State v. Blankenship (Slip Opinion) , 145 Ohio St. 3d 221 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Blankenship, Slip Opinion No. 2015-Ohio-4624.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-4624THE STATE OF OHIO, APPELLEE, v. BLANKENSHIP, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Blankenship, Slip Opinion No. 2015-Ohio-4624.]
Criminal law―Sex offenders―R.C. Chapter 2950―Registration and address-
verification requirements for Tier II sex offenders do not constitute cruel
and unusual punishment in violation of either Eighth Amendment to U.S.
Constitution or Article I, Section 9 of Ohio Constitution.
(No. 2014-0363—Submitted March 10, 2015—Decided November 12, 2015.)
APPEAL from the Court of Appeals for Clark County, No. 2012-CA-74,
2014-Ohio-232.
__________________
LANZINGER, J.
{¶ 1} Appellant, Travis Blankenship, challenges as cruel and unusual
punishment the sex-offender-registration and address-verification requirements
imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging
in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because
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we hold that the Tier II registration requirements imposed upon him are not so
extreme as to be grossly disproportionate to the crime or shocking to a reasonable
person and to the community’s sense of justice, we affirm the judgment of the
court of appeals.
I. Background
{¶ 2} In 2011, Blankenship began communicating with M.H. through a
social media site called PhoneZoo.com. During an online conversation he told
M.H. that he was 21, and she informed him that she was 15. After meeting in
person, they began a sexual relationship and had intercourse on two different
dates. M.H. reported that it was consensual each time.
{¶ 3} A bill of information charged Blankenship with one count of
unlawful sexual conduct with a minor who was over 13 but less than 16 years of
age, a violation of R.C. 2907.04, a fourth-degree felony. Blankenship pled guilty
and was evaluated by a psychologist as part of the presentence investigation
ordered by the court. The psychologist characterized Blankenship as showing
none of the characteristics of what he considers a sex offender despite his
commission of a sex offense and concluded that Blankenship’s risk of reoffending
was low. Yet while the presentence investigation was pending, Blankenship
contacted the victim and lied to the psychologist about it. As a result, the court
postponed sentencing and ordered a reevaluation. After the new evaluation, the
psychologist’s opinion and recommendations remained the same.
{¶ 4} The trial court then sentenced Blankenship to five years of
community control with conditions, including a six-month jail sentence, which
was suspended after Blankenship served 12 days. Blankenship was also
designated a Tier II sex offender/child-victim offender, R.C. 2950.01(F)(1)(b),
and pursuant to R.C. 2950.04(A)(2) was required to register in person with the
sheriff of the county where he establishes residency within three days of
coming into that county, as well as with the sheriff of the county in which he
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attends school or in which he is employed immediately upon coming into
that county. He is also required to verify his residence address, place of
employment, and place of education in person every 180 days for 25 years.
R.C. 2950.06(B)(2) and 2950.07(B)(2).
{¶ 5} On appeal, Blankenship argued that these Tier II sex–offender
requirements imposed upon him violated the prohibition of the Eighth
Amendment to the United States Constitution against cruel and unusual
punishment. Blankenship stressed the psychologist’s opinion to support the
contention that he was not a sex offender. He argued that his relationship with
M.H. was “caring” and that the circumstances showed no aggravating facts. He
contended that a 25-year registration period would serve no legitimate
penological purpose in his case.
{¶ 6} The Second District, in a two-to-one decision, affirmed the judgment
of the trial court and concluded that Blankenship’s sentence did not violate the
Eighth Amendment.
{¶ 7} Blankenship appealed to this court, and we accepted jurisdiction on
his sole proposition of law: “Mandatory sex offender classifications under Senate
Bill 10 constitute cruel and unusual punishment where the classification is grossly
disproportionate to the nature of the offense and character of the offender.” 139
Ohio St.3d 1404, 2014-Ohio-2245, 9 N.E.3d 1062.
{¶ 8} Although the proposition of law refers only to the mandatory sex-
offender classification, Blankenship’s brief also contains numerous references to
the registration requirements. Indeed, it would be difficult to discuss the impact
of being classified as a sex offender without referring to those mandatory
requirements. We therefore will address both classification and registration in our
discussion.
