SEX OFFENDER REGISTRATION UPDATE The Federal Adam Walsh Act and Ohio’s SB 10

The Adam Walsh Child Protection & Safety Act of 2006  Sex Offender Registration & Notification Act (SORNA)  Creates a tiered system of classification for sex offenders (convicted of federal crimes or engaged in interstate travel), and requires all jurisdictions come into compliance with the new system by July, 2009, or face funding loss.  All sex offenders are required to register in each county of residence, employment, education, and conviction; and keep registration current.  Imposes new durations for registration periods and frequency of in-person verification, as well as new grounds for classification.

Sex Offender Registration & Notification Act (SORNA)  Compliant jurisdictions must:  Impose a maximum penalty of at least 1 year for offender’s failure to comply with registration/verification requirements  Require offender to provide SSN, all addresses, places of employment, and license plate #’s of accessible vehicles  Include in the registry: physical description, current photo, criminal history, finger and palm prints, DNA sample, criminal offense, and photo-copy of state-issued identification  Provide public access to sex offender information via the internet (excluding victim identity, SSN, & references to arrests not resulting in conviction. Jurisdictions may choose to exclude Tier I offender information and employment/education information).

Other Provisions of the Adam Walsh Act  Increases criminal penalties for using misleading internet domain names to direct children to harmful material/obscenity (maximum increased from 4 years to 10) (Title II).  Revises and expands provisions authorizing civil and criminal asset forfeiture in child sexual exploitation and obscenity cases (Title V).  Revises recordkeeping requirements for producers of actual sexually explicit conduct to cover digital images or computer-manipulated images of actual human beings (Title V).  Makes it unlawful for any producer of sexually explicit materials to refuse inspection of its records (Title V).  Amends the federal criminal code to prohibit the production of obscene materials for sale or distribution in interstate commerce (previous law prohibited the transportation, distribution, and sale of such materials (Title V).  Record-keeping requirements under 2257 now apply to secondary producers, and apply to the producers of digitally created or computer manipulated explicit sexual activities where those depicted are actually human beings (Title V).

The Tier System  AWA creates a three tier system (Tier I, Tier II, and Tier III).  Tier I offenders must register annually for 15 years.  Tier II offenders must report every six months for 25 years.  Tier III offenders must report every 90 days for life.  Classification is mechanically assigned based upon the offense convicted, not on the likelihood of the individual to re-offend.

Tier I – Federal and Ohio  Tier I – Federal  Sex offenders other than Tier II or Tier III sex offenders.  Tier I – Ohio  Offenses including:  Importuning  Unlawful sexual conduct with a minor if the offender is less than 4 years older and has no previous conviction of certain crimes.  Voyeurism  Sexual Imposition  Gross Sexual Imposition  Illegal Use of a minor in nudity-oriented material/performance  Child enticement with sexual motivation (New)  Pandering obscenity (new)  Menacing by stalking with sexual motivation (New)  Unlawful restraint with sexual motivation (New)  Child-victim offender not in Tier II or Tier III

Tier II – Federal  Tier II – Federal  Offenses punishable by more than 1 year imprisonment, including:  Sex trafficking  Coercion and enticement  Transportation with intent to engage in criminal sexual activity  Abusive sexual contact  Solicitation to practice prostitution  Possession or production of child pornography  An offense committed after Tier I classification

Tier II – Ohio  Tier II – Ohio  Offenses including:  Compelling prostitution  Pandering obscenity involving a minor  Pandering sexually oriented material involving a minor  Illegal use of a minor in nudity-oriented material or performance  Unlawful sexual conduct with a minor when the offender is at least 4 years older OR has a prior conviction of certain crimes  Gross sexual imposition, victim under 13  Child Endangering  Kidnapping with sexual motivation  Kidnapping, victim over 18  Abduction with sexual motivation (New)  Any sexual offense that occurs after the offender has been classified as a Tier I offender  Pre-AWA Habitual offenders, unless re-classified after hearing

Tier III – Federal  Tier III – Federal  Offenses punishable by more than 1 year imprisonment, including:  Sexual abuse  Abusive sexual contact against a minor under 13  Conduct involving kidnapping a minor  Offense committed after Tier II classification

Tier III – Ohio  Tier III – Ohio  Offenses including:  Rape  Sexual battery  Aggravated murder with sexual motivation  Murder with sexual motivation  Unlawful death or termination of pregnancy as a result of committing or attempting to commit a felony with sexual motivation  Kidnapping of a minor, not by parent  Kidnapping of a minor to engage in sexual activity  Felonious Assault with sexual motivation  Pre-AWA predators unless re-classified after hearing  Any sexual offense that occurs after the offender is classified as a Tier II or III offender.

Ohio – Juvenile Registrants  AWA defines “convicted” to include certain juvenile adjudications  Applies to juveniles 14 or older  SB 10 creates a new definition: “Public Registry-Qualified Juvenile Offender Registrant (PRQJOR), which includes juveniles adjudicated delinquent of rape, sexual battery, aggravated murder, murder or kidnapping with sexual motivation  PRQJOR are Tier III offenders who appear on the website under the same conditions as adults  PRQJOR = lifetime registration; unlike other juveniles adjudicated delinquent in the Tier system, unable to petition for re-classification or de-classification.

