Wednesday, February 24, 2010


I’ve read over this Opinion.

It’s has one or two fresh points for the SO community, and a lot of the old stuff.

But the Dissent by Justice Cannon is refreshing and verrry significant.

The text of the Opinion and the Dissents is here. It is also linked at a short piece on the Constitutional Fights site under date of February 19, 2010.

Since the Opinion and Dissents are given paragraph numbers, then when I refer to the text I’ll only use the paragraph number – e.g. ‘Para. 34’.

Spangler was convicted, at age 73, in January of 2001, of exposing himself to and fondling several children. He was sentenced to 5 years of community service, required to register as a “sexually oriented offender” for 10 years, and to report to the Sheriff annually to verify his information. [Note: his classification as one of the lower-ranks of sex-offender was actually a part of the sentence passed by the trial court.]

But – ta-daaahhhh! – Ohio passed Senate Bill 10 (SB 10) in an effort to comply with the Adam Walsh Act (AWA). Consequently on November 26, 2007 Spangler got a Notice from the State Attorney General stating that he had been re-classified according to the AWA scheme as a Tier II offender, with concomitant increase in his registration requirements which, among other things, required a personal appearance before the Sheriff every 180 days for 25 years.

Spangler contested that reclassification, as is provided for in Ohio law. The judge in that March 2008 Hearing denied his Petition to Contest and re-classified him as a Tier II sex offender, conforming to the AWA-SB 10 scheme.

Spangler appealed to the State Appeals Court and this is the June, 2009 Opinion of that Court.
Spangler raises several issues (which the Court, for purposes of clarity, considers out of their original order).

In his first assignment of error (Para.16) Spangler raises the Ex Post Facto objection. Nope, the Court says (Para.19): The legislative intent of the Act is merely to inform the public “so that it can develop constructive plans” to prepare for the offender’s release because this is a “paramount government interest” and the Registration and Notification (and the Classification) will further that goal by facilitating the exchange of “relevant information” among law enforcement agencies and the public and as such “is not punitive” in its intent.

We’ve heard all this before. As I’ve said, it is hard to imagine what “constructive plans” any of the public would make, and every possibility that the public will wind up making ‘destructive plans’ (if I may) to simply get rid of him and his family (if any) by any means necessary.

And I can’t help but wonder if the Federal government’s “paramount interest” isn’t Constitutionally assigned to the State government (so that the Federal government can concentrate its efforts on more important stuff like – oh, say – the economy and the increasing number of foreign wars; this ‘government interest’ phrase seems to confuse the Constitutionally-assigned roles of State and Federal government … but then maybe the Feds got into this thing precisely to distract folks from the Beltway’s failures in matters of the economy and the wars).

And knowing what is now known about sex-offender ‘recidivism’ (it’s verrrrry low in just about every respect) then just how accurate and relevant is the “relevant information”?*

BUT the Court then comes up with this encouraging point: “However, to the extent the application of the Adam Walsh Act requires final sentencing orders to be vacated, modified or rewritten, such application to previously journalized orders, no matter how well-intended, violates the separation of powers doctrine and res judicata”. (‘Res judicata’ means: something already adjudged.)

This means that if your classification was made part of the original court sentence, then neither the Executive nor the Legislature can make the Judiciary (separation of powers) change a judicial decision that has already been formally made (res judicata).

This will be of great help if an SO was classified as part of the original sentence. Otherwise, not so much.

I note also that the Decision here clearly refuses to allow the ‘good intentions of the government’ argument to trump the clear Constitutional boundaries. I doubt the Court – given the rest of this Decision – is concerned for sex-offenders; but when it comes to a turf struggle over the Separation of Powers the Court stands tall quickly and decisively.

In Para.25 the Court makes reference to the Ohio legislature’s “Findings”. These are the same grossly flawed and inaccurate assertions that we have seen in SO laws since the beginning: “’that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.’ Id. Similarly, the current changes to the Act reflect the understanding that all sex offenders, by virtue of having committed ‘sexually oriented offenses’ pose a risk of committing further sexually oriented offenses”.

