Stephens Successful in Strengthening 'Megan's Law'

Take Note: The method of classification in this bill is not the method used in the Adam Walsh Act! Pennsylvania will use its own "Assessment Board" to assign the Tier Levels. Will the SMART Office allow this?

UPDATE: A reader corrects me, this article is poorly written, the Classification system to be used IS THE ONE FROM AWA!

12-17-2011 Pennsylvania:

The legislation would make it a felony for teachers to have sex with students.

Legislation sponsored by State Rep. Todd Stephens aimed at providing better protection for children is awaiting Gov. Tom Corbett's signature.

The soon-to-be-enacted law would bring the state into compliance with the Adam Walsh Child Protection and Safety Act of 2006 and would close loopholes in the state's Megan's Law.

Senate Bill 1183 also included provisions proposed by Stephens to prohibit sexual conduct between students and school employees making it a felony of the third degree punishable by up to seven years imprisonment and/or a fine of up to $15,000. This initiative was first proposed by Stephens’s former colleagues on the sex crimes unit in the Montgomery County District Attorney’s Office and Montgomery County District Attorney Risa Vetri Ferman.

“We must insure our children are protected from sexual predators,” Stephens (R-151) of Horsham, said in a press release. “The package sent to Gov. Corbett incorporates many proposals offered to make sure the law effectively guards our kids from harm, including my proposal to criminalize sexual conduct between students and school employees such as teachers and coaches.”

The Adam Walsh Act is a federal law that was developed in order to ensure every state has the same set of comprehensive standards that strengthen the nationwide network of sex offender registration and notification programs. Under federal law, failure of any state to come into what the Department of Justice terms “substantial compliance” with the Adam Walsh Act results in a state forfeiting 10 percent of its federal grant.

In keeping with the dictates of the Adam Walsh Act, the legislation:

---Places offenders in a three-tiered system depending upon the severity of the offense. Individuals convicted of a: Tier I offense must register for 15 years; Tier II offense must register for 25 years; and Tier III offense must register for life.

---Requires sex offenders in each tier to appear in person to be photographed and to verify and update information in the state sexual offender registry. Sexual offenders in the three tiers are required to appear annually (Tier I), every six months (Tier II), or every 90 days (Tier III).

---Requires that after a sex offender registers or updates registration in the sexual offender registry, notification be provided to law enforcement, probation and parole, schools and social service agencies responsible for protecting children.

---Authorizes the Pennsylvania State Police to launch a new feature on the sexual offenders Web site that will enable members of the general public to obtain information on sex offenders for any given ZIP code or geographic radius.

In addition, the legislation maintains the major components currently found in Pennsylvania’s Megan’s Law and closes loopholes for homeless and out-of-state sex offenders.

As is the current practice, the bill provides that every sexual offender be assessed by the Sexual Offender Assessment Board. Further, the bill requires that if certain criteria is met that the offender be designated a sexually violent predator. Such a designation, as under current law, requires that notification be made to neighbors and others in the community.

“It is critical we protect our children from those who would abuse their positions of trust and superiority,” Stephens said. “We should never tolerate teachers or coaches having sexual contact with our students.” ..Source.. by Theresa Katalinas

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Bill would restore ability to evaluate sex offenders

3-30-2011 Nevada:

The Senate Judiciary Committee has recommended passage of a bill to restore the parole board's ability to evaluate inmates who committed sex crimes in another state.

Board Chairman Connie Bisbee told the committee legal changes made in a previous session effectively blocked the board from ordering a psychological evaluation panel for inmates unless the sex crime they committed occurred in Nevada. She said they aren't able to order a psychological evaluation for inmates who are in Nevada's prison system for a non-sex offense but who have a prior history of sex offenses in another state.

“This would allow the board to look at these offenses and say, I think we need a psych panel,” she said.

She told the committee without a psych-panel evaluation, the board can be put in the position of denying parole to an inmate who might otherwise be eligible. And without an evaluation, she said there is a possibility a potentially dangerous inmate could be released when he shouldn't be.

The committee voted unanimously to send Senate Bill 187 to the Senate floor with a “do pass” recommendation. ..Source.. by Nevada Appeal Capitol Bureau

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Waco council on Sex Offender Treatment is against the Adam Walsh Act

We must remember that the Adam Walsh Act was conceived BEHIND CLOSED DOORS with a Bush appointed Secret Service agent in the midst of that tiny group of lawmakers, and other lawmakers were prevented from voicing their opinions, by use of "Suspension of the Rules" trickery when such a bill is not intended to be heard by suspending the rules. The aim of a law crafted like that, is not truthfulness, its control plain and simple, the classification system is one designed to harm registrants and prevent them from letting the public know the truth about registrants. Strange, people do change as they mature, we all know that, but this classification system, says NO they don't! Truth or Fiction? What is the aim of AWA's classification system? There are some who see the truth...

10-7-2010 Texas:

Waco-- Waco members of the Texas Council on Sex Offender Treatment are against the Adam Walsh Act for the state of Texas. The Adam Walsh Act bases the risk level of a sex offender only on the title of their offense, rather than assessing each offender to determine how dangerous they really are.

Dr. Aaron Pierce, a member of the Sex Offender Treatment council from Waco, says, "Title of offense doesn't tell us how many victims the person has, doesn't tell us if their attracted to children, and it doesn't tell us if their violent. So, there is nothing about title that's useful in determining how dangerous a sex offender is, or what we need to do with them in terms of registration."

Mr. Pierce also says that under the Walsh Act, juvenile sex offenders will be registered for the rest of their lives. He believes that juveniles should be scientifically assessed when they become older, rather than being a registered sex offender for the rest of their lives.

