The Importance of Advocacy to Change Hearts & Minds

by Barb Wright
July 2021

It has been said that we need three things to effect change: legislation, litigation, and education (not necessarily in that order). These two articles describe developments in the first two areas and present important educational opportunities for our members.

South Carolina Supreme Court Nixes Lifelong Registration Requirement as Unconstitutional (summarized below) reminds us that sexual offense laws are unjust, ineffective, and even counterproductive. Clearly, lifetime registration of individuals who pose little to no risk to society makes the registry over-inclusive and burdensome. California, in deciding to adopt a three-tier system, stressed that a strong, limited registry is a more effective tool for law enforcement and the public, and that risk assessment is an important part of that tool.

This is not the first such ruling but is the exception rather than the rule. Its value is in educating lawmakers that sexual offense registration simply does not work.

Prestigious American Law Institute Recommends Sweeping Changes to Model Penal Code Regarding Sexual Offense Registration (also summarized below) presents what appears to be a roadmap to sweeping reform. These recommendations do not present anything new: the Ohio Criminal Justice Recodification Committee made similar recommendations in 2017. And the American Society for the Treatment of Sexual Abusers (ATSA) also recommended curtailing sexual offense registration and its collateral consequences. The difference is that the Model Penal Code is in a position to influence legislation for years to come. Still, the ALI recognizes that registries and their associated features “currently command overwhelming public support, based on emotions and intuitions not easily dislodged.”

Change will not happen overnight and not without a concerted effort by individuals and groups which oppose the registry. In other words, change will not occur without you.

OH-RSOL and its members are attempting to effect that change. We have been actively involved with legislation and have filed an amicus brief in one Ohio Supreme Court case. But we need an army to effect change. We need soldiers on the front line and support for those at home.

→ Wanna join us in the fight?

South Carolina Supreme Court Nixes Lifelong Registration Requirement as Unconstitutional

https://narsol.org/2021/06/sex-offense-registration-for-life-unconstitutional-says-sc-supreme-court/

Legislatures have maintained that registration is a civil regulatory scheme, not punishment; therefore, legislation which arbitrarily assigns tiers based upon the offense, rather than risk factors or even individual facts of the case, does not require due process. The Supreme Court has ruled that classification satisfies any due process requirements. However, courts are starting to recognize that a registration scheme which severely restricts where an individual works, lives, or spends free time is indeed punishment. This is especially true in states which maintain lifetime registration for all offenses.

South Carolina, like many other states, requires lifetime registration for the most minor sexual offenses, with no opportunity to petition for removal. The South Carolina Supreme Court, in reviewing the petition of a man registered for the equivalent of Ohio’s Importuning, a Tier I offense requiring fifteen-year registration, ruled as follows:

“The lifetime inclusion of individuals who have a low risk of re-offending renders the registry over-inclusive and dilutes its utility by creating an ever-growing list of registrants that is less effective at protecting the public and meeting the needs of law enforcement … Moreover, there is no evidence [that] … all sex offenders generally pose a high risk of re-offending.” The South Carolina Supreme Court gave the legislature 12 months to rewrite the law to allow offenders an opportunity for “judicial review.”

This case does not directly impact Ohio for a number of reasons. Two reasons are that Ohio does not have lifetime registration for all offenses and does offer a petition for early relief for Tier I offenders. But this article gives important talking points about the importance of risk assessment in any registration scheme. (See also Lingle v. State, Slip Opinion No. 2020-Ohio-6788: https://view.publitas.com/p222-5250/vol-xiv-no-1/page/2-3)

Prestigious American Law Institute Recommends Sweeping Changes to Model Penal Code Regarding Sexual Offense Registration

https://narsol.org/2021/06/prestigious-american-law-institute-recommends-sweeping-changes-to-registry-including-no-public-dissemination/

The American Law Institute (ALI), established in 1923, is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The ALI consists of leading attorneys, law professors, and judges and has long influenced the nation’s legislation, which includes adopting a Model Penal Code (MPC) for states to follow.

The MPC is a model. There is no requirement that states follow the recommendations therein. Until recently, the ALI was remarkably silent on sexual offense registration, even as that registration evolved into the draconian scheme it is today.