You have to ask yourself not just When legislatures are going to get around to catching up with the actual facts but Why they haven’t done so already. Lawmakers who seem to be spending a whole lotta time coming up with new SO restrictions don’t seem to be spending much time on keeping up with facts now discovered that are seriously relevant to the whole sex-offense situation.

You begin to wonder if the pols have been telling themselves for wayyyy too long that “facts don’t matter”. And you wonder what could possibly be so important as to deform and derange so vital an element of legislative integrity as making sure that they laws you are passing are based in actual fact. At this stage it seems like the SO laws are based on the equivalent of ancient astrology rather than up-to-date astrophysics. This is not a good thing – for the legitimacy and credibility of the legislatures and legislators as well as for the general integrity of the legislative process.

In his second assignment of error, Spangler raises the Retroactive objection: that the government cannot punish persons retroactively by increasing punishments and applying them to crimes committed before the increases were legislated into effect. Nope, says the Court (Para.31): the Ohio Supreme Court has already held that increased “burdens” do not constitute increased punishment and don’t alter the essentially non-punitive nature of the [AWA-SB 10] scheme. It goes on to quote that Court that “with the exception of Ex Post Facto laws, felons have no right to expect that their conduct will never thereafter be made the subject of legislation”.

This is an insidious, indeed a treacherous, double-whammy. First you introduce the distinction between “punishment” and “burden” – which seems to me a distinction without a difference. Second, you say that felons can never be sure they won’t be further “burdened” even after they have paid their debt to society.

Spangler then raises the issue of double-jeopardy: that he is being punished again for something he has already been punished and paid his debt for. Nope, says the Court (Para. 34): since the “burden” is not a punishment, then he’s not being punished twice.

You see where these court pronouncements start to sound like the Red Queen lecturing Alice.

Spangler then raises the issue that residency restrictions violate his Constitutional rights to due process and his right to privacy. Nope, says the Court (Paras.38-40): since Spangler is not proven in the filings to be actually liable to residency restrictions, then he has no Standing to bring the objection.

It’s true, technically. Although the chances are better than good that he – like just about any SO – stands a good chance of getting slapped with such restrictions sooner or later.

Spangler then raises the objection that as a Tier II offender he will be subjected to more onerous Notification procedures than existed when he was originally sentenced. Nope, says the Court (Paras. 42-43): as a Tier II offender he is not subject to increased Notification requirements.

Spangler then raises the objection that the amended provisions of SB 10 violate the Separation of Powers doctrine since SB 10 authorizes the Attorney General, a member of the Executive Branch, to assign punishment. Nope, says the Court (Paras. 48-49): we already said that the enhanced “burdens” are not a punishment, and on top of that the new requirements come not from the Executive Branch but from a new law [i.e. SB 10] passed by the Legislature, which is what the Legislature is authorized to do (see also Para. 53).

BUT, adds the Court (Para.57), once a trial court issues its sentence, and neither side (defendant or State) appeals that judgement, then the judgement is finalized as an act of the Judicial Branch and under the doctrine of res judicata it cannot be changed by the acts of any other Branch. So, the Court says (Para.58): “Since Spangler’s classification as a sexually oriented offender with definite registration requirements constituted a final order of the lower court, Spangler cannot, under separation of powers and res judicata principles, now be reclassified under the provisions of the amended Act with differing registration requirements”.

Again, this is good news for any SO whose classification was included in part of the original trial court’s sentence and was not appealed within the time limits by either the defendant or the State.

Nicely, the Court (Para. 60) says it again: “It does not matter that the current Sex Offender Act formally amends the underlying law and does not order the courts to reopen final judgments. The fact remains that the General Assembly “cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett, 73 Ohio St. at 58. Spangler’s reclassification, as a practical matter, nullifies that part of the court’s April 27, 2001 Judgment ordering him to register for a period of ten years as a sexually oriented offender. To assert that the General Assembly has created a new system of classification does not solve the problem that Spangler’s original classification constituted a final judgment. There is no exception to the rule that final judgments may not be legislatively annuled [sic] in situations where the Legislature has enacted new legislation”.