He says the Adam Walsh Act will also cost the state of Texas 1.7 million dollars

Members on the Texas Council on Sex Offender Treatment believe that by adopting the Adam Walsh Act, sex offenders could be labeled as high or low risk offenders when they should be labled the opposite. This could possibly cause more overall offenses. ..Source.. Katelin Kelly - Reporter

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Ohio Court Rules on Sex Offender Classification

This appears to be a local cop trying to get noticed, not a decision on the pending question in the Ohio Supreme Court. Further, the Ohio Supreme court has not ordered anyone to do anything, they have merely invalidated two laws. Beyond that, nothing has been heard on anything further....

6-21-2010 Ohio:

Ohio Supreme Court has ruled in a decision to require the Ohio Attorney General's Office to contact sex offenders and update them of their classification status.

The Ohio Attorney General's Office has begun to remove individuals from the sex offender registry who no longer have to register as sex offenders as directed by the Ohio Supreme Court.

According to a news release by the Gallia County Sheriff's Office, the Attorney General's Office is responsible for contacting the offenders as they are removed from the registry.

Over the next several weeks, the Attorney General's Office will then contact offenders who remain on the registry that will have new classifications as a result of the Supreme Court's decision.

It is the recommendation of the Gallia County Sheriff's Department that offenders continue reporting until their status has been finally determined. ..Source.. by WOWK Channel 13 News

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The Ohio Supreme Court is Asked to "Look Again" at its Decision in State v Bodyke

6-15-2010 Ohio:

The State and the Ohio Attorney General ask the high court to look again at its decision in State v Bodyke, because it seems to contain ambiguities.

In the original decision the court held that, it was a violation of the Separations of Powers clause of the Ohio constitution for the Attorney General to reclassify offenders (registrants, they are no longer offenders) who once were classified by judicial decision.

However, the decision seems to have missed that there are different groups of registrants: A) Those who -earlier in time- were classified by judicial decision, and, B) Those who were not previously classified by judicial decision.

While there is no doubt that the "Separations of Powers" ruling applies to registrants in group "A," there is still a question as to group "B."

Originally Ohio enacted TWO statutes to authorize the reclassification, and the court invalidated both of them, but that is the problem. The court was thinking all 26,000 registrants were once judicially classified, but that was not true of group "B."

So, the essence of the question yet to be answered is, are the TWO statutes which authorize the Ohio AG to classify registrants according to the SORNA scheme in the Adam Walsh Act, invalid (or unconstitutional in some way) as they are applied to group "B" registrants?

Now we wait to hear the court's answer!

---

The motion begins like this:

In accordance with Supreme Court Practice Rules 11.2 and 14.4, the State of Ohio and the Ohio Attorney General respectfully move this Court for clarification of its June 3; 2010 decision in State v. Bodyke, 2010 Ohio Lexis 1271, 2010-Ohio-2424.

Neither the State nor the Attorney General is asking the Court to reverse its holding that two provisions in the Ohio Adam Walsh Act ("the Walsh Act"), which required the Attorney General to reclassify sex offenders who had been judicially classified under the old Megan's Law, violate the separation-of-powers doctrine. Id. at ¶¶ 60-61. Rather, the State and the Attorney General seek clarification of the Court's remedy-specifically, whether the Court facially invalidated R.C. 2950.031 and R.C. 2950.032, and thereby struck the provisions entirely, or whether the Court only invalidated those provisions as applied to sex offenders who had been judicially classified under Megan's Law.

The Attorney General's Office is moving quickly to update the State's sex-offender registry (e-SORN) to comply with the Bodyke decision. For offenders who received Megan's Law classifications by court order before the effective date of the Walsh Act, the Office will update e-SORN to reflect the original Megan's Law classifications and notify these offenders of the reclassification. Absent clarification from this Court, however, the Attorney General does not know what classifications to input for a significant segment of sex offenders who did not receive a Megan's Law classification by court order.

All parties-the State and the offenders themselves-will benefit from clarification. Such a pronouncement will ensure that the Attorney General, the county prosecutors, and the county sheriffs properly implement the Court's directive; it will provide clear notice to individual offenders as to which framework-Megan's Law or the Walsh Act-applies to them; and it will accord the Bodyke decision the finality this Court intended. For the remainder of the motion.

eAdvocate

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Court: New sex offenders may avoid registry rules

3-18-2010 Ohio:

COLUMBUS, Ohio — The Ohio Supreme Court has delivered a major setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act.

In a unanimous decision Thursday, the high court ruled sex offenders notified of their status in the most severe category after Jan. 1, 2008, may avoid the new community reporting requirements under exceptions found in Ohio's old law. That means not all newly convicted sex offenders in the most egregious category will be required to register with authorities every 90 days for the rest of their lives, as lawmakers intended.

In the majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to continue to apply. ..Source.. JULIE CARR SMYTH

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Risk status of female sex offender reduced

12-18-2009 New York:

AUBURN -- A former teacher's aid convicted of having sexual encounters with three teenage students six years ago had her sex offender status reduced in Cayuga County Court Thursday from the highest level to a level-one, meaning she is now considered to pose a low risk of re-offending.

Former Judge Peter Corning ruled in 2003 that Mary Schoonmaker, 32, was a level-three sex offender, meaning the he considered her to pose a high risk of re-offending.

On Thursday, Cayuga County Judge Thomas Leone said he believed their was substantial evidence to show that Schoonmaker no longer posed a high risk of re-offending before he reduced her classification to level-one.

"This was an isolated event in Mary's life," said defense attorney George Hildebrant. "(Sex offender registration hearings) gauge the risk to re-offend and clearly there is no risk. We consulted with experts who treat sexual offenders and they concluded the same thing."

Hildebrant also said his client was not in her normal state of mind when the illegal relationships occurred because she was going through a divorce and was under a lot of pressure at work.

Rick Luciani, a defense advocate, added that the state Board of Examiners of Sex Offenders did not oppose the reduction.

