Thursday, October 2, 2008

OH - Supreme Court: Changes to sex offender law apply after the fact

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With this Court's reasoning, I believe that if someone passed a law that said "it's OK to shoot the offender", the law would not be considered punishment for the Offender, but is a regulation to help 'protect the children'. Insane!  This is a direct violation of the constitution and ex post facto.

What is Ex Post Facto: (See here for more, Constitution)
An ex post facto law (from the Latin for "after the fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.


KEITH ARNOLD, Daily Reporter Staff Writer

Amendments to Ohio's sex offender registration and reporting law in 2003 do not violate U.S. and state constitutional prohibitions of ex post facto laws, the Supreme Court of Ohio ruled Wednesday.

As a result, sex offenders, such as the Cleveland man at the center of this case - Andrew Ferguson, convicted of a related crime before enactment of Senate Bill 5 - must register with local law enforcement and are subject community disclosure just as their counterparts convicted after the bill's enactment.

A 4-3 majority found that each of the changes imposed by SB 5 reflected the same intent to protect the public and prevent future sex crimes as the earlier version of the statute, R.C. Chapter 2950.

"After review of the General Assembly's findings and its clear reaffirmation of an intent to protect the public from sex offenders, we are not persuaded that eliminating the provision that permitted removal of the predator classification was driven by a punitive or retributive intent," Justice Maureen O'Connor wrote for the court majority.

"To the contrary, we believe that the legislature did so in an effort to better protect the public from the risk of recidivist offenders by maintaining the predator classification so that the public had notice of the offender's past conduct - conduct that arguably is indicative of future risk." she stated.

"Similarly, we believe that the General Assembly's findings also support the conclusion that the more burdensome registration requirements and the collection and dissemination of additional information about the offender as part of the statute's community notification provisions was not borne of a desire to punish.

"Rather, we determine that the legislative history supports a finding that it is a remedial, regulatory scheme designed to protect the public rather than to punish the offender - a result reached by many other courts," O'Conner wrote.

The court indicated by footnote in Wednesday's decision that the changes enacted by the 2003 amendments have themselves been superseded by passage and enactment this year of SB 10, the Adam Walsh Act.

Ferguson's lawyer, Cuyahoga County Assistant Public Defender Cullen Sweeney, said Wednesday the changes to the statute are on a continuum.

"Now, the question is whether the Adam Welsh Act has taken it further," he said, speaking of what he characterized as the punitive nature of the 2003 amendments.

He explained to justices during arguments in May that community notification has the potential for being punitive depending upon the measures a county sheriff takes to notify neighbors of a convicted sex offender. Sweeney suggested making the information available to residents online seemed more remedial than a sheriff's deputy physically visiting each home in a neighborhood pointing out the individual to his neighbors.

"Ferguson may be negatively impacted by the amended provisions, just as he was burdened by the former provisions," O'Connor continued. "But 'the sting of public censure does not revert a remedial statute into a punitive one.' ... Ohio retroactivity analysis does not prohibit all increased burdens, it prohibits only increased punishment.

"... Thus, notwithstanding ... the amended provisions of R.C. Chapter 2950, we do not conclude that the amended statute violates the retroactivity clause of the Ohio Constitution."

Justice Judith Ann Lanzinger, in a dissenting opinion joined by justices Paul Pfeifer and Evelyn Lundberg Stratton, noted that specific provisions maintaining a remedial nature of a 1996 version of the sex offender statute were either removed or substantially altered by SB 5.

"While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders," she quoted from her partial dissent in a 2007 decision, State v. Wilson.

"All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all.

"The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the (State v. Cook) court recognized. ... Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender's actions."

Sweeney noted the minority dissent "essentially agreed" with the argument he had made.

"Obviously, we're disappointed by the court's decision, and we're considering what to do with Mr. Ferguson's case," he added.

The Cuyahoga County Prosecutor's office did not respond to a phone inquiry seeking comment by press time.

Ferguson was convicted of rape in 1990 and sentenced to a prison term of 15 to 25 years. He remains incarcerated, according to a summary provided by the court. The Ohio General Assembly adopted legislation - House Bill 180, widely referred to as Megan's Law - in 1996. It required the classification of all future sexual offenders, and of all offenders currently serving prison terms for prior sexual offenses, into one of three categories, imposing varying post-release registration and community notification requirements.

The court's decision in Cook (1998) held that the registration and community notification requirements were not constitutionally barred as ex post facto provisions because their primary intent and effect was regulatory rather than punitive.

Effective 2003, SB 5, expanded the 1996 registration and community notification requirements, prohibiting any registered sexual offender from establishing a residence or occupying a home within 1,000 feet of a school, the summary continued.