Ohio – Juvenile Registrants  SB 10  Non-PRQJOR juveniles retain the same hearing rights and process as previously existed under Ohio Juvenile Law, including:  Mandatory and discretionary classification  Mandatory hearing after completion of disposition  Eligibility for reclassification or declassification (cannot be bumped up a tier)  Ability to petition for reclassification or declassification

Ohio – Reduction for Clean Record  The new classification system does not analyze the individual offender’s likelihood of re-offense. Only in two instances can a registration period for an “eligible offender” be reduced.  SB 10 defines “eligible offender” as one who has:  No criminal offenses, except minor traffic infractions;  Completed sex offender treatment program  Paid financial sanction.  Tier I adults  possibility of 5 year registration reduction (10 year reporting period).  Tier III PRQJOR juveniles  possibility of reducing lifetime reporting to 25 years.

Failure to Comply  AWA requires that the penalty for failure to register shall have at least a maximum sentence of more than 1 year imprisonment  In Ohio, all failure to register offenses must at least be a felony of the 4 th degree (see SB 97)

Ohio’s Registry  Former registry contained most of the required registration elements. Additions:  Text of offense, supervision status, criminal history  DNA: indicate in registry that the sample has been taken and entered in CODIS database  Fingerprints and palm prints: digital or links to database  Temporary lodging information  Passports

Constitutional Problems  Retroactivity: US AG issued a rule making AWA retroactive; SB 10 incorporates the retroactive aspect of AWA  “Super Retroactivity” in the AWA guidelines = person who has been convicted of a sex crime, is no longer in the system, and later commits a non-sex crime, is required to register.  Super Retroactivity is not incorporated in SB 10  Due Process: SB 10 gives registrants the right to a hearing to challenge classification, but the right is limited to challenges of application and improper tier classification.  Separation of Powers: SB 10 allowed Ohio AG, not a court, to recategorize exsiting offenders into new tier system  Ex Post Facto/Cruel and Unusual Punishment: But only if registration is punitive and not remedial!

Court Developments - Ohio  State v. Bodyke, 2010-Ohio-2424 (June 3, 2010) Reclassification provisions allowing AG to reclassify Megan’s Law sex offenders into SB 10 tier system violated separation of powers. Megan’s Law registration requirement is final judgment that cannot be reopened by the AG. Silent as to impact of SB 10 on pre-Megan’s Law offenders or offenders not required to register pre-SB 10 but reclassified by AG. Reclassification provisions severed, but remainder of SB 10 left in tact.  State v. Williams, 2011-Ohio-3374 (July 13, 2011) Retroactive application of SB 10 declared unconstitutional under Ohio Constitution’s ban on ex post facto laws. Unlike its predecessor, SB 10 is punitive rather than remedial. SB 10 requires in-person registration with law enforcement in various jurisdictions (home, work, school, travel); community notification is expanded; residency restrictions apply prospectively; unlimited residency verification by sheriff. Because SB 10 imposes automatic, offense- specific registration duties, it is not remedial or intended to protect the public, but constitutes punishment that cannot be applied retroactively.

Court Developments - Ohio (con’t)  In Re C.P., 2012-Ohio-1446 (Ohio Apr. 3, 2012) Lifetime sex offender registration for juveniles violates 8 th Amendment cruel and unusual punishment provision and constitutional right to due process. CP, age 15, was convicted of two counts of rape and one count of kidnapping and labeled a public-registry-qualified juvenile offender registrant (PRQJOR), thus automatically subject to lifetime registration. Citing recent US Sup Ct precedent limiting life sentences for juveniles (Roper v. Simmons and Graham v. Florida), the Ohio Sup Ct found lifetime registration to constitute cruel and unusual punishment. Numerous states refused to adopt AWA due to its stringent juvenile registration requirements, evidence of evolving standards of decency regarding juvenile sex offenders. Lifetime registration requirement also violated due process by mandating that juvenile courts label certain delinquent youth as PRQJOR’s.

Court Developments – Ohio (con’t)  In Re Bruce S., 2012-Ohio-5696 (Dec. 6, 2012) Sex offender registration cannot be applied to a defendant who committed a sex offense between July 1, 2007 (repeal of Megan’s Law) and January 1, 2008 (effective date of Ohio’s Adam Walsh Act/SB10). Under State v. Williams, SB 10 cannot apply retroactively. Since Megan’s Law was repealed at the time of the crime, Bruce S. cannot be forced to register. Note: Case proceeds in pseudonym to protect Bruce S.’s privacy interest in not registering.

Court Developments – Federal  US v. Parks, 698 F.3d 1 (1 st Cir. 2012); US v. Young, 585 F.3d 199 (5 th Cir. 2009); US v. Leach, 639 F.3d 769 (7 th Cir. 2011); United States v. May, 535 F.3d 912 (8 th Cir. 2008); ACLU of Nevada v. Masto, 670 F.3d 1046 (9 th Cir. 2012); US v. Hinckley, 550 F.3d 926 (10 th Cir. 2008); US v. WBH, 664 F.3d 848 (11 th Cir. 2011) Adam Walsh Act/state equivalent does not constitute punishment and therefore does not violate ex post facto and/or double jeopardy (follows Smith v. Doe, 538 U.S. 84 (2003).

Ohio vs. the Federal Courts Where do we go next?