Leone said the board is made up of several experts who have more knowledge about sex offenders than he has, and that he placed great weight on any recommendation they made.

Leone added that Schoonmaker, of 1095 West Genesee St., had never been in legal trouble before, that she appeared to have her personal life in order and that the victims willingly engaged in the sexual encounters.

Cayuga County Chief Assistant District Attorney Christopher Valdina took exception to Leone's decision and said he didn't not know whether or not an appeal would be filed.

Valdina said he wanted Schoonmaker to remain registered as a level-three offender until her 10-year probation term ended before any re-classification hearings took place.

Schoonmaker was sentenced to probation with a period of homebound detention in 2003 after she pleaded guilty to two counts of second-degree rape and one count of third-degree sodomy, all felonies, for having illegal sexual relationships with three 14- and 15-year-old students.

Schoonmaker was a 25-year-old BOCES teacher's aid at the Weedsport High School at that time.

While Schoonmaker still has the felony convictions on her record, Luciani said the reclassification allows her to attend functions at her children's school.

In Cayuga County, level-three sex offenders are required to stay at least 500 feet away from schools, parks and other areas catering to children.

"When a kid is in a school pageant, looks out and sees everyone's parents except theirs, it can be hard," Luciani said. "This was for her kids, they are the ones really affected. She couldn't even drop her kids off at the school before this." ..Source.. Nate Robson / The Citizen

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OH- Lawyers fight law on sex offenders before Ohio Supreme Court

To hear and see the Oral Arguments, and access the briefs of those cases, CLICK HERE:

11-5-2009 Ohio:

housands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court yesterday that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect.

In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases yesterday challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses.

More than half of the offenders were placed in the most-serious category -- sexual predators -- who are required to register every 90 days for life.

Jeffrey M. Gamso, a Toledo lawyer who argued one of the cases, said the law had more to do with securing federal funding under the Adam Walsh Act than protecting Ohioans.

"Is the sheriff really keeping tabs on all those people?" Gamso asked in an interview. "We know that some people will re-offend, and we want to be able to target those people.

"You want to find the needle in the haystack, and what this does is build a bigger haystack."

State Sen. Timothy J. Grendell, R-Chesterland, said the law makes it easier for the public to monitor the whereabouts of registered sex offenders on the Internet and through mandatory notices to neighbors.

"The policy decision, from my perspective, was based on protecting public safety," Grendell said. "The timing was based on us being told we'd get an additional 10 percent (in Adam Walsh funding) if we did this by a certain time. We would not make public policy just to get money."

The four cases:

• Three adult sex offenders from Huron County who were classified as sexual predators under the 2007 law say it's unconstitutional to subject them to a "punitive" law that didn't exist when they were sentenced.

Gamso, who represented the men, said lawmakers can't step in and redo classifications for sex offenders that already were determined by judges.

David M. Lieberman, an assistant attorney general who represented the state, said lawmakers had no choice but to revise the state law to comply with the Adam Walsh Act.

• Roman Chojnacki, who was convicted of sex with a minor in Warren County in 2006, was reclassified from a low-risk sex offender under the old law to a medium-risk offender.

His attorney, Jason A. Macke, argued that Chojnacki and others who were reclassified should have had access to lawyers during that process.

Lieberman, who again represented the state, said defendants are entitled to legal representation only when they face the deprivation of liberty or fundamental rights such as privacy. That isn't the case here, he said.

• Darian J. Smith, who was convicted in Allen County of three counts of rape at age 14, contends that he shouldn't be subject to the same registration requirements as adult sex offenders.

Brooke M. Burns, his attorney, said studies have shown that there's a better chance of rehabilitating youthful sex offenders than adults.

Christina L. Steffan, the attorney for the Allen County prosecutor's office, said juvenile offenders are given adult legal protections -- such as the right to lawyers and a jury trial -- before their names are added to the sex-offender database.

• A juvenile sex offender known only as Adrian R. was classified as a sexual predator and must report to authorities into adulthood even though he has responded very well to treatment, said Burns, who also represented Adrian.

She said the rigid classifications "disincentivize children from doing well in treatment."

Assistant Licking County Prosecutor Alice L. Bond said the current sex-offender law allows people convicted as juveniles to petition a judge to be declassified as sex offenders in three years. ..Source.. by James Nash, THE COLUMBUS DISPATCH

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OH- Lawyers fight law on sex offenders before Ohio Supreme Court

11-4-2009 Ohio:

Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court today that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect.

In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases today challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses.

More than half of the offenders were placed in the most-serious category - sexual predators - who are required to register every 90 days for life.

Jeffrey M. Gamso, a Toledo lawyer who argued one of the cases, said the law had more to do with securing federal funding under the Adam Walsh Act than protecting Ohioans.

"Is the sheriff really keeping tabs on all those people?" Gamso asked in an interview. "We know that some people will re-offend, and we want to be able to target those people.

"You want to find the needle in the haystack, and what this does is build a bigger haystack."

State Sen. Timothy J. Grendell, R-Chesterland, said the law makes it easier for the public to monitor the whereabouts of registered sex offenders on the Internet and through mandatory notices to neighbors.

"The policy decision, from my perspective, was based on protecting public safety," Grendell said. "The timing was based on us being told we'd get an additional 10 percent (in Adam Walsh funding) if we did this by a certain time. We would not make public policy just to get money."

The four cases:

Three adult sex offenders from Huron County who were classified as sexual predators under the 2007 law say it's unconstitutional to subject them to a "punitive" law that didn't exist when they were sentenced.

Gamso, who represented the men, said lawmakers can't step in and redo classifications for sex offenders that already were determined by judges.

David M. Lieberman, an assistant attorney general who represented the state, said lawmakers had no choice but to revise the state law to comply with the Adam Walsh Act.