In 2012, the ALI began a project to study the Model Penal Code chapter on sentencing and collateral sanctions for sexual assault and related offenses. The project team was comprised of practicing attorneys, judges, and scholars who are experts in sexual offense registration. Not surprisingly, the team found that evidence overwhelmingly shows the cost of registration, together with the onerous burden it places on anyone required to register for a conviction of a sexual offense, renders it ineffective and even counterproductive to its goal of protecting the public.

The membership of the ALI gave its final approval to a revision of the MPC’s chapter on Sexual Assault and Related Offenses on June 8, 2021. The Tentative Draft, totaling 600 pages long, includes an Executive Summary and “blackletter law” recommending the following changes:

  1. Registration will be limited to five offenses committed within Ohio (with guidance as to offenses committed outside Ohio):
    1. Sexual Assault by Aggravated Physical Force or Restraint
    2. Sexual Assault by Physical Force, but only when committed after the offender had previously been convicted of a felony sex offense
    3. Sexual Assault of an Incapacitated Person, but only when committed after the offender had previously been convicted of a felony sex offense
    4. Sexual Assault of a Minor, but only when the minor is younger than 12 and the actor is 21 years old or older
    5. Incestuous Sexual Assault of a Minor, but only when the minor is younger than 16
  1. The maximum period for registration will be 15 years, with removal after 10 years for good behavior.
  2. The sexual offense registry will no longer be public but will only be available to law enforcement personnel.
  3. Community notification will be eliminated.
  4. Many of the burdens imposed by registration or related laws, including GPS monitoring, many bars on employment, restrictions on Internet access, and residency restriction, will be available on a case-by-case basis only, based upon determination of the risk and needs of the offender.
  5. Failure to register is a misdemeanor if the individual “knowingly” fails to register, update, or verify information, and has no affirmative defense.
  6. An offender may file a petition for relief at any time prior to expiration of sentencing obligations and collateral sanctions, including the duty to register.

The current Council of the ALI includes seven members of the United States Courts of Appeal, as well as Justices on the highest courts of California, Arizona, Texas, and New Jersey. This Council agreed on January 22 to recommend the membership’s final approval of the completed project (including the changes stated above). The recommended changes of this project are still subject to further comment and review and do not become the official position of the Institute until they are adopted by the members.

If you want to help us fight to change registry laws and thereby mitigate damage the registry causes to registrants, their loved ones, and ultimately society, contact chair@ohrsol.org.

Termination of the Duty to Register Rules, Process, & Tips

by Barb Wright
April 2021

Depending on the date of your offense and the tier level classification, you may be eligible to petition the court for termination of your duty to register. Ohio’s current Sex Offender Registration and Notification (SORN) law specifically provides for certain offenders to petition for termination under Section 2950.15 or 2950.151 of the Ohio Revised Code. This article explains the termination process.

Who Is Eligible?

Don’t believe the rumor that Tier I offenders can petition after five years and Tier II offenders can petition after 10 years. Until recently, there was only one procedure for termination of adult registration duties: A person classified as a Tier I offender for an act which occurred after January 1, 2008 can petition the court for termination of registration duties after ten years of good behavior. Recent legislation also provides a petition for termination or modification for certain low risk, youthful offenders convicted of the offense of unlawful sexual conduct with a minor or its equivalent. There is no other petition available to adults registered under either SORN or Megan’s law.

The applicant must be able to demonstrate that he or she has completed all of the terms of his or her sentence and has been released from supervision. The applicant must then plead that he is not a danger to society, especially to children, and that it would be in society’s best interest to allow him or her to become a contributing member of society.

Before we discuss how to do that, there is one important caveat: in order to file a motion for early termination, an applicant must have completed a “sex offender therapy or child-victim offender treatment program.” But not just any program. The program must be certified by the Ohio Department of Rehabilitation and Corrections. Failure to complete the right program, through no fault of the applicant, can possibly derail the early termination before it even gets started. (Note: We are currently seeking an amendment to eliminate this requirement.)

How Does an Applicant Succeed in Terminating the Duty to Register?

