f/k/a archives . . . real opinions & real haiku

October 7, 2007

Ohio high court to hear sex offender retroactivity case this week

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 10:17 pm

This Wednesday (October 10, 2007), the eyes of America’s “sex offender stakeholder community” will be turned to the Ohio Supreme Court, when it hears oral argument in the case of Francis Hyle, Green Township Law Director, et al. v. Gerry R. Porter, Jr. (Case No. 2006-2187, pleadings and orders). The Porter case, on appeal from the 1st District Court of Appeals in Cincinnati (Hyle v. Porter, 170 Ohio App.3d 710, 2006-Ohio-5454), will decide whether Ohio’s residency restrictions on sex offenders can be applied to a felon whose crime occurred prior to the law‘s effective date in 2003. (via Sentencing Law and Policy, Oct. 7, 2007; and Cleveland Law Library Weblog) Five weeks ago, in Mikaloff v. Walsh, a federal district court blocked retroactive application of that very statute (see our prior post).

As reported in today’s Columbus Dispatch:

“Cincinnati sex offender Gerry R. Porter Jr. . . . was forced to move from the home that he has owned since 1991 because it is 983 feet from St. Jude Elementary School. He, his wife and two sons moved into a rented apartment in October 2005. Someone burned down the house they owned on Easter Sunday of 2006 (no one has been charged), and they plan to rebuild and move back if permitted.

“Porter committed his crimes at his home before the law took effect.”

The article’s title captures the situation quite well: “Sex-offender ghettos: Get-tough laws force predators to move but do little to make kids safer” (Oct. 7, 2007). The lengthy and informative piece in the Sunday Dispatch supplies details and arguments similar to those you’ve seen in a series of posts here at f/k/a, since last June, when we started voicing opposition to the sex offender residency restrictions passed by the “PanderPols” who make up the Schenectady County [NY] Legislature. [See, e.g., our discussion of NYCLU’s position, and the links collected at the foot of the our original post.]

The beetle I righted
flies straight into
a cobweb

…………………………….. by George Swede – Almost Unseen (2000)

The Ohio high court will be settling a split within the state’s lower appellate courts on the retroactivity issue. [See Nasal v. Dover, 2006-Ohio-5584 (Court of Appeals for Miami County, Oct. 20, 2006), which would not enforce the law.] According to Porter’s lawyer, David A. Singleton, executive director of the Ohio Justice and Policy Center, it “is a landmark case, however it turns out.” In its decision requiring Porter to move, the 1st District Court of Appeals blithely brushed aside his constitutional claims, stating in Hyle v. Porter:

  • “We hold that the rule is not so penal in effect as to eviscerate the legislature’s nonpunitive purpose and that it therefore does not violate the constitutional prohibition against ex post facto laws.” And
  • “This case does not concern a total divestiture of Porter’s property rights. As we have already said, the rule prohibits an offender from residing within 1,000 feet of a school. But it does not prohibit an offender from owning, renting, or leasing property within the 1,000-foot zone. Thus the rule is remedial and does not offend Ohio’s constitutional prohibition against retroactive laws.”

We believe that the courts that have ruled against retroactivity have the better argument. And, Porter has received support from a broad array of friends of the court. The amicus brief submitted by the Rosenthal Institute for Justice at the University of Cincinnati College of Law, along with the Iowa County Attorneys Association, Iowa Coalition Against Sexual Assault, Iowa State Sheriffs & Deputies Associaton, and the Jacob Wetterling Foundation, has the following Conclusion:

“Residence restrictions do not decrease the risk of recidivism among sex offenders, nor do they promote the safety of the children of Ohio. Such restrictions undermine public safety goals by isolating offenders from their support networks and their treatment providers. They have the collateral effect of limiting offenders’ access to housing and secure property rights. In addition, such restrictions create a false sense of security by suggesting that recidivism can be reduced by limiting an offender’s residential proximity to his/her potential victims, despite the fact that studies of such recidivists indicate no correlation exists between residential proximity and risk of re-offense. In fact, such restrictions in at least one state have been shown to reduce the ability of law enforcement officials to track sexual offenders. Finally, such restrictions place an undue burden on law enforcement agents and prosecutors by requiring enforcement of laws which fail to meet their articulated policy goals.

“Each of the amici that join this brief seeks to reduce and prevent sexual crimes against children. While we applaud the goals of the Ohio legislature in seeking to address this issue, we also recognize that the issue of sexual harm is complex and is unlikely to be remedied by laws which are overly restrictive and attempt to remedy the problein with little consideration to the continuum of offenders who commit this type of crime. We urge this Court to strike down this law which does nothing to protect the children of Ohio and instead merely leeches away valuable resources.”

As Jill S. Levenson, a professor at Lynn University in Boca Raton, Fla., told the Columbus Dispatch: “Rather than impose blanket restrictions, it’s better to identify sex offenders by risk level, appropriately restrict them on a case-by-case basis and provide more treatment and supervision.”

smoking out mosquitoes–
soon the fireflies
are gone too
…………………….. by Kobayashi Issa, translated by David G. Lanoue

It’s sad that, despite excellent exposition in many local newspapers (see this post, that one, and that, for example), so many politicians have ignored the problems created by such residency restrictions. Let’s hope the Ohio Supreme Court gives a strong, clear message to law-makers in every state who continue to support or propose residency restrictions as a solution to the sex offender problem — and who need a bit of judicial cover before they do the right thing. f/k/a will continue to follow this important issue.

the nightingale
resigned to his fate…
voice in a cage

a wife, a child…
foretelling my fate?
blossoms scatter too

……………………………………… by Kobayashi Issa, translated by David G. Lanoue

2 Comments

  1. David:

    Great George Swede, three beautiful Issas …

    thanks,
    Don at Lilliput Review

    Comment by Don — October 8, 2007 @ 3:10 pm

  2. I was convicted in 1995, and served 8 years for rape of an adult woman. Since my release i’ve went to college and landed a nice job. I am married and have 3 kids. My wife and I would like to buy a house, but most of the houses we find are within 1000 feet of a school. It is almost impossible to find a home that does not fall within a 1000 feet of a school. I never harmed a child and i’m considered a sexually oriented offender. I been registering for 5 years. One other fact, my current home does fall within 1000 feet of a school, but my wife bought the home in 2001 and i came home in October of 2003. I hope the supreme court does not make me move. We own our home and i was convicted in 1995. This rule should not affect me, i never touched a child.

    Comment by Anonymous — October 16, 2007 @ 12:45 pm

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