Roman Chojnacki, who was convicted of sex with a minor in Warren County in 2006, was reclassified from a low-risk sex offender under the old law to a medium-risk offender.

His attorney, Jason A. Macke, argued that Chojnacki and others who were reclassified should have had access to lawyers during that process.

Lieberman, who again represented the state, said defendants are entitled to legal representation only when they face the deprivation of liberty or fundamental rights such as privacy. That isn't the case here, he said.

Darian J. Smith, who was convicted in Allen County of three counts of rape at age 14, contends that he shouldn't be subject to the same registration requirements as adult sex offenders.

Brooke M. Burns, his attorney, said studies have shown that there's a better chance of rehabilitating youthful sex offenders than adults.

Christina L. Steffan, the attorney for the Allen County prosecutor's office, said juvenile offenders are given adult legal protections - such as the right to lawyers and a jury trial - before their names are added to the sex-offender database.

A juvenile sex offender known only as Adrian R. was classified as a sexual predator and must report to authorities into adulthood even though he has responded very well to treatment, said Burns, who also represented Adrian.

She said the rigid classifications "disincentivize children from doing well in treatment."

Assistant Licking County Prosecutor Alice L. Bond said the current sex-offender law allows people convicted as juveniles to petition a judge to be declassified as sex offenders in three years. ..Source.. by James Nash

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Ohio Supreme Court: Oral Arguments on SORNA Cases

11-3-2009 Ohio:

On Wednesday morning November 4th 9:00 AM, the Ohio Supreme Court will be hearing four cases that challenge the constitutionality of Senate Bill 10, Ohio's Adam Walsh Act, SORNA implementation.

Oral Arguments will begin at 9 a.m. EDT, and will stream live online. CLICK to take you to the Ohio Supreme Court website, then -on the left- look for the section that looks like the graphic above. Click on HOME.

There will be two adult cases and two juvenile cases. The adult case, Bodyke, addresses the bulk of the constitutional claims against the retroactive application of AWA. The juvenile cases address constitutional claims, but may ultimately be decided on a matter of statutory interpretation regarding juvenile courts’ discretion in the classification procedure.

More information on the cases can be found on the Office of the Ohio Public Defender's website:

Thanks to Amy Borror in the Office of the Ohio Public Defender and Alisa Klein of ATSA for this information.

eAdvocate

PS: Now, should you miss Oral Arguments, then you can go to "Video Archive" where they archive oral arguments.

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OH- Judge rules on sex offender cases

11-3-2009 Ohio:

LISBON - A local judge upheld the state's reclassification of 28 sex offenders to more stringent reporting requirements, but ruled the change for one offender was a mistake.

Judge C. Ashley Pike of Columbiana County Common Pleas Court reclassified Eugene Mathias Smith, 49, of East Liverpool as a Tier II offender instead of Tier III, which is the designation the state gave him after a new federal law increased reporting requirements for sex offenders last year.

Smith pleaded guilty to attempted corruption of a minor in November 1997 and was designated a sex offender required to report his address to the Sheriff's Office for 10 years. The registration requirement was set to end in April 2008 when Smith received notification from the state that he was now a Tier III, meaning he had to register every 90 days for the rest of his life.

He and a lot of other registered sex offenders filed lawsuits in early 2008 to challenge the constitutionality of the state's action and to petition the court for a reduction in the requirements.

The federal law increased reporting requirements for sex offenders, extending the reporting time, and placing more offenses under the reporting requirements. The law also changed the classification for some defendants who had already been sentenced, requiring them to do more or report for a longer period of time.

Both Pike and Common Pleas Court Judge David Tobin denied the constitutional issues raised, based on a similar stance by appellate courts, but they've been making decisions on challenges to the new classifications in the individual cases.

Even with Pike changing Smith's reporting requirements, he'll still end up reporting for a longer period of time. Tier II requires the offender to register every 180 days for 25 years. The reporting requirements are retroactive to when he first registered, meaning he'll still have at least 14 years to go. ..Source.. by MARY ANN GREIER

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OH- Sex offender reclass suits taxing courts

7-24-2009 Ohio:

MANSFIELD — Many of the 200-plus sex offenders who appealed their reclassifications through Richland County courts committed their offenses elsewhere.

Richland County prosecutor’s office staffers said that has put a burden on local resources.

Mansfield’s two prisons, two halfway houses and sex offender treatment facility triggered an onslaught of Adam Walsh Act reclassification cases filed here.

“Quite frankly, I take some of these (case files) home, along with the work from my private practice,” attorney Frank Ardis said.

Ordinarily, Ardis works for the prosecutor’s office part-time, offering legal advice to commissioners and other county agencies. Assistant Prosecutor Kirsten Pscholka-Gartner usually handles criminal appeals, but a caseload spike necessitated bringing in Ardis.

Sex offenders unhappy with their reclassification by the Ohio Attorney General can challenge their status in common pleas courts.

“I think there’s close to 200 (here),” Ardis said.

Starting around fall 2008, Richland County judges issued a series of rulings saying retroactive classification is unconstitutional. The prosecutor’s office appealed to the Fifth District Court of Appeals. Now appeals rulings — overturning local judges’ decisions — are making their way to Richland County.

As of this week, the appeals court returned 35 reclassification opinions across its 15-county district — 29 to Richland County. Only seven of those cases involved people convicted here.

“So if he is sent to Mansfield prison (or treatment center), he can file it in Richland County,” she said.

Fifth District Court of Appeals Administrator Melinda Cooper said Richland County sex offenders are allowed to file their objections in the county where they “reside.” Richland is the only county in the Fifth District with state prisons.

The result?

The clerk’s office last year processed 337 appeals — “a big increase for us. We generally have 115 to 125 cases a year,” Richland County Clerk of Courts Lin Frary said.

The Fifth District rulings mean common pleas court hearings determine reclassification. Ardis estimates hearings take 20 minutes to two hours.