As with any court proceeding, the court has the ultimate discretion after considering all the evidence. It is the prosecutor’s job to convince the court that registration duties should not be terminated, and the prosecutor will undoubtedly receive help from the probation department and the accuser, who will both argue it is unsafe to release you out into the world.

Your job, and the job of your attorney, is to convince the court that you are not a danger to society, and no reason exists for you to continue to register. You can start by demonstrating your stability through evidence that you are employed, attending school, volunteering, or any other stabilizing factors.

Demonstrate that you have suitable housing, and a support network of friends, family, neighbors, community members, church members, or anyone else who will write a letter on your behalf.

Demonstrate that you have paid your taxes, your bills, your child support, or any other financial obligations; and that you have a current driver’s license, CDL, or other evidence of compliance with traffic laws.

But most importantly, t show that you have been rehabilitated, and no longer pose a risk to society, especially to children. This is where you pull out all the stops:

  • Consider having an independent risk analysis done by a therapist trained in sexual offense risk assessment.
  • Obtain letters of reference from people that know you are registered, but still vouch for your character and the safety of society. If your offense involved a child, have a neighbor or friend write that he or she would trust you with his or her child.
  • If you are active with your church, a volunteer organization, or your community, obtain letters of reference from not only the supervisor, but others who have worked with you.
  • If there have been any issues with drugs or alcohol, you need to demonstrate that you have resolved those issues.
  • Finally, your attorney should write a convincing brief explaining that it is the best interest of the public that your duties be terminated.

Don’t Go It Alone

I know it is difficult to trust an attorney after everything you have been through. But this may be the most important court appearance of your life, why take a chance or cut corners? It will be worth it to hire a trained professional with ties to the court and to the prosecutor; someone who has a private investigator to investigate any new allegations by the accuser; someone who knows his or her way around a courtroom.

Believe it or not, there are good attorneys who care about the injustice of SORN and recognize the unintended consequences to you and your family. The trick is to find them.

Let us help. Contact the Legal & Policy Committee at barb.wright@oh-rsol.org for help with the talking points for the brief and with hiring an attorney. We will help guide you through the process.

Relief for Youthful Offenders: It’s About Time

by Barb Wright
February 2021

After five years of hard work and cajoling, Families and Individuals for Reform (FAIR) convinced the Ohio General Assembly to pass a bill that allows certain “eligible offenders” to petition for modification or termination of the duty to register. It wasn’t easy (see “Lots of Hard Work, and Then a Christmas Miracle” in this issue), and it’s just the first step but a great start.

Petition for Modification or Termination to Register

Substitute House Bill 431, as amended, enacts new Section 2950.151 of the Ohio Revised Code. Section 2950.151 creates a new procedure for a person convicted of unlawful sexual conduct with a minor, or a similar offense from another state, to move the court for modification or termination of the duty to register if he or she meets the following criteria:

  • The eligible offender must have been 18, 19 or 20 at the time he or she had sex with a minor 14 or 15 years old, and it was a first offense.
  • The minor must have agreed to the sex, with no evidence of force, threat of force, or coercion.
    The eligible offender was not in a position of authority over the minor.
  • The eligible offender was deemed “low risk” at sentencing and was sentenced to community control sanctions in lieu of prison.
  • The eligible offender must have completed each and every community control sanction, with no new offenses.

The motion is framed as a request for the court to review the effectiveness of the offender’s participation in community control sanctions and to determine whether to modify or terminate the offender’s duty to register.

Tips to Prepare for a Successful Petition

The key to a successful petition is to demonstrate that you, as the eligible offender, have been rehabilitated to a sufficient degree that you do not pose a risk to society. The more you can do to prove your case, the better. If you can afford a new risk assessment (or psych-sexual evaluation), get one. If you can’t, use letters of reference and personal experience demonstrating that you were young and immature at the time of the offense but that now you are mature and responsible.

Don’t be afraid to make the argument that barriers to housing and employment and loss of family support have made it hard for you to be a contributing member of society. In the end, though, you need to demonstrate that you have overcome those obstacles and matured out of the offending behavior.