Ferguson's classification hearing in Cuyahoga County Court of Common Pleas in 2006 characterized the man as a sexual predator and he was ordered to comply with the most restrictive requirements set forth in the post-2003 version of the statute.

He appealed the action on the grounds the trial court erred in requiring him to comply with the post-SB 5 version of the law because the amendments adopted in 2003 were unconstitutional ex post facto provisions that increased the punishment for his pre-2003 conviction.

The 8th District affirmed the classification. The Supreme Court agreed in 2007 to review the appellate ruling before it issued its decision February in Hyle v. Porter, in which justices determined there was "no clear declaration of retroactivity" in the state law stipulating residency requirements for sex offenders.

O'Connor was joined in the majority by Chief Justice Thomas Moyer and fellow justices Terrence O'Donnell and Robert Cupp.

The case is cited as State v. Ferguson, Slip Opinion No. 2008-Ohio-4824.

Copyright 2008, The Daily Reporter, 580 S. High St., Columbus, OH.

EDITORIAL: Reformed Sex Offenders Deserve Equal Opportunity

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PCC has received much scrutiny since the Courier first reported that former PCC football player Darryl Stephens was arrested on a charge of assault on Sept. 2.

Subsequently, coach Kenny Lawler was put on administrative leave, and is now under investigation, bringing the issue of accountability to light.

Stephens' history as a registered sex offender, who is accused of violating his parole, raised an inevitable question: Why was he allowed to play as a Lancer?

The question turns on whether any registered sex offender should be allowed the same privileges as students without a criminal record.

We believe the answer can be found in something coach Lawler said in an interview:

"[Stephens] was a student athlete trying to rebuild and rehabilitate his life, and football was a part of that," he said.

Such a depiction could easily fit many people who attend community college - simply tag a different career to the end.

In that light, anyone who looks to readapt into society through his or her education, even registered sex offenders, deserves support.

Even more so when they have served a sentence and thus paid their debt to society, like Stephens.

What purpose does a community college serve if not for someone to restructure their life?

Under our current correctional system, people like Stephens are marked for life under Meagan's Law, severely limiting their choice in career.

Why continually punish someone who is seemingly getting his or her life together?

In a prepared statement by PCC officials, they stated that, "[PCC] does not condone the recruitment of players who have a record of sexual offenses."

If that were true, why did it take Stephens' arrest, numerous phone calls and stringent media coverage for the campus to take a stance?

ABC 7 News had a broadcast report - albeit the Courier was not properly sourced - from PCC featuring students' response when told there was a registered sex offender on campus - the typical one being shock and horror.

Such reactionary and emotional responses are what we would expect from someone who does not know all the facts.

Before that fateful day, Stephens was like any other student (except for the GPS ankle bracelet) who was given a chance to play football; who is to say he will not go on to have a successful career?

Trust the system and let students (sex offender or not) enter our facilities and make a life for him or her self.

NJ - Decision on Dover sex-offender ordinance may come in November

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DOVER — A judge has taken under advisement a registered sex offender's motion to dismiss the city's sex offender ordinance and rule it unconstitutional.

A decision on the matter may not come until November, City Attorney Allan Krans said after the hearing Wednesday afternoon.

The ordinance — Dover City Code, 131-20 — prohibits registered sex offenders from residing within 2,500 feet of a school or day care center. The ordinance was challenged earlier this year by the New Hampshire Civil Liberties Union, which filed a motion to dismiss the ordinance on behalf of registered sex offender Richard Jennings.

During a five-hour hearing at Dover District Court, NHCLU Attorney Barbara Keshen presented the case why ordinances such as the one enacted in Dover don't work. City officials presented why they believe the ordinance has made the Garrison City safer.

The city used six witnesses while Keshen presented just one, Carolyn Lucet, a licensed social worker with experience treating sex offenders. She testified on how these ordinances can sometimes make the situation worse.

"Our expert indicated that she has read all the studies that have come down the pike on these issues and not one study supports these restrictions or indicate they prevent crime," Keshen said. "In fact, there's a good deal of evidence that these ordinances make the community unsafe for children because it destabilizes sex offenders."

That happens because the ordinances can force the offenders underground and sometimes separate them from their loved ones — like what happened with Jennings, Keshen said.

The city presented evidence to show the opposite can happen, as detectives from the Dover Police Department presented statistics that showed a reduction in registered sex offenders and sex assaults in the city, Krans said.

"We presented a case that demonstrated to the court that the City Council enacted the ordinance within its authority and in a rational and reasonable way with a narrow but effective approach to protecting children in Dover," he said.

Former Police Chief William Fenniman and former City Councilor Matt Mayberry also testified on the city's behalf about the origins of the ordinance and why it's effective.

Mayberry proposed the ordinance in 2005 after seeing first-hand in his job as a real estate agent how many sex offenders lived near schools. Fenniman helped him develop the ordinance.