II. Analysis
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{¶ 9} We have already set forth the history of Ohio’s sex-registration
legislation in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. 933 N.E.2d
753, ¶ 3-28. While classification and registration schemes vary across states, most
states addressing Eighth Amendment challenges to mandatory sex-offender
classification for adults have dismissed those challenges based on their findings
that the registration schemes are remedial rather than punitive.1 We, however,
have held that the enhanced sex-offender reporting and notification requirements
contained in R.C. Chapter 2950 enacted by Am.Sub.S.B. No. 10 (“S.B. 10”) are
punitive in nature: “Following the enactment of S.B. 10, all doubt has been
removed: R.C. Chapter 2950 is punitive.” State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. In addition, we also have held as
unconstitutional the prospective, automatic application of those reporting and
notification requirements to certain juvenile offenders. In re C.P., 131 Ohio St.3d
513, 2012-Ohio-1446, 967 N.E.2d 729.
{¶ 10} Blankenship, although not a juvenile, claims that his classification
and requirement to register as a sex offender violate the Eighth Amendment’s
prohibition against cruel and unusual punishment. He relies heavily on his
psychologist’s opinion that he is not a sex offender. But this reliance is
misplaced because the state statutory scheme provides for automatic
consequences.
1
For cases holding that registration schemes are remedial rather than punitive, see, e.g., Doe v.
Poritz, 142 N.J. 1, 662 A.2d 367 (1995); State v. Joslin, 145 Idaho 75, 175 P.3d 764 (2007);
Meinders v. Weber, 2000 SD 2, 604 N.W.2d 248.
For cases resting on findings that registration requirements do not constitute
punishment, see, e.g., Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010); People v. Adams, 144
Ill.2d 381, 581 N.E.2d 637 (1991); State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App.1990);
Patterson v. State, 985 P.2d 1007 (Alaska App.1999).; In re Alva, 33 Cal.4th 254, 14 Cal.Rptr.3d
811, 92 P.3d 311 (2004).
For a case finding that the registration requirements are punishment but do not constitute
cruel and unusual punishment, see State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012).
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{¶ 11} Ohio’s current sex-registration statutes create a three-tier
classification system. Unlike the earlier “labeling” classification system under
Megan’s Law, 146 Ohio Laws, Part II, 2560, in which a judge could consider the
characteristics of an offender before sentencing, “tier” classification is based
solely upon the offense for which a person is convicted and the judge has no
discretion to modify the classification. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108, ¶ 20.
{¶ 12} Blankenship pled guilty to a violation of R.C. 2907.04, unlawful
sexual conduct with a minor. Generally, a violation of R.C. 2907.04 is a fourth-
degree felony and prohibits sexual conduct between a person 18 or older and
someone 13, 14, or 15 years old. R.C. 2907.04(A) and (B)(1). The offense is a
third-degree felony if the age span is ten or more years, R.C. 2907.04(B)(3), and
becomes a second-degree felony if the offender has certain prior offenses, R.C.
2907.04(B)(4). The offense is reduced to a misdemeanor of the first degree if the
age span is less than four years. R.C. 2907.04(B)(2).
{¶ 13} For purposes of R.C. Chapter 2950, certain violations of R.C.
2907.04 qualify as “sexually oriented offenses.” R.C. 2950.01(A)(2) and (3). A
“sex offender” is a person who is convicted of “any sexually oriented offense.”
R.C. 2950.01(B)(1).
{¶ 14} A person convicted of violating R.C. 2907.04 is a Tier I sex
offender if the offender was less than four years older than the victim, there was
no consent, and the offender has not been convicted of or pled guilty to certain
sex offenses. R.C. 2950.01(E)(1)(b). But if the offender is at least four years
older than the victim, or if the offender is less than four years older but has been
convicted of or pled guilty to certain sex offenses, the classification is raised to
that of Tier II sex offender. R.C. 2950.01(F)(1)(b).
{¶ 15} Blankenship was convicted of the fourth-degree felony version of
R.C. 2907.04 in this case because he was six years older than M.H., the person
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with whom he engaged in sexual conduct, and he did not have prior offenses. His
Tier II classification requires him to register and verify his address semiannually
for 25 years as specified by R.C. 2950.06(B)(2) and 2950.07(B)(2).
{¶ 16} Blankenship bases his claim of cruel and unusual punishment on
both the Eighth Amendment to the United States Constitution and Article I,
Section 9 of the Ohio Constitution. We will therefore examine his claim under
both federal and state law.
