Roll call: sex offenders

1-6-2008 Ohio:

The challenges to Ohio’s new sex offender registration law are mounting in Tuscarawas County.

So far, 10 petitions seeking relief from the new law have been filed in Common Pleas Court. Some are filed by the offenders themselves, while others are filed by attorneys representing the offenders.

On Friday, Judge Edward O’Farrell issued a stay in the case of a Magnolia man who sought to block his reclassification from a sexually oriented offender to a Tier II offender. According to court records, the man was convicted of two counts of gross sexual imposition in Stark County in 1997.

The change would have required the man to register twice a year for an additional 15 years. Under O’Farrell’s order, the man must continue to register as mandated under the old law.

A hearing has been set for Feb. 19. O’Farrell established a schedule in the meantime for the man’s attorney, Rick Pitinii of Canton, and prosecutors to file written documents addressing the legal issues raised in the man’s petition. Primary among Pitinii’s arguments is the assertion that the retroactive nature of the new law is unconstitutional.

This is the first case of this type to cross O’Farrell’s desk. He said Friday he plans to handle all other similar cases assigned to him in this way and prosecutors agreed with the move.

Judge Elizabeth Lehigh Thomakos has taken a similar position. On Thursday she issued a stay in the case of another sex offender challenging his reclassification. The stay will remain in effect until the Ohio Supreme Court reviews the matter.

Common Pleas Court judges in Stark County also have put a moratorium on reclassifications until March when prosecutors and defense attorneys will debate the constitutional issues of the law change.

Pitinii argued that if an offender who was not subject to community notification under the old law is reclassified and made subject to community notification, the offender will be irreparably harmed should the law later be found unconstitutional.

The new statute – which went into effect Jan. 1 – eliminates the previous registration categories of sexually oriented offender, habitual sex offender and sexual predator and implements a three-tier system with longer and more stringent reporting requirements. According to the Ohio attorney general, Ohio has about 17,000 registered sex offenders.

O’Farrell said the retroactive nature of the law, Ohio’s version of the federal Adam Walsh Act, will be argued many times relating to its constitutionality. While he declined to comment on it, he said he expects the matter to be decided eventually by the Ohio Supreme Court.

“For everyone who did not finish their period of reporting by July 1, 2007, those people are subject to retroactive reclassification,” O’Farrell explained. “For everyone who is no longer required to report, this won’t apply to them. But the majority of people are still reporting.”

The controversy doesn’t stop there, he said. Prior to 2008, first-time offenders convicted of sexual battery who were not likely to reoffend were considered sexually oriented offenders who were required to register annually for 10 years. Under the new law, sexual battery is considered a Tier III offense with lifetime registration and community notification.

“There won’t be a challenge as to whether the Legislature can declare sexual battery a Tier III offense,” he said. “There will be a challenge as to the retroactivity because they don’t have due process.”

The Act, named after the murdered son of television’s “America’s Most Wanted” host John Walsh, also makes people convicted of non-sex crimes subject to reporting. For example, a conviction for kidnapping a minor by someone other than a parent can result in a person having to register.

O’Farrell said the new law is offense-driven, meaning judges have no discretion in deciding what category to put an offender in based on the offender’s conduct or the offender’s likelihood of reoffending. Each sex offense is listed under one of the three tiers. However, a prior conviction under one tier automatically bumps the offender into the next tier regardless of the offense.

“It’s hard not to come to the conclusion that the legislation didn’t have faith that judges were declaring people sexual predators when they should have,” he said. “To a certain extent, it makes it simpler for me.

“But I’m a judge – I’m elected to use my discretion, to use discernment and contemplation on issues. I ought to be able to judge when an individual circumstance warrants a deviation from a certain penalty. But the Legislature has the right to make laws and we have the obligation to follow them.”

Under the new law, failure to comply with registration guidelines will result in a crime punishable by at least one year in prison. The new law also provides for reduction of registration periods for Adult Tier I and Juveniles Tier III if there has been a clean record and other criteria have been met. ..more.. by RENEE BROWN, T-R Staff Writer