Pscholka-Gartner said the staff saves time by using similar legal arguments and language for court filings. Still, each reclassification was filed as a separate case, resulting in time and paperwork, she said.

“Just look at how much paper we have consumed, 15 to 20 pages, multiply that by about 200,” Ardis said. “It’s one of those things that the State of Ohio has enacted a statute, and guess who gets stuck with paying for it?”

John Murphy, executive director for the Ohio Prosecuting Attorneys Association, agrees prison-related caseloads have been a financial issue.

“We have long supported the idea that the state ought to pick up the cost of some of these prosecutions. It imposes an extra burden,” Murphy said.

Scioto County Prosecutor Mark Kuhn said the presence of a state prison and a Youth Services facility have added significantly to his office’s workload. Kuhn’s office has applied for a federal economic stimulus grant to pay a portion of an assistant prosecutor’s salary to deal with those cases.

Fifth District Court Presiding Judge Sheila G. Farmer said the appeals court received about 280 reclassification appeals, and has 250 pending. That’s a significant bump in the caseload for the Canton-based appeals court, which last year heard 848 cases.

“It has been a lot of additional work for the (appeals) clerks, and a lot of additional work for us,” Farmer said. ..Source.. by LINDA MARTZ • News Journal

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IA- Sex offender classification under way

7-16-2009 Iowa:

Technology specialists are reviewing the profiles of about 5,000 Iowans on the state's sex offender registry as part of a new law that attempts to more closely monitor the most dangerous offenders.

James Saunders, assistant director for the Iowa Division of Criminal Investigation said work is well under way and could be completed in about a month. Beginning July 1, people with a sexual offense in their history were to be classified into three tiers.

Tier 3 designation is reserved for the most serious offenses. Offenders who are convicted of sex abuse in the first degree, sex abuse in the second degree or sex abuse in the third degree still must comply with the residency requirements under previous Iowa laws.

The previous "2,000-foot rule" excluded all sex offenders from living in family-sensitive areas. Critics of the policy said it drove some Iowans with convictions to lie about their whereabouts instead of complying with the law. New laws focus on where convicted offenders frequent, instead of where they sleep.

"We'll let them know if this offender would be bound by the 2,000-foot rule and exclusionary zones that are part of the new law, Saunders said. "What we always tell people, with respect to the sex offender registry Web site, is: It's a tool for them to make informed decisions about the safety and welfare of their families."

Tier 3 offenders have to avoid additional exclusionary zones that prevent loitering in areas where children are present. Arcades, libraries and public swimming pools are a few examples.

"Offenders are not going to loiter in those areas," Saunders said. "What that means, is if they are deemed to be loitering -- which is defined by the code as engaging in activity that would lead a reasonable person to believe that they're trying to identify locations or actually identify potential victims -- then they're loitering. That's going to be a problem. They're won't be able to be within 300 feet of those areas."

Offenders could still go to the state park, a little league game or a family reunion where children are present as long as they have a legitimate purpose to be there. They need permission from school principals to enter school property and to attend specific events.

Anyone age 14 and older who is convicted of sexual abuse would warrant tier 3 classification. The new law allows what's called a "Romeo and Juliet" exception, which lessens restrictions in situations where an 18-year-old had consensual sex with a 16-year-old.

"They won't be bound by that 2,000-foot rule," Saunders said.

Murder, manslaughter, burglaries, attempted burglaries and assaults with the intent to commit sexual abuse also warrant tier 3 status.

A conviction for criminal transmission of HIV is tier 3. Anyone with a tier 2 conviction who commits a second tier 2 offense would be elevated to tier 3. They must report to a sheriff, in person, every three months.

Crimes that warrant a more moderate tier 2 designation include lascivious acts with a child or an in-person attempt to lure a minor into sexual contact. False imprisonment or the transport of a minor by a non-parent for sexual activity also falls into tier 2.

People convicted of incest or creating child pornography will be placed in tier 2. So would counselors, therapists or school employees who have sexual contact with children 13 and under.

Offenders with tier 2 designation must check in with the relevant county sheriffs every six months. A person who has a tier 1 conviction, then re-offends, would be moved up a classification.

Under the new regulations, tier 1 offenders would update information with their county sheriff or sheriffs annually.

It is designated for the least serious sex offenses. Examples include indecent exposure and making pornography available to minors. Anyone who used their computer to mislead a minor for sexual conduct with a false identity would also fall into tier 1.

Some sexually-motivated forms of stalking or harassment could also warrant tier 1 registry status.

Minors age 13 and under who are convicted of second-degree or third-degree sexual assault would also receive tier 1 designation.

"It's pretty specific in the code as to what tiers an offender would fall in based on what they are convicted of," Saunders said. "What we're doing currently is going through all of those records -- roughly 5,000 offenders -- and we're in the process of putting them in their appropriate tiers."

Under another change, an offender has five days to report and register in the county of jurisdiction if they are working in a county that's different than where they reside.

Likewise, offenders who live in Clay County, but go to school outside of the county, would also have to register in both counties.

"If you have an offender who is registered in Clay County, but they've got a job up in Dickinson County, they're now going to have to also register with the Dickinson County Sheriff's Office because they are now employed in Dickinson County," Saunders said.

Sex offenders would be prohibited from specific kinds of employment if the victim was a minor including jobs at fairs, schools, arcades, or carnivals. No volunteer activities involving youth would be allowed.

If the sheriff's office feels an offender should report more frequently, the law allows the sheriff's office to require that offender to report more frequently, Saunders said, of another change.

