of 25 years with in-person verification every 180 days.

S.B. 10 was actually the latest version of a sex offender registration law that had originally been passed by the Ohio legislature in 1996. That legislation had been inspired by the events in New Jersey in the summer of 1994, when seven-year-old Megan Kanka was abducted from her home, then raped and murdered by a neighbor named Jesse Timmendequas.

Timmendequas, who had a record of sex offenses, had moved in across the street from Megan and her family. He lived with two other convicted child molesters, but the neighbors didn’t know it.

The appalling circumstances surrounding Megan’s murder jolted the New Jersey legislature into quickly passing legislation that required public notification when a sex offender moved into a neighborhood. All 50 states and the federal government eventually passed some version of “Megan’s Law” that required released sex offenders to register with local officials, and then report back periodically thereafter.

In 2007, S.B. 10 amended Ohio’s version of Megan’s Law.  S.B. 10 was based on the federal Adam Walsh Act, named for the little boy who was abducted from a suburban Florida shopping mall and murdered. Sex offenders charged under S.B. 10 are now subject to additional reporting and registration requirements and are subject to those requirements for a longer time.

When George Williams appealed his sentence, he argued that the provisions of S.B. 10 cannot constitutionally be applied to a defendant whose offense occurred before July 1, 2007, when the new law went into effect. But the court of appeals disagreed, and affirmed the decision of the trial court. After that, Williams’s case came before us – the Supreme Court of Ohio – for a final review.

The issue before us was whether the new classification scheme for sex offenders under S.B. 10 – when applied to someone whose crime was committed prior to the enactment of the law – violates the prohibition against retroactive laws contained in the Ohio Constitution.

The pertinent section of the Ohio Constitution states that “the general assembly shall have no power to pass retroactive laws.” When analyzing whether a law is unconstitutionally retroactive, we use a two-part test.

In the first part of the test, we “ask whether the General Assembly expressly made the statute retroactive.” In this instance, part of S.B. 10 imposes registration requirements for offenders sentenced on or after January 1, 2008, regardless of when the offense was committed.

Because this portion of S.B. 10 was intended to apply retroactively, we then turned to the second part of the test, which requires us to determine whether the provisions are substantive or remedial.

What does that mean? A law is “substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, or obligations…” Put another way, a law that is substantive would be punitive in nature because it imposes a new punishment.

Remedial laws, on the other hand, “are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.”

Our court has long held that the retroactivity clause nullifies those new – substantive – laws, that “reach back and create new burdens…not existing at the time” that the law becomes effective. But remedial laws that are applied retroactively do not violate the retroactivity clause.

Prior to the passage of S.B. 10, there was debate about whether the sex offender registration law was remedial or punitive. But following S.B. 10’s passage, there is no doubt: the law is punitive. The law has changed dramatically since our court – in a case from 1998 – described the registration process imposed on sex offenders as an inconvenience “comparable to renewing a driver’s license.”

Under the law that was in effect when Williams committed the offense, he was entitled to a hearing at which a court would determine whether he should be classified in one of four categories – a sexual predator, a habitual sex offender, a habitual child-victim offender, or a sexually oriented offender. The court would have considered various factors in making its determination.

But under S.B. 10, Williams was classified as a Tier II sex offender based solely on the offense he committed without regard to the circumstances of the crime or his likelihood to reoffend. And he is automatically required to register in the county where he resides, the county where he works, and the county where he attends school, for 25 years.  Under the previous law, he might not have had to do any of those things.

Furthermore, all the registration requirements under S.B. 10 apply without regard to the future dangerousness of the sex offender. Instead, registration and other requirements are based solely on the fact of a conviction.

When we considered all the changes enacted by S.B. 10 in aggregate, we concluded that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive because it “imposes new or additional burdens, duties, or obligations…”

Accordingly, we concluded that S.B. 10, as applied to Williams or anyone else who committed a sex offense prior to its enactment, violates the Ohio Constitution’s prohibition on retroactive laws. Therefore – by a five-to-two vote – we reversed the judgment of the court of appeals and sent the case back for resentencing under the law that was in effect at the time Williams committed the offense.

EDITOR'S NOTE: The case referred to is State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. Case No. 2009-0088. Decided July 13, 2011. Majority opinion written by Justice Paul E. Pfeifer.