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Courts Find Ohio Adam Walsh Act Unconstitutional

Cuyahoga County Judge Ronald Suster held on May 9, 2008 that Ohio’s Adam Walsh Act violates the retroactivity clause of the Ohio Constitution and is an ex post facto law.

Ohio has maintained a sex offender registry since 1963. The first substantial revisions to the registration law occurred in 1996; under the 1996 amendments, Ohio sex offenders were classified into one of three categories. The first category, sexually oriented offender, encompassed relatively minor sex offenses such as voyeurism. The second two categories, habitual offender and sexual predator, were reserved for more serious crimes.

Sex offenders were subject to registration and verification under the law. The statute required offenders to register with the county sheriff, providing at a minimum a current home and business address, plus a photograph. The frequency of verification
requirements depended on the offender’s classification. Sexually oriented offenders were required to verify their current home address annually for ten years, habitual offenders for twenty years, and sexual predators for life. Sexual predators, however, could request a hearing to determine if they remained a threat to the community. If the court found they were not a threat, the verification requirements could be removed.

The 1996 law further imposed a community notification requirement. Under the notification provisions, sheriffs were ordered to inform all community members of a sex offender’s registration. This included the offender’s adjacent neighbors, local law enforcement agencies, and officials involved with the safety of children and victims. The 1996 law faced much scrutiny. It was initially struck down by an appellate court but later revived by the Ohio Supreme Court, which found the statute was neither “impermissibly retroactive nor an ex post facto law.” State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (Ohio, 1998), cert. denied.

In 2001 and 2003, the Ohio legislature amended the registration statute again. Among the amendments was the removal of a sexual predator’s ability to obtain a hearing regarding future dangerousness; the barring of sexually oriented offenders from living within 1,000 feet of a school; the granting to landlords and municipalities the right to seek injunctive relief against offenders living in the 1,000-foot zone; and the creation of a sex offender internet database accessible to the public.

In 2006, Congress enacted the Adam Walsh Act (named after the slain son of America’s Most Wanted host John Walsh). The Adam Walsh Act required states to pass similar laws or face a 10 percent reduction in federal funds for law enforcement programs. Ohio, like most other states, complied with the mandate by enacting the Ohio Adam Walsh Act of 2007.

Ohio’s Adam Walsh Act mandated reclassifications for sex offenders, extended the length of time for registration, heightened community notification requirements, and prohibited offenders from living within 1,000 feet of a school, pre-school or child day care center. The Act also authorized landlords to terminate rental agreements, and permitted property owners and other officials to obtain injunctive relief to force offenders living within 1,000 feet of a school to move out.

Tremaine Evans, a sex offender convicted in 2003, sought an order enjoining enforcement of Ohio’s Adam Walsh Act. Evans argued that the law violated the state Constitution’s retroactivity clause and constituted an ex post facto law under the U.S. Constitution.
Judge Suster of the Cuyahoga County Court of Common Pleas agreed. The Act was designed to punish and further ostracize sex offenders, the court found, and such a law could not be applied retroactively. Accordingly, the court enjoined the application of the Act as to Evans. See: Evans v. State of Ohio, Cuyahoga County Court of Common Pleas, Case No. CV-08-64679. The ruling is available on PLN’s website.

State officials who thought the ruling was an anomaly must have been disappointed when another Ohio court reached the same conclusion. On August 11, 2008, in a suit filed by registered sex offender William Sigler, Richland County Common Pleas Judge James DeWeese found that the Adam Walsh Act’s retroactive reclassifications constituted an ex post facto violation. Sigler successfully argued to restore his least-serious classification as a sexually oriented offender, after he had been reclassified as a sexual predator. See: Sigler v. State of Ohio, Richland County Court of Common Pleas, Case No. 07-CV-1863.

Hundreds of other cases have been filed over the reclassification provisions of the state’s Adam Walsh Act. The Ohio Supreme Court is expected to eventually determine the constitutionality of the Act as it relates to retroactivity.

Sources: News Journal,

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Related legal cases

Evans v. State of Ohio

Sigler v. State of Ohio