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A Defense to SORNA- Ohio Provides the Template

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The Separation of Powers Doctrine may provide relief to some SORNA/AWA registrants.

By Attorney Elisabeth K.H. Pasqualini, SORNA Attorney, Harrisburg, PA

In July 2007, Ohio passed its version of SORNA (Sexual Offender Registration and Notification Act) or the Adam Walsh Act.  Similarly, Pennsylvania has also recently passed its Adam Walsh Act legislation that went effective on December 20, 2012.  (See link to statute). 

The State Supreme Court of Ohio took up the issue of whether the passage of the Ohio version of SORNA violated the separation of powers doctrine in Ohio.  See State of Ohio, Appellee, v. BODYKE et al., Appellants. No. 2008-25021, 26 Ohio St.3d 266 (Supreme Court of Ohio, Decided June 3, 2010).  The specific issue as defined by the Court is whether "the current version of R.C. Chapter 2950, as amended by 2007 Am.Sub.S.B. No. 10 ("the Adam Walsh Act" or "the AWA"), as those provisions apply to sex offenders whose cases were adjudicated prior to its enactment."

Relevant Background on the Ohio Case

In 1994, New Jersey enacted the first version of a sexual offender law that required community notification, among other things.  Following its enactment later that same year, Congress enacted the Jacob Wetterling Act.  Two years after its enactment, the Act was amended to require that states add community-notification provisions.  The Jacob Wetterling Act then became better known as the federal "Megan's Law."

Ohio's Megan's Law

Megan's Law repealed prior versions and created Ohio's first comprehensive registration and classification system for sex offenders. In order to accomplish its goals, Ohio's Megan's Law provided for offender registration, classification, and community notification.  This law, passed in 1996, survived separation of powers and ex post facto (retroactivity) arguments.  The law allowed courts to categorize offenders into three areas: "sexually oriented offender", "habitual sex offender", and "sexual predator".  These determinations were made by the court after a hearing and not based solely upon the crime committed. 

Ohio's Adam Walsh Act

The Ohio version of AWA now places offenders into classifications based upon the Tier system.  (See blog article link to Tier System).  They are classified as Tier I, Tier II, or Tier III sex offenders (or child-victim offenders) based solely on the offender's offense.  This takes all judicial discretion away and places it squarely within the hands of the executive branch (State attorney general) based upon a delegation of authority by the Ohio Legislature.  The Ohio Supreme Court in Bodyke, determined that the specific provisions of Ohio's Law that delegates the authority to the attonrey general violated the separation of powers doctrine.

A Similar Argument is Being Made Federally

In Billy Joe REYNOLDS, Petitioner v. UNITED STATES. No. 10-6549; 132 S.Ct. 975 Supreme Court of the United States (Argued Oct. 3, 2011; Decided Jan. 23, 2012), Justice Scalia in his dissent stated "[i]ndeed, it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide-with no statutory standard whatever governing his discretion-whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable."  at 986.

Does the Separation of Powers Argument Apply in Pennsylvania?

This argument is not likely to gain traction in Pennsylvania.  Primarily, PA has always group its sex offenders into registration periods based upon the conviction of an enumerated offense.  It's an offense-based system.  Ohio's system was based on a determination by a court as to the appropriate grouping.  The argument that the PA system violates the ex post facto law or retroactivity provision has never been successful. (See link to blog article on Enhancements to Megan's Law)

If you have questions about Adam Walsh Act (SORNA) registration requirements call Shaffer & Engle Law Offices, LLC toll free or email us today.

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