OH- Sex Offenders Challenge the Law

3-19-2008 Ohio:

ELYRIA — In the first day of hearings on complaints from sex offenders who have been reclassified under a new state law, prosecutors and defense attorneys got through nine cases Tuesday.

That leaves at least 361 objections from Lorain County offenders challenging the constitutionality of the new law.

Defense attorneys Laura Perkovic and Kenneth Lieux both argued that the law, which took effect at the beginning of the year, unfairly applies the new registration requirements retroactively.

“There is additional punishment,” Perkovic said. “This is all punitive.”

Under the new law — known as Adam’s Law for Adam Walsh, a 6-year-old Florida boy abducted and killed in 1981 — every state must impose uniform sex offender classifications by 2009 or lose federal funds. When Ohio’s version of the law took effect, the state had to reclassify every sex offender in the state to meet the new guidelines.

Lieux said the state and federal constitutions prevent additional criminal sanctions from being imposed after someone has already been convicted and sentenced for a crime.

The law would be fair if it only applied to those who committed sex crimes after it took effect, critics have said.

Assistant County Prosecutor Robert Flanagan said the law wasn’t a criminal sanction and reflected only a minor change.

“It’s like changing a name from Coke to Pepsi,” he said.

Visiting Judge William Coyne, who will decide the cases, disagreed.

“That’s not necessarily accurate,” he said. “It’s more than just changing a name.”

Coyne also rejected Flanagan’s argument that the only thing he should consider in the hearing was whether the sex offenders had been properly notified by the state, saying he would at least consider the constitutional arguments of the sex offenders.

Flanagan also argued that the changes were designed to protect the public from sex offenders, not sex offenders from the embarrassment of community notification.

Lieux said the state was effectively breaching the contracts it entered into with his clients when they agreed to plea bargains in their cases. He said if the law is allowed to stand and punish sex offenders whose cases were already concluded, it means the state could impose harsher and harsher penalties on sex offenders at a later date.

“What’s to say the legislature won’t do something more draconian in the future?” he said.

Lieux and Perkovic also complained that the state hadn’t followed the law when it notified the state’s approximately 30,000 sex offenders of the changes. Instead of using registered mail, as the law required, they said the state used certified mail.

According to the U.S. Postal Service, certified mail costs $2.65 plus postage and provides a receipt that the addressee has received the letter. Registered mail is a more secure means of sending mail and costs $9.50.

Jennifer Brindisi, a spokeswoman for Ohio Attorney General Marc Dann, whose office sent the notification letters, said the state complied with the law because state law defines the two types of mail as being the same thing.

“We are complying due to the definition under Ohio law of what certified mail and registered mail is,” she said.

Coyne said the state had made an effort to comply with the spirit of the law and he wouldn’t consider that a reason to overturn the changes.

Flanagan said Coyne plans to hear about 25 cases per month.

It’s a pace that could drag the hearings well into next year. ..more.. by Brad Dicken at 329-7147 or dicken@chroniclet.com.