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Court Upholds Retroactive Application of Amended Sex Offender Reporting and Notification Rules

2007-1427.  State v. Ferguson, Slip Opinion No. 2008-Ohio-4824.
Cuyahoga App. No. 88450, 2007-Ohio-2777.  Judgment affirmed.
Moyer, C.J., and O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer, Lundberg Stratton, and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-4824.pdf

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(Oct. 1, 2008)  The Supreme Court of Ohio ruled today that applying 2003 amendments to R.C. Chapter 2950, the state’s sex offender registration and reporting law, to offenders whose crimes took place before the amendments were adopted does not violate prohibitions in the U.S. and Ohio constitutions against ex post facto or retroactive laws. The Court’s 4-3 majority opinion was authored by Justice Maureen O’Connor.

The case involved Andrew Ferguson of Cleveland, who was convicted of rape and kidnapping in 1990 and sentenced to a prison term of from 15 to 25 years.

In 1996, the Ohio General Assembly adopted legislation widely referred to as “Megan’s Law.” The bill (H.B. 180) required the classification of all future sexual offenders, and of all offenders then serving prison terms for prior sexual offenses, into one of three categories and imposed varying post-release registration and community notification requirements on those offenders according to their respective classifications. In a 1998 decision, State v. Cook, the Supreme Court of Ohio rejected a constitutional challenge to the retroactive imposition of the Megan’s Law registration and community notification requirements on offenders whose crimes were committed prior to the effective date of H.B. 180. In its opinion, the Cook Court held that the registration and community notification requirements enacted in 1996 were not constitutionally barred as ex post facto provisions because their primary intent and effect was not to impose additional “punishment” on prior offenders, but rather to protect the community from possible future sex crimes.

Effective in July 2003, the General Assembly adopted new legislation (S.B. 5) that expanded the 1996 Megan’s Law registration and community notification requirements for sexual offenders. Among other changes, S.B. 5 made classification as a sexual predator a lifetime designation; required offenders to register with the county sheriff not only in their county of residence, but also in any other county where they work or attend school; and expanded the community notification process to allow placing photos and other information provided to sheriffs by registered offenders in a database that is accessible to the general public via the Internet.

In 2006, the Cuyahoga County Court of Common Pleas conducted a hearing to establish which category of sexual offenders Ferguson, who was still in prison, should be placed in. Based on his criminal history and psychological assessments that found he had a high probability of future sexual offenses, Ferguson was classified as a sexual predator and ordered to comply with the most restrictive requirements set forth in the S.B. 5 version of the sex offender statute. Ferguson appealed to the 8th District Court of Appeals. Among other claims, he asserted that the trial court erred in requiring him to comply with the S.B. 5 version of the sex offender law because the amendments adopted in 2003 unconstitutionally increased the punishment for his 1990 convictions beyond the penalties that were in place at the time his crimes were committed. The 8th District rejected Ferguson’s arguments and affirmed his classification as a sexual predator. Ferguson sought and was granted Supreme Court review of the 8th District’s decision.

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 Ferguson 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 Ferguson’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

“After review of the General Assembly’s findings and its clear reaffirmation of an intent to protect the public from sex offenders, we are not persuaded that eliminating the provision that permitted removal of the predator classification was driven by a punitive or retributive intent,” wrote Justice O’Connor.  “To the contrary, we believe that the legislature did so in an effort to better protect the public from the risk of recidivist offenders by maintaining the predator classification so that the public had notice of the offender’s past conduct – conduct that arguably is indicative of future risk. Similarly, we believe that the General Assembly’s findings also support the conclusion that the more burdensome registration requirements and the collection and dissemination of additional information about the offender as part of the statute’s community notification provisions was not borne of a desire to punish. Rather, we determine that the legislative history supports a finding that it is a remedial, regulatory scheme designed to protect the public rather than to punish the offender – a result reached by many other courts.”

“Ferguson may be negatively impacted by the amended provisions, just as he was burdened by the former provisions. But ‘the sting of public censure does not revert a remedial statute into a punitive one.’ ... Ohio retroactivity analysis does not prohibit all increased burdens, it prohibits only increased punishment. ... Thus, notwithstanding ... the amended provisions of R.C. Chapter 2950, we do not conclude that the amended statute violates the retroactivity clause of the Ohio Constitution.

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent, joined by Justices Paul E. Pfeifer and Evelyn Lundberg Stratton, stating that in her view the added burdens and negative consequences to offenders included in S.B. 5 were sufficient to constitute punishment, and therefore to render the retroactive imposition of those sanctions on offenders for crimes committed before July 2003 unconstitutional. 

Justice Lanzinger noted that the Court’s holding in Cook that the 1996 version of sex offender statute was remedial rather than punitive was partially based on specific provisions that were removed or substantially altered by S.B. 5, and quoted from her partial dissent in a 2007 decision, State v. Wilson: “‘While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. ... Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.’”

Pamela Bolton, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

John T. Martin, 216.443.3675, for Andrew Ferguson.