A. Federal Law
{¶ 17} The Eighth Amendment to the United States Constitution states,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” “The Amendment proscribes ‘all excessive
punishments, as well as cruel and unusual punishments that may or may not
be excessive.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641,
171 L.Ed.2d 525 (2008), quoting Atkins v. Virginia, 536 U.S. 304, 311, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002), fn. 7. It is elementary that the Eighth
Amendment prohibits torture. Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345(1878). But the bulk of Eighth Amendment jurisprudence concerns not whether a
particular punishment constitutes torture, but whether it is disproportionate to the
crime. The central precept is that “punishment for crime should be graduated and
proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30
S.Ct. 544, 54 L.Ed. 793 (1910).
{¶ 18} The United States Supreme Court has observed that its cases
addressing proportionality fall into two categories. The first involves “challenges
to the length of term-of-years sentences given all the circumstances in a particular
case.” Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825(2010). The second involves categorical restrictions that, until Graham, applied
only in capital cases. The second approach traditionally involves “cases in which
the Court implements the proportionality standard by certain categorical
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restrictions on the death penalty.” Id. These restrictions include a prohibition on
the death penalty for nonhomicide crimes, for defendants who committed the
crime before the age of 18, and for defendants with low mental functioning. See
Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008)
(prohibiting death as a punishment for nonhomicide crimes); Roper v. Simmons,
543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (prohibiting the death
penalty for defendants who committed crimes before turning 18); Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting
death for persons with low intellectual functioning).
{¶ 19} In Graham v. Florida, the court applied the categorical approach,
as in Roper, Kennedy, and Atkins, and concluded that the Eighth Amendment
prohibits the imposition of life without parole on a juvenile who did not commit
homicide. But Blankenship does not fit into this categorical restriction—he was
not a juvenile when he committed his sex offense. He does not identify, either in
briefing or at oral argument, any other group into which he fits where a
categorical rule has been established making requirements such as Tier II
registration cruel and unusual. At best, Blankenship suggests that we adopt a
categorical prohibition of Tier II registration for young adult offenders who are
shown to present a low risk of recidivism, who have a consensual relationship
with the victim, and whose psychological profile shows none of the features
typical of sex offenders. For an Eighth Amendment analysis, we must determine
whether a new categorical rule is constitutionally mandated.
{¶ 20} When considering Eighth Amendment challenges and whether to
adopt a categorical rule, the U.S. Supreme Court engages in a two-step process:
The Court first considers “objective indicia of society’s standards,
as expressed in legislative enactments and state practice” to
determine whether there is a national consensus against the
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sentencing practice at issue. Roper, supra, at 572 * * *. Next,
guided by “the standards elaborated by controlling precedents and
by the Court’s own understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose,” Kennedy, 554
U.S., at 421 * * *, the Court must determine in the exercise of its
own independent judgment whether the punishment in question
violates the Constitution. Roper, supra, at 572 * * *.
Graham, 560 U.S. at 61, 130 S.Ct. 2011, 176 L.Ed.2d 825.
{¶ 21} In analyzing Blankenship’s challenge to the registration
requirements imposed on him, we must bear in mind the overriding principle that
“[t]he concept of proportionality is central to the Eighth Amendment.” Id. at 59.
Thus, the goal of the two-step process described above is to determine whether
Blankenship’s punishment is proportionate to his crimes.
{¶ 22} Because Blankenship concedes the lack of a national consensus
against lengthy sex-offender registration for individuals like himself, we need not
discuss the first step. With regard to the second step, a review undertaken in our
own independent judgment, there are three considerations: (1) the culpability of
the offender in light of his crime and characteristics, (2) the severity of the
punishment in question, (3) and the penological justification. Graham at 67. We
now consider these three areas.
Culpability of the Offender
{¶ 23} The first consideration in the independent review is assessing the
culpability of the offender. As a matter of law, Blankenship’s conviction for a
sexually oriented offense makes him a sex offender. R.C. 2950.01(B)(1).
Blankenship urges us to consider the analysis in In re C.P. regarding juveniles as
equally applicable to young adult offenders like himself who do not have a
criminal history and who pose no real threat to the community. But in C.P., we
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emphasized that Ohio’s system for juveniles assumes that “children are not as
culpable for their acts as adults.” 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729, ¶ 39. We are not persuaded that this longstanding distinction
between the culpability of juveniles and adults, even young adults, should be set
aside in this case. Blankenship is an adult and thus In re C.P. does not apply to
him.