And it does it again in Para 63: “In the present case, Spangler had every reasonable expectation of finality in the trial court’s April 27, 2001 Judgment Entry, i.e. that he would have to comply with five years of community control sanctions, pay the fine of $350, and register for a period of ten years as a sexually oriented offender”.

And just to make sure that there is no misunderstanding in regard to AWA, the Court says so bluntly in Para. 67: “To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Spangler’s sentence, it violates the doctrines of separation of powers and finality of judicial judgments, despite the good intentions of the Legislature. As such, that portion of the Act is invalid, unconstitutional, and unenforceable”. [italics mine]

And once again I note that the Court goes out of its way to point out that in this matter – at least – “the good intentions of the Legislature” are not enough to ignore a major Constitutional principle. Let’s hope this not-really-new principle catches on in other aspects of Court review of SO legislation.

There follow two Dissents. The second one (Paras. 110-113), by Justice Mary Jane Trapp, is a short one that thinks the added requirements do not constitute a violation of res judicata because of a technicality: the trial court’s sentencing order was only ‘final’ in the sense that it was ‘appealable’, not in any other sense. If it sounds a little odd, that’s because it is.

But the first Dissent, by Justice Timothy P. Cannon, starting at Para.69, is an impressive and encouraging goldmine. A law-student could do worse than to read it simply for its comprehensiveness, orderly progression, and incisive clarity. Oh, and for its common sense. A lot of sitting jurists could use their time well by reading it too.

Cannon writes that he agrees with the conclusion that Spangler’s sentence constitutes res judicata and no subsequent State or Federal legislation can change it, but he doesn’t agree with the analysis of the Ex Post Facto and Retroactivity arguments raised by Spangler (Para.69).

He does not think it proper for the State to adopt the (federal) AWA principle of classifying all SO’s merely on the blanket presumptions made in regard to their original crime-of-conviction, with no effort to examine each SO’s case individually: “This, I believe, would be a tremendous disservice to our Ohio and United States Constitutional protections. Certainly, to examine each case independently would require time and effort, but defense of the constitution against legislators who may be driven by public opinion and political security is the oath of every judge in this state” (Para.72).

Well said!

He tops that in Para.73: “In Ohio, as elected judges, we are forced to be a part of the political process. However, our oath directs that we protect, preserve, and defend the constitution. It does not allow us to wink at it when the political winds suggest it may be the popular thing to do”. You start to hear an acute intelligence and professional integrity that hasn’t been heard from much of the Bench or from the Legislative Branches (State or Federal) in quite a few years around here.

He disagrees with the Court’s analysis of ‘punitiveness’ because despite all the Ohio Supreme Court cases it cited in its majority Opinion “it is important to realize that while the Courts engaged in a weighing and balancing of interests as they related to the ex post facto clause, the Supreme Court of Ohio has yet to conduct an analysis weighing the impact of the additional burdens imposed by S.B. 10” (Para.74).

Here Justice Cannon is echoing the position of Ohio Supreme Court Justice Lanzinger (among others) who noted in her Dissent in another SO case that while originally – 15 or 20 years ago – the requirements on SOs may not have constituted so much of a burden as to be “in effect, if not in intent, punitive”, yet there has been such a pile-on since that time that it is now quite possible and maybe probable that the CUMULATIVE WEIGHT OF ALL THE BURDENS TAKEN TOGETHER now constitutes a tipping-point into ‘punitiveness’ (and that of course triggers the Ex Post Facto and Retroactivity principles of the Constitution).

Then, starting at Para. 76, Justice Cannon takes on the Court’s Ex Post Facto analysis: BUT, he says, when he examines the S.B. 10 Act it seems clear to him that the Legislature very much indeed intended it to be “punitive”. He thinks so because, despite the Legislature’s pious bleat that the law is not intended to be punitive, it is included in the Ohio Criminal Code and further that failure to comply will trigger criminal prosecution and penalties (Para.79).