"We're working through that process now," Saunders said. "We're getting all of the offenders in their appropriate tiers and then we'll make notification to those offenders, with respect to what their requirements are. Worst case scenario, those that are in the tier 3 category -- they won't be required to do their first quarterly report until September. But we're hoping to get that done in the next 30 days, and then let them know." ..Source.. by Russ Mitchell, Daily Reporter Staff

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OH- Judge hears first sex offender to offer challenge

7-5-2009 Ohio:

LISBON - The first sex offender to challenge new classification requirements last year finally had his case heard by a judge, who said he should be designated Tier I, the level with the least requirements.

Brendan McClaskey, who lived in the Salem when he filed his case, received notification from the state in December 2007 that he was being reclassified as a sexual oriented offender and that his reporting requirements were being extended beyond the time of his original classification.

According to the document, he was convicted of corruption of a minor and attempt to corrupt a minor in Erie County, Ohio. The notification from the Ohio Attorney General said the offense under the law was unlawful sexual conduct with a minor.

In a recent entry filed by Judge David Tobin of Columbiana County Common Pleas Court, he found the McClaskey didn't actually get served with a letter from the state designating his Tier level, but he felt he should be designated Tier I, which means he has to register once a year for 15 years.

If he wants to contest that, Tobin said he could do than in the county of his residence.

In another case, Tobin ruled that the new registration requirement didn't apply to Randall Culler Jr., 29, of East Palestine, in the manner specified by the state. He was reclassified by the Ohio Attorney General as a Tier III sexual offender, meaning he would have to register his address every 90 days for the rest of his life and the community would have to be notified.

Tobin disagreed and said he should have been designated Tier I considering the facts of his case. He was convicted of sexual battery involving an adult female victim.

Besides Tier I and Tier III, there is the classification of Tier II, which requires an offender to register twice a year, every 180 days, for 25 years, with no community notification required. ..Source.. by MARY ANN GREIER, Staff Writer

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OH- Sex offender wins challenge of new law

6-19-2009 Ohio:

LISBON - A sex offender who challenged a reclassification requiring him to register his address for the rest of his life won a new classification requiring less registration time.

Billy Brown, 47, of 10601 Endley Road, Lisbon, filed his petition contesting his new sex offender registration level on Dec. 31, 2007, just before a new law took effect with stricter registration rules.

Based on a ruling by Common Pleas Court Judge David Tobin this week, Brown will register twice a year for 25 years instead of every 90 days for life.

Brown was one of many sex offenders living in Columbiana County who challenged the constitutionality of the changes, specifically the ability of the state to reclassify offenders who had already been classified and make the new requirements retroactive.

The civil cases filed in Common Pleas Court had been on hold for over a year while the judges waited to see what happened with a federal case and some appellate cases. Just recently, they've been making rulings, with both Tobin and Judge C. Ashley Pike ruling against the constitutional challenges, in line with what higher courts decided.

Tobin, however, has been giving the offenders their day in court, including Brown, who appeared on his own behalf Tuesday. No one appeared on behalf of the state.

Brown pleaded guilty to two counts of criminal sexual conduct in Macomb County Circuit Court in Michigan in April 2000 and was ordered to prison for 16 to 24 months. Under the registration rules at the time, he was ordered to register his place of residence for 10 years. He was released from prison in January 2002 and had registered for six years without incident.

In November 2007, he received notification from the Ohio Attorney General's Office that he was reclassified as a Tier III sex offender, which is the most stringent of the three classifications. The new classification required him to register with the local sheriff's office every 90 days for the rest of his life and made him subject to community notification, meaning the sheriff's office had to notify neighbors within 1,000 feet that he was living in their neighborhood.

Tobin had already ruled on the constitutionality of the new law, but at issue now was how the new law was applied to Brown.

According to Tobin, the charge against Brown dealt with sexual contact and was a misdemeanor under Michigan law, with the charge similar to gross sexual imposition in Ohio, which is a third-degree felony.

He noted that gross sexual imposition falls under Tier II sexual offenses, writing that "consequently, the attorney general has misclassified this defendant."

He found that Brown had proven the new requirements "...do not apply to him in the manner specified in the letter sent to him."

He reclassified him as a Tier II sexual offender, requiring registration for 25 years, but requiring no community notification. ..Source.. by MARY ANN GREIER

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MA- Court says re-evaluate sex offender’s risk

Obviously this court has not heard of the Adam Walsh Act because under that law the ONLY thing that is used to determine risk level is, the state crime code. AWA does not consider anything else its purpose is to make the registrant as dangerous as possible and have the public IGNORE everything that both the State and the registrant has done since the crime. I guess this says, Massachusetts is the real SMART one and Congress, well there's dumb or dumber, chose one!

6-8-2009 Massachusetts:

BOSTON — The Massachusetts Appeals Court has ruled the state must weigh the entirety of a sex offender’s life, including what role alcohol might have played in the original crime, when determining if he must register as an offender for life.

The case involves a man convicted of assault with intent to rape in 1984 after leaving a Quincy bar. Since then the man, not identified in court papers, has given up drinking and stayed out of trouble.

The Sex Offender Registry Board argued the man should be required continue to register with police as a Level 1 sex offender, but the man argued he no longer poses a risk.

The court ordered the board to reconsider its decision, taking into account the man’s life since his arrest, before determining that he is still a risk.

If the board again concludes the man presents an ongoing risk to commit another sex offense, it must show what facts support that conclusion, the court said.

The mere fact of the original offense is not enough to require the man to continue to register more than two decades later, according to court.

The court said the board should consider a number of factors before making its decision, including the man’s past troubles with alcohol and his efforts to turn his life around, before determining if he presents an ongoing risk, the court said.


“These include, for example, the role alcohol may have played in the offense (and Doe’s subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe’s twenty-five year old crime,” the court ruled.

Ultimately, the sex offender board must show that the man presents a “cognizable risk of re-offense,” not merely a “hypothetical or speculative potential risk,” the court said.

If the board determines the man has a low risk of re-offense, and therefore should be required to register, it must define what “low” means and show some evidence to back up that finding.