Proof of Successful Completion of a Sex Offender Therapy Program

One requirement of the motion is that you demonstrate that you have completed sex offender therapy certified by the Ohio Department of Rehabilitation and Corrections (ODRC). As I have found out the hard way, this may not be as simple as it sounds: not all programs are certified by ODRC. And since you initially had no control over what program you attended, this leaves you in a bind if your program was not accredited.

Here are your options:

  1. Obtain records from your therapy and use them to show that you have accomplished the spirit, if not the letter, of the requirement.
  2. Argue that the eligibility criteria take precedence over any other provisions in Section 2950.151. Since the eligibility criteria do not even mention therapy (just that you have completed community control sanctions), the “proof” required is simply boilerplate and not required for you to demonstrate rehabilitation.
  3. You can try to repeat your therapy with a program certified by ODRC, but enrollment generally requires a referral from the probation department. Instead, you can argue that therapy is not the preferred method of rehabilitation for low-risk individuals and may even be counter-productive.

Record Sealing – The Icing on the Cake

If/when you are successful in terminating your duty to register, you have the right to petition to have your record sealed. As a threshold issue, the court will:

  • Determine if you have been relieved of your duty to register.
  • Determine whether the applicant is an eligible offender under the provisions of Section 2953.32 and 2953.36 of the Revised Code, whether criminal proceedings are pending against the applicant, and whether the applicant has been rehabilitated to the court’s satisfaction.
  • Consider the reasons against granting the application specified by the prosecutor in any objection to the application.
  • Weigh the applicant’s interests in having the records pertaining to the conviction sealed against the government’s legitimate needs, if any, to maintain those records.

In addition, under HB 431, the court also must determine whether the offender has been rehabilitated to a satisfactory degree.

The court may consider all of the following in making its determination:

  • Offender’s age
  • Facts and circumstances of the offense
  • Cessation or continuation of criminal behavior
  • Offender’s education and employment history
  • Other circumstances that may relate to the offender’s rehabilitation

Lots of Hard Work & Then a Christmas Miracle

by Barb Wright
February 2021

Families and Individuals for Reform (FAIR) and 682 potential “eligible offenders have received a Christmas present in the form of a “Christmas tree” bill at the end of the 133rd General Assembly. A Christmas tree bill is a conglomeration of bills, usually of related content (but sometimes not), that passes during the lame duck session between the election and the end of the legislative session. This type of bill allows passing into law a bill that has received support from the legislature but has not received the necessary number of hearings or floor votes. It also allows passage of unpopular bills that leadership supports but wants to hide. Such was the case with Senate Bill 47.

FAIR had spent the last five years working on a bill to allow those who are 18-20 years old and required to register for a conviction of unlawful sexual conduct with a minor to petition for modification or termination of that duty. The bill was a combination of provisions from the juvenile code, statutes from other states, and suggestions from interested parties. FAIR spoke to lawmakers, prosecutors, judges, representatives from youth services and the Attorney General, and survivor groups. The proposed bill almost got to the finish line as an amendment to a Christmas tree bill in 2018, but it failed on the last day of session.

So, FAIR started over in 2019. The latest iteration of that effort, Senate Bill 47 (SB 47), was introduced early in the 2019-2020 session, and had been recommended unanimously by the Senate Judiciary Committee for passage. All that was needed was a Senate floor vote during Senate session, and then the process would be repeated in the House of Representatives. But because of the subject matter, the Senate President never scheduled a vote during Senate Session, a process called “third consideration.”

By summer break in 2020, it became clear that the bill would not be passed as a “stand-alone” bill. FAIR would need to find a bill that 1) was likely to pass, 2) was germane to the subject matter, and 3) add the bill as an amendment to that bill. With issues involving COVID-19, drug sentencing reform, gun rights, and Black Lives Matter on the forefront, legislation regarding other topics seemed unlikely to be considered.

When legislature was about to reconvene after breaking for COVID-19, the Speaker of the House was indicted by the FBI for embezzlement, racketeering, and other charges related to the passage of House Bill 6. HB 6 was the energy bill which allowed Ohio’s nuclear plants to remain open. Speaker Householder allegedly accepted more than $4 million from FirstEnergy Solutions, now Energy Harbor, to push the bill through. Representative Bob Cupp took over as Speaker of the House.