The city also presented two witnesses from the Planning Office to present exhibits of the ordinance map, Krans said.

"We think we got a full and fair hearing, and we feel confident a judge will thoroughly review the case and come up with a decision that's favorable to us," he said.

Keshen, confident she presented a good case, said she believes the ordinance will be ruled unconstitutional.

"I continue to feel this ordinance is unlawful for a variety of reasons and that it doesn't actually achieve what the council hoped to achieve," she said.

When the ordinance was enacted there were 35 sex offenders in the city. Now there are 17.

"What happened to those 18 people?" Keshen asked. "Did they go underground or did they go to neighboring towns? If they (sex offenders) are such a burden like the city claims, why should Rochester, Somersworth and Portsmouth absorb more than their share?"

Both sides have until Oct. 20 to file any new legal briefs and, after that, Judge Mark Weaver said it might take 30 days to render a decision, according to Krans.

Still, it's likely the case will end up in the Supreme Court, as both parties have said they would appeal the decision if they lost.

Jennings, 41, was charged with violating the ordinance in November 2007 after being charged with felony-level failure to register as a sexual offender for not notifying police that he moved from Portsmouth to 175 Locust St. in Dover to live with his fiancee.

Police also charged him with the ordinance violation since 175 Locust St. is located about 1,200 feet from My School Kindergarten at 118 Locust St.

Jennings was convicted in May 2000 on a charge of felonious sexual assault on a minor. Since the victim was 15 at the time of the offense, Jennings is required to register as a sex offender for life.

He was arrested again in April for living at the Locust Street address and still not registering with city police. Jennings had claimed he was living with his parents in Epping, but several neighbors tipped police off about Jennings still living at the address, which led to police performing surveillance in the area.

He recently finished serving a six-month jail sentence for the April charge.

In July, similar ordinances were struck down in New Jersey on the grounds they were pre-empted by state law.

John F. Kennedy - On Civil Rights (June 11, 1963)

Good evening my fellow citizens:

This afternoon, following a series of threats and defiant statements, the presence of Alabama National Guardsmen was required on the University of Alabama to carry out the final and unequivocal order of the United States District Court of the Northern District of Alabama. That order called for the admission of two clearly qualified young Alabama r More..esidents who happened to have been born Negro.

That they were admitted peacefully on the campus is due in good measure to the conduct of the students of the University of Alabama, who met their responsibilities in a constructive way.

I hope that every American, regardless of where he lives, will stop and examine his conscience about this and other related incidents. This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened.

Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. And when Americans are sent to Viet-Nam or West Berlin, we do not ask for whites only. It ought to be possible, therefore, for American students of any color to attend any public institution they select without having to be backed up by troops.

It ought to be possible for American consumers of any color to receive equal service in places of public accommodation, such as hotels and restaurants and theaters and retail stores, without being forced to resort to demonstrations in the street, and it ought to be possible for American citizens of any color to register to vote in a free election without interference or fear of reprisal.

It ought to be possible, in short, for every American to enjoy the privileges of being American without regard to his race or his color. In short, every American ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated. But this is not the case.

The Negro baby born in America today, regardless of the section of the Nation in which he is born, has about one-half as much chance of completing a high school as a white baby born in the same place on the same day, one-third as much chance of completing college, one-third as much chance of becoming a professional man, twice as much chance of becoming unemployed, about one-seventh as much chance of earning $10,000 a year, a life expectancy which is 7 years shorter, and the prospects of earning only half as much.

This is not a sectional issue. Difficulties over segregation and discrimination exist in every city, in every State of the Union, producing in many cities a rising tide of discontent that threatens the public safety. Nor is this a partisan issue. In a time of domestic crisis men of good will and generosity should be able to unite regardless of party or politics. This is not even a legal or legislative issue alone. It is better to settle these matters in the courts than on the streets, and new laws are needed at every level, but law alone cannot make men see right.

We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution.

The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated. If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public, if he cannot send his children to the best public school available, if he cannot vote for the public officials who will represent him, if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place? Who among us would then be content with the counsels of patience and delay?

One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free. They are not yet freed from the bonds of injustice. They are not yet freed from social and economic oppression. And this Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free.

We preach freedom around the world, and we mean it, and we cherish our freedom here at home, but are we to say to the world, and much more importantly, to each other that this is the land of the free except for the Negroes; that we have no second-class citizens except Negroes; that we have no class or caste system, no ghettoes, no master race except with respect to Negroes?

Now the time has come for this Nation to fulfill its promise. The events in Birmingham and elsewhere have so increased the cries for equality that no city or State or legislative body can prudently choose to ignore them.

The fires of frustration and discord are burning in every city, North and South, where legal remedies are not at hand. Redress is sought in the streets, in demonstrations, parades, and protests which create tensions and threaten violence and threaten lives.