“The term ’low’ must be given a reasonable interpretation; it should not be taken to mean ‘anything more than no,’ ” the court said.

The decision further chips away at the state’s 1999 sex offender law, which requires anyone convicted of a sex crime to register with police for the rest of their lives.

The Supreme Judicial Court last year ruled that low-level sex offenders convicted before the law was enacted have the right to a hearing to show they are no longer dangerous. That ruling came in the case of a man convicted of rape in 1979. He served two years of probation and committed no other crimes. In 2003 he was told he must register as a level one sex offender every year for the rest of his life.

The court found applying the law retroactively to a man whose crime occurred two decades earlier violated his constitutional rights.

The lawyer for the man in the most recent case, Elizabeth Caddick, says the Appeals Court decision goes a step further by giving Sex Offender Registry Board hearing officers discretion when deciding if someone must continue registering.

“The court is saying now that hearing officers can ignore the law and follow the state Constitution,” Caddick said.

The crime occurred July 2, 1984 after the man left the bar and began following a woman he did not know.

After she turned down his offer to walk her home, the man pushed her into some bushes, tried to kiss her as she struggled, slapped her several times, pinned her down and reached under her shirt and tore her bra. The woman was able to free herself and passers-by alerted police.

The man pleaded guilty to assault with intent to rape and indecent assault and battery and was sentenced to a year in jail.

After the assault, according to court papers, the man attended a detoxification program and has not had a drink for more than two decades. The man has worked as a pressman for a Massachusetts newspaper since 1983 and has maintained good relationships with his children. ..Source.. by Steve LeBlanc

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OH- Judge denies part of sex-abusers’ appeals

6-4-2009 Ohio:

LISBON — Judge C. Ashley Pike of Columbiana County Common Pleas Court has denied part of 31 cases filed by sex abusers over their classifications that say how long they must report to authorities.

The law, which went into effect Jan. 1, 2008, increased the length of time convicted sex offenders must register their names and addresses with law enforcement agencies.

The offenders in Columbiana County mostly filed appeals as civil cases, but at least two filed under criminal cases dating to 1996 and 1999.

Judge Pike wrote that the classification is based on the specific crime that was committed.

Each tier of offenders classified under the federal Adam Walsh Law had a specific residency verification requirement and length of required reporting. Walsh was a 6-year-old Florida boy who was abducted and killed in 1981.

Judge Pike ruled the current issue is a civil one, so the offenders cannot ask for appointed lawyers.

The various legal challenges, he wrote, were addressed by seven separate legal rulings.

“The weight of the law in Ohio is therefore against the petitioners’ position on each of the constitutional issues,” he added.

Offenders who want to challenge the law on any other basis, however, have 21 days to ask for a hearing.

If no motion is filed, Judge Pike said he would issue a decision in the form of a final order that could be appealed. That would allow the county sheriff’s department to enforce the Walsh law. ..Source.. by Staff

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RI- R.I. Supreme Court rejects sex offender’s risk challenge

Important to note, this decision pertains ONLY to Thopmas Germane. Within the court's decision is this comment "For the reasons set forth below, it is our view that a portion of chapter 37.1 of title 11, in some instances, could be irreconcilable with the constitutionally protected right to procedural due process. Nevertheless, in view of what actually transpired in this case, it is clear to us that Mr. Germane himself was not in fact deprived of that, or any other, constitutional right (Page 4)." Accordingly, others need to search for that "irreconcilable constitutionally protected right to procedural due process" and maybe win their case. Further, it is unknown whether RI has yet incorporated the Adam Walsh Act's (AWA) classification system. If so, the RI may be pointing to a hole in AWA.

6-2-2009 Rhode Island:

PROVIDENCE — The Rhode Island Supreme Court (State -v- Thomas Germane)on Tuesday rejected a convicted sex offender’s challenge of his classification by the state as presenting the highest risk of committing such crimes again.

The state classifies offenders at three levels. Level III, for those considered posing the highest risk, requires a broad range of notifications to the public about the offender’s whereabouts after release from prison. Level II requires a narrower range of notifications, and Level I requires none.

Several years ago, a state review panel assigned a Level III classification to Thomas Germane, who had been convicted of several sexual assaults on adult women. Germane appealed that classification to the Superior Court, which after a hearing upheld the classification.

Germane, in appealing that ruling to the Supreme Court, contended among other things that he had not been afforded a thorough hearing before the lower court.

But the high court concluded that Germane “was afforded adequate due process.”

The court acknowledged that the state law governing such appeal hearings contained the potential for violating an offender’s constitutional rights. One provision, it said, grants the Superior Court the authority to limit testimony and cross examination in hearing appeals by offenders — and thus the appellant’s right to a “meaningful hearing.”

But, it said, this did not happen in Germane’s case.

In the same ruling, the Supreme Court criticized the state Sex Offender Board of Review for the sparse documentation of its decision classifying Germane as a Level III offender.

Still, the court said a “careful reading” shows the review board “did, at a basic level, consider all the factors” required in guidelines for determining an offender’s risk of committing such crimes again.

It noted that the board of review did not have the most up-to-date evaluations of Germane and included a statement by the victim of an assault for which Germane had not been charged.

The Superior Court, it said, “cured these deficiencies” by allowing Germane to introduce evidence that contested the review board’s conclusions. ..Source.. by Michael P. McKinney, Journal Staff Writer

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OH- Mansfield sex offender loses reclass appeal

Unbelievable, now every sentence handed out in any criminal matter can be modified LEGALLY (errrr, according to this court) claiming, the modification is to prevent future offenses. Humm, that doesn't change the fact that the sentence is being modified, and that is precisely what ex post facto clauses are supposed to prevent.

5-8-2009 Ohio:

MANSFIELD — The Fifth District Court of Appeals in Canton has ruled a change in state law reclassifying convicted sex offenders retroactively doesn’t violate the Ohio Constitution.