Further, S.B. 10 requires classification within the criminal sentence of the trial court, and this is true even if the conviction is for a misdemeanor (Para. 80). As the Ohio laws state clearly, any “sanction” included in a sentence is thereby part of the punishment and sentence (Paras. 81-82).
Further, the much-increased amount of information required in the AWA-S.B. 10 scheme is to be placed on the internet for anybody – not just persons with a relevant need-to-know – to see (Para. 83).

Further, the Ohio Legislature provided for a Hearing before a court precisely to determine whether a person should be classified as a “sexual predator” and that was wise since otherwise Ohio would be flooded with numerous convictees who are not sexually dangerous and are mis-classified, which will not further the cause of community safety at all, and will actually degrade public safety (Paras. 85-86).

And then he makes the excellent point that: “Also of significance, the Eppinger Court noted that ‘[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior’” (Para. 87). [italics mine]

This observation goes to the heart of the numbers-scam in the SO laws, where the public is stampeded on the basis of alleged hordes of child-raping and murdering strangers while, in actuality, the vast majority of the many SOs are nothing of the sort: they either have committed far lesser offenses or have ‘re-offended’ only in the sense that they have technically fallen afoul of the byzantine reporting regulations. (Which sounds a lot like the Pentagon and Beltway habit of classifying any detainee as the ‘worst of the worst’, just to keep up the numbers. You can see the results of that scam at Gitmo. And you might wonder where the government in 2003 got that idea … perhaps from the great success it enjoyed in the SO mania.)

In a charming Colonial and Revolutionary usage, he notes that AWA demands a blanket crime-only assessment and classification, which amounts to a “ministerial rubber stamp on all offenders regardless of the mitigating facts in the individual case” (Para. 89). The term “ministerial” was used to describe the officials and troops of the British Crown back in the very early days of the Revolution when it was still thought here that it was the Prime Minister in London, and not the King, who was the source of all the American woes.

THEN, in that same paragraph, he puts his finger on another core AWA scam: “The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are going to offend again in the future”. This is a sleazy and treacherous Catch-22 that is not only insupportable as scientific method (it is not falsifiable) but is a cynical and corrosive imposition of the government police power upon Citizens who would – in the terms of the ‘expert analysis’ – have utterly no way of defending themselves.

Cannon continues on this marvelous roll: “While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, I believe that neither the Ohio Constitution nor the United States Constitution permit the retroactive application of S.B. 10 in its current form to individuals such as appellant herein” (Para.90).

AND THEN he notes a most interesting and very relevant fact about the Ohio Court system: “Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding” (Para.91).

He goes on to explain in that paragraph that at one time or another, in SO cases, four of the Justices on the Ohio Supreme Court have put themselves on record as believing that either the SO laws are punitive to begin with, or have increased their ‘burdens’ on the SO to that tipping-point where the cumulative weight of their assorted restrictions renders them now “punitive”.

Which means that in one of the not-distant cases where an SO raises the ‘punitive’ objection before the Ohio Supreme Court, the majority of Justices will agree, thereby pulling the Constitutional rug out from under the whole scheme – or rather, pull from underneath the SO mania legislation the Constitution which too many pols have been using as a rug.

And then in Para. 92 he asserts that even if the Ohio General Assembly’s intent were truly non-punitive (a big If indeed) still in terms of this appellant (Spangler) S.B. 10 is unconstitutional because of its punitive effect.

He adds (Para. 95) that on top of all that, S.B. 10 cannot further the goals of retribution and deterrence when the classification of an offender is based solely on the crime committed, not on an individual’s recidivism potential. In saying this he again draws attention to the fact that there are substantive coherence-gaps not only between the alleged ‘civil’ intention of the legislatures but also between the stated goals of the SO laws and the actual requirements they impose on the purported authority to achieve those goals. If not actually dishonestly presented, they are conceptually incoherent even on their own terms.

But he hasn’t finished yet. In Para. 96 he asserts that even if the SO laws will provide for public safety and that SOs actually do pose the risk they are claimed to pose, still “if the statistics and public opinion are as viable as those perceived by the legislature, the appropriate avenue for the legislature would have been to amend the constitution to allow for the retroactive, ex post facto application of S.B. 10”.