We face, therefore, a moral crisis as a country and as a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the streets. It cannot be quieted by token moves or talk. It is time to act in the Congress, in your State and local legislative body and, above all, in all of our daily lives.

It is not enough to pin the blame on others, to say this is a problem of one section of the country or another, or deplore the fact that we face. A great change is at hand, and our task, our obligation, is to make that revolution, that change, peaceful and constructive for all.

Those who do nothing are inviting shame as well as violence. Those who act boldly are recognizing right as well as reality.

Next week I shall ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law. The Federal judiciary has upheld that proposition in the conduct of its affairs, including the employment of Federal personnel, the use of Federal facilities, and the sale of federally financed housing.

But there are other necessary measures which only the Congress can provide, and they must be provided at this session. The old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law. Unless the Congress acts, their only remedy is in the street.

I am, therefore, asking the Congress to enact legislation giving all Americans the right to be served in facilities which are open to the public--hotels, restaurants, theaters, retail stores, and similar establishments.

This seems to me to be an elementary right. Its denial is an arbitrary indignity that no American in 1963 should have to endure, but many do.

I have recently met with scores of business leaders urging them to take voluntary action to end this discrimination and I have been encouraged by their response, and in the last 2 weeks over 75 cities have seen progress made in desegregating these kinds of facilities. But many are unwilling to act alone, and for this reason, nationwide legislation is needed if we are to move this problem from the streets to the courts.

I am also asking the Congress to authorize the Federal Government to participate more fully in lawsuits designed to end segregation in public education. We have succeeded in persuading many districts to desegregate voluntarily. Dozens have admitted Negroes without violence. Today a Negro is attending a State-supported institution in every one of our 50 States, but the pace is very slow.

Too many Negro children entering segregated grade schools at the time of the Supreme Court's decision 9 years ago will enter segregated high schools this fall, having suffered a loss which can never be restored. The lack of an adequate education denies the Negro a chance to get a decent job.

The orderly implementation of the Supreme Court decision, therefore, cannot be left solely to those who may not have the economic resources to carry the legal action or who may be subject to harassment.

Other features will also be requested, including greater protection for the right to vote. But legislation, I repeat, cannot solve this problem alone. It must be solved in the homes of every American in every community across our country.

In this respect I want to pay tribute to those citizens North and South who have been working in their communities to make life better for all. They are acting not out of a sense of legal duty but out of a sense of human decency.

Like our soldiers and sailors in all parts of the world they are meeting freedom's challenge on the firing line, and I salute them for their honor and their courage.

My fellow Americans, this is a problem which faces us all--in every city of the North as well as the South. Today there are Negroes unemployed, two or three times as many compared to whites, inadequate in education, moving into the large cities, unable to find work, young people particularly out of work without hope, denied equal rights, denied the opportunity to eat at a restaurant or lunch counter or go to a movie theater, denied the right to a decent education, denied almost today the right to attend a State university even though qualified. It seems to me that these are matters which concern us all, not merely Presidents or Congressmen or Governors, but every citizen of the United States.

This is one country. It has become one country because all of us and all the people who came here had an equal chance to develop their talents.

We cannot say to 10 percent of the population that you can't have that right; that your children cannot have the chance to develop whatever talents they have; that the only way that they are going to get their rights is to go into the streets and demonstrate. I think we owe them and we owe ourselves a better country than that.

Therefore, I am asking for your help in making it easier for us to move ahead and to provide the kind of equality of treatment which we would want ourselves; to give a chance for every child to be educated to the limit of his talents.

As I have said before, not every child has an equal talent or an equal ability or an equal motivation, but they should have an equal right to develop their talent and their ability and their motivation, to make something of themselves.

We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair, that the Constitution will be color blind, as Justice Harlan said at the turn of the century.

This is what we are talking about and this is a matter which concerns this country and what it stands for, and in meeting it I ask the support of all our citizens.

Thank you very much.

FL - Teacher Accused Of Sex With Student Avoids Jail Time

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Another female, another slap on the wrist.  Reverse the roles, and the man would be in jail or prison for awhile.  More double-standard, UNEQUAL justice BS!


SEMINOLE COUNTY -- A former middle school teacher accused of having sex with a 14-year-old boy will not be going to jail.

Jennifer Tarkenton, 34, pleaded no contest to a reduced charge of felony battery, which means she won't have a record as a sex offender.

Tarkenton, who is now married and goes by the last name Nero, was arrested in Lake Mary last November after she was caught with a 14-year-old male student inside her car.

In addition, Tarkenton will spend the next five years on probation, cannot live within 500 feet of a school or park, and must attend a sex offender treatment program.
- If she won't have a record as a sex offender, why then does she have to obey the same laws a sex offender does?