The April 27 decision means Mansfield resident William Sigler, 30, will continue to be labeled the most serious of sex offenders. Sigler must register with the sheriff’s office in the county where he lives every 90 days for the rest of his life.

“It’s definitely disappointing,” said Sigler when contacted Thursday. “It’s been a very discouraging roller coaster ride and I still feel it is further punishment.”

Sigler pleaded guilty to attempted rape as part of a plea bargain in May 2000 and was sentenced to six years in prison. He was also designated a Tier I sexually-oriented offender, the least serious classification, which required him to register with the sheriff’s office once a year for 10 years.

In December 2007, the Ohio Attorney General’s office notified Sigler he was being reclassified as a Tier III sexual predator, the most serious category. The change was a ripple effect of the federal Adam Walsh Act. Sigler filed a civil lawsuit seeking to have the change declared unconstitutional because it violated prohibitions against laws that take effect retroactively, his plea bargain contract, and due process rights.

Last August, Richland County Common Pleas Court Judge James DeWeese ruled it was appropriate to use the new classifications for people convicted in new cases but unconstitutional in cases already decided because it retroactively changed the sentences. DeWeese also said the reclassification imposed new, additional burdens on Sigler and changed the terms of his plea bargain.

The Ohio Attorney General’s office appealed the ruling and the appeals court upheld the challenge. The three-judge panel said the new laws don’t violate constitutional clauses because they are intended as a deterrent against future offenses, not as punishment.

Sigler considered the previous classification system as more fair, he said, because it was based on an evaluation of whether the person was likely to be a repeat offender.

Sarah Schregardus, an attorney with the Ohio Public Defender’s Office who represented Sigler on appeal, was not surprised by the decision because it was consistent with those of other Ohio courts of appeal on the issue. She said she plans to file a notice of appeal with the Ohio Supreme Court within the required 45 days and will ask for a stay of the new classification and registration requirements.

Schregardus called DeWeese’s decision a “common sense opinion” because it went against what she felt was bad case law. She hoped the state’s high court would take the case, noting it already has accepted several others involving the Adam Walsh Act.

“The General Assembly expressly stated its intent that these measures would be non-punitive and would be meant to serve the non-criminal purposes of abiding law enforcement, providing helpful information to the public, and protecting the public,” the court said in its ruling.

The District Court said it couldn’t rule on the plea bargain aspect because a copy of the agreement was not part of the record.

DeWeese said Sigler will have to follow the new registration requirements, at least for now, because the Appeals Court did not turn the case back to him for further action. He also said he was surprised the court ruled there was no enhanced penalty, even though the reporting requirements were more severe and the new law put fully half of convicted sex offenders under the most severe classification.

“I just did the best I could on what I thought was an extra punishment, but they spoke last,” DeWeese said.

Richland County Assistant Prosecutor Kirsten Gartner declined to comment because the latest ruling will probably be heard by the Ohio Supreme Court. She said final disposition of Sigler’s case will be up to DeWeese pending any further appeal. ..News Source.. by Al Lawrence • News Journal correspondent

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OH- Appeals court upholds sex offender registration law

Hummm, see my revised comments below. It is critical to find your issues then find case law to support them before going into court. What may be applicable to one offender may not be applicable to another, so the facts must support the issues presented.

4-21-2009 Ohio:

AKRON — The 9th District Court of Appeals yesterday upheld a state sex offender registration and notification law that is being challenged by four Lorain County men.

The men argued the Adam Walsh Act is unconstitutional as applied retroactively to those who were first classified under an earlier version of the law.

The new law, which took affect last year, automatically classifies offenders in one of three tiers by their crime without considering the likelihood of whether they would reoffend. The law applies retroactively to offenders, many of whom were nearly finished with their reporting requirements under the old law.

Ruling on a lawsuit from Ronald Brooks, Abraham Bowen, Jeffrey York and Steve Keller, a visiting judge deemed that the law's residency restrictions — prohibiting offenders from living within 1,000 feet of a school — are unconstitutional. The Lorain County prosecutor's office appealed the ruling and the men's attorney cross-appealed, looking to deem the entire law unconstitutional.

The 9th District court sided with prosecutors, stating the men could not challenge the residency restrictions because they were not affected by them, as their homes were not located within 1,000 feet of a school. The court's ruling also stated sexual offenders only have a case if they can show they were deprived of a protected liberty or property interest as a result of the registration requirement, which they had not done.

Revised Comment: Apparently none of the Plaintiffs in this case ever resided in a proscribed area, nor have they alleged to wish to do in the future. Accordingly, they have no standing to make this claim.

The 9th District cited Ohio Supreme Court decisions that stated felons have no right to expect their conduct will not thereafter be made the subject of legislation.

The above comment by the journalist seems to be misplaced as the issue was "Due Process" see the following:

{¶17} In order to trigger the protection of the Due Process Clauses of the federal and state constitutions, “a sexual offender must show that he was deprived of a protected liberty or property interest as a result of the registration requirement.” State v. Hayden, 96 Ohio St. 3d
211, 2002-Ohio-4169, at ¶6.

And it appears that, in the lower court the lawyer never showed how these plaintiffs were denied any right, privilege or property interest to trigger the due process clause. And again, apparently in the lower court the lawyer failed to compare the old Ohio system of classification to the new system of classification, where in the old system there were court hearings and an appellate process, all non existent in the new system of classification. This comes down to case preparation in the lower court to frame the groundwork for later appeal.

Attorney Jack Bradley, who represents the men, said he will review the decision and decide if they have a right to appeal to the high court, which he does not believe has made a final ruling on the Adam Walsh Act. Bradley, who represents about 50 offenders who are challenging the law, said their case could possibly be consolidated with other similar cases. ..News Source.. by JEFF GREEN

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