IN OTHER WORDS if the statistics and public opinion are as supportive as the legislators are always claiming, then the really best route for all this SO stuff is simply TO AMEND THE STATE CONSTITUTION TO PERMT FOR THE RETROACTIVE AND EX POST FACTO APPLICATION OF THE SO LAW.

Roll that one around in your mind for a bit.

He is the first jurist I have come across to actually call this scam’s bluff: if everyone is so sure that these SO laws work and that SOs are so very liable to pose an ongoing threat, then put your money where your mouth is and amend the Constitution of your State (or the US Constitution) by gutting it of two of its most profoundly fundamental protections – against Ex Post Facto laws and Retroactive punishments – and have done with it.

Of course, not even the vote-addled and less-than-purely-principled legislators of this age would really want to do that. First of all, a Constitutional amendment of such profound proportions would open the door for some serious scrutiny – and all the genuine facts that may come out would likely break the spell of the stampede.

Worse, it would expose all the legislators who have supported these things (the ones who merely voted for them did so through such non-public subterfuges as voice-votes) to public exposure (as it were).

Worse even than that, it would create a precedent whereby the most essential Constitutional firewalls are now breachable if the ‘emergency’ is perceived to be great enough – and who knows where that might lead in the future? Even to the legislators themselves? Or their friends and their relations? Or their well-paying supporters?

And on top of all that, such a Constitutional Amendment would clearly reveal the essential (and perhaps indispensable) ANTI-CONSTITUTIONALITY of the entire corpus of SO mania legislation. And I think that - like Hitler deciding to take dictatorial powers LEGALLY and not mount an outright coup d'etat - the Regulatory-Preventive Nanny State and its various supporters, enablers, and cadres would prefer (with great success so far) to smuggle their anti-constitutionality into the national forum under the sheep's clothing of 'constitutional reform' and 'legislative and judicial responsiveness' rather than come right out and show their true intentions. But that's also why the Courts can't seem to stamp out the numerous objections ... they have to keep coming up with tortured reasoning based on grossly untruthful 'facts' and Findings.

I recall a line from a recent episode of “The Tudors”, where Sir Thomas More, soon to be executed, says to Chancellor Thomas Cromwell (whose own end was still a little ways off): “The only difference between you and me, Mr. Cromwell, is that I shall die today and you shall die tomorrow”. These are the awful and awesome uncertainties that are unleashed EVEN AMONG THE ELITES when a government descends from a rule of law to a rule of personal whim.

Justice Cannon continues with a scathing but subtle indictment of the whole SO mania: “However, the constitutional amendment should not be circumvented with a clever legislative preamble based on questionable statistical data. If that were the case, virtually every constitutional protection is subject to selective legislative amendment”.

As the screen used to say in the old Batman TV show: Biff! Pow!

In Paras. 98-105 he rehearses perceptively the many cases in Ohio where Megan’s Law and its ilk have been increasingly scrutinized (but not yet condemned) for the expansions in “burdens” that have taken place over the past 15 years.

He THEN notes (Para. 106) that in Ohio law, the Retroactivity principle applies not only to criminal but to civil cases. In which case, if expanded registration requirements are seen not as ‘collateral consequences of a criminal act’ but rather as part of the adjudicated sentence, then later ‘administrative adjustments’ do indeed violate a convictee-Citizen’s proper “expectation of finality”.

And he goes further to imagine that this would apply to all SOs in Ohio “except the most heinous” (who would have every reason to expect lifetime registration and notification requirements). Which opens up huge possibilities there.

So kudos to Justice Cannon and here’s hoping a lot of jurists – in Ohio and beyond – read his Dissent.


*To brighten your day, read the DOJ-commissioned Vera Reports, available in a link on the Constitutional Fights site under date of February 22, 2010, as well as here and here. This pair of major studies pretty much find that the whole SO gambit is overblown and mis-directed and that there is little evidence that the SORNA schemes actually protect anybody.

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