Lobbying is all about relationships. FAIR had established relationships with the old leadership team and would now have to start over with a new team. And to make matters worse, the legislature came to a grinding halt before the elections. All 99 Representatives and half of the 33 Senators were campaigning for office in November. It was sure to be a whirlwind lame duck session after the elections.

FAIR had given up and resigned to reintroducing the bill again in January. Then came House Bill 431 (HB 431), a bill to create a sexual exploitation database. HB 431, promoted by the Ohio Attorney General, would create a “john database” as a disincentive for the demand side of human trafficking. Of course, FAIR was opposed to creating a new database, but it was the only bill that was moving that SB 47 might be included in.

And then a miracle happened. The database provisions were removed entirely from HB 431. What remained was a combination of human trafficking improvements and the entirety of SB 47 Allow certain sex offenders to petition for SORN reclassification.

Substitute House Bill 431 (HB 431) passed the Senate by a vote of 32-0 on December 17, 2020. The House of Representatives concurred in the amendments to the bill. This bill, as amended, enacts new Section 2950.151 of the Ohio Revised Code as of April 12, 2021.

The passage of HB 431 is a testament to what can be accomplished with the four “Ps:” Be Polite, Professional, Persistent, and Passionate. And believe in miracles.

Michigan Supreme Court says registry is punishment.

By John Agar . . .

MUSKEGON COUNTY, MI – The Michigan Supreme Court said requirements of the state’s Sex Offender Registration Act are an unconstitutional punishment for a man convicted years before the registry took effect.

The man’s attorney said the ruling in the Muskegon County case would impact others who were convicted before registry rules were amended in 2011.

The provisions restricted where sex offenders could live or work and forced them to follow other rules or face prosecution.

“It’s a really big deal for the tens of thousands of people subject to the burdensome requirements” of the Sex Offender Registration Act, or SORA, Jessica Zimbelman, an attorney for the State Appellate Defender Office, told MLive on Tuesday, July 27.

The Supreme Court found that the 2011 statute was an unconstitutional “ex post facto” law that retroactively punished conduct, rather than an effort to promote public safety.

“We are asked to decide whether the retroactive application of Michigan’s Sex Offenders Act (as amended in 2011) … violates state and federal constitutional prohibitions on ex post factor laws,” the Supreme Court wrote.

“We hold that it does.”

The state Supreme Court said legislators likely intended 2011 SORA rules “as a civil regulation rather than a criminal punishment” but said they impose “onerous burdens” and resemble “the punishment of shaming. The breadth of information available to the public – far beyond a registrant’s criminal history – as well as the option for subscription-based notification of the movement of registrants into a particular zip code, increased the likelihood of social ostracism based on registration.”

The registry lists criminal conviction, home address, employer, a photo and other identifying information. The registrants are essentially on parole, the Supreme Court said.

“In conclusion, the 2011 SORA bears significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision,” the court said.

Read full article

Levenson, Horowitz, & Singleton among speakers for NARSOL conference

NARSOL’s National Conference is scheduled for October 8-10, 2021, in beautiful Houston, Texas, and it’s getting closer. This event offers much that goes above and beyond the amazing speakers, enlightening information, and wonderful connections that you’ll make. Details are still being finalized for the conference, but it’s never too early to mark your calendar and to book your room at the attractive group rates we’ve negotiated for attendees.

REGISTER NOW!  And keep your eye on the conference website for more details, start making plans to attend, and tell your friends! See you there!

These are the confirmed speakers for NARSOL’s October conference in Houston:

Dr. Jill Levenson, nationally recognized researcher & social worker:

Dr. Emily Horowitz, professor of Sociology and Criminal Justice; director, Institute for Peace & Justice:

Atty. Paul Dubbeling, civil rights attorney and general counsel, NARSOL:

Atty. David Singleton, Executive Director, OH Justice & Policy Center:

Mrs. Mary Sue Molnar (banquet speaker), Executive Director, Texas Voices:

In addition, many workshops will be available focused on increasing your effectiveness as an advocate for our cause and for your community.

See you in Houston in October!

Watch the video “Hoedown in Houston.”