{¶ 24} Blankenship was himself 21 when the relationship began, and he
knew that M.H. was only 15; she told him so over the Internet. Despite his
awareness of her minority, he had intercourse with her twice. He also contacted
her while his case was pending in direct violation of the court’s presentence order.
These facts show Blankenship’s culpability in engaging in sexual conduct when
the offender “knows the other person is thirteen years of age or older but less than
sixteen years of age.” R.C. 2907.04(A). It is true that if M.H. had been only one
year older, she would have been at the age of consent and there would have been
no crime. But the legislature has chosen to draw the line at a difference of four
years between the offender and the victim. Blankenship was six years older than
M.H. and is therefore deemed more culpable and more deserving of punishment.
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Severity of the Punishment
{¶ 25} The second consideration is the severity of the punishment.
Blankenship, an adult, had a sexual relationship with a 15-year-old, fully aware of
her age. He could have received 18 months in prison as a maximum sentence.
R.C. 2929.14(A)(4) (fourth-degree felony). Instead, he was placed on community
control and served 12 days of a six-month sentence. If M.H. had been three years
younger, Blankenship would have faced an indefinite prison term of a minimum
of ten years to a maximum term of life. R.C. 2907.02(B); 2971.03(B)(1)(a).
These legislative gradations according to the victim’s age reflect society’s
judgment that the culpability of the offender increases as the age of the victim
decreases. There is no support in the law for Blankenship’s contention that the
maturity level of a “young adult” of 21 is similar to that of a juvenile and that his
culpability should be reduced accordingly.
{¶ 26} In addition, we cannot say that the state has no interest in
protecting minors who may otherwise “consent” to sexual activity. Consent plays
no role and is not a viable defense in determining whether a person has violated
R.C. 2907.04. A child under 16 is simply not legally capable of consent to sexual
conduct with an adult.
{¶ 27} Tier II registration requirements associated with a conviction for
unlawful sexual conduct with a minor are not so severe as to amount to cruel and
unusual punishment under the federal Constitution. Blankenship’s obligation to
register in person in any county where he establishes residency, goes to school, or
takes a job and to verify his residence address, place of employment, and place of
education in person every 180 days for 25 years is burdensome but does not reach
that constitutional level. Our research reveals no case in which similar
registration and verification requirements have been held to be cruel and unusual
punishment. Blankenship has not persuaded us to extend the law in the manner
he suggests.
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Penological justifications
{¶ 28} The final consideration in an Eighth Amendment analysis is to
assess the penological justifications for the sentencing practice. Graham, 560
U.S. at 67, 130 S.Ct. 2011, 176 L.Ed.2d 825. The stated purpose of S.B. 10 and
its registration and community-notification requirements is “to protect the safety
and general welfare of the people of this state.” R.C. 2950.02(B).
{¶ 29} We acknowledge that sex-offender registration schemes have been
criticized on the ground that they do not actually serve the intended purpose of
community protection. See, e.g., McLeod, Regulating Sexual Harm: Strangers,
Intimates, and Social Institutional Reform, 102 Calif.L.Rev. 1553, 1573-1580
(2014); Rodriguez, The Sex Offender Under the Bridge: Has Megan’s Law Run
Amok?, 62 Rutgers L.Rev. 1023, 1052-1056 (2010); Yung, The Emerging
Criminal War on Sex Offenders, 45 Harv.C.R.-C.L.L.Rev. 435, 453-459 (2010).
{¶ 30} Yet we also note that while registration provisions such as the one
at issue have been criticized by some as unjustified, the penological grounds for
imposing such requirements are still accepted in many quarters and are justified in
part based upon the perceived high rate of recidivism and resistance to treatment
among sex offenders. Proponents consider registration to be a more economical
method of monitoring and preventing recidivism than the costly alternative of
imprisonment. Wilkes, Sex Offender Registration and Community Notification
Laws: Will These Laws Survive?, 37 U.Rich.L.Rev. 1245, 1251-1252 (2003). We
cannot say that the requirements of semiannual address registration and
verification are so unjustified as to constitute cruel and unusual punishment.
B. Ohio Law
{¶ 31} The Ohio Constitution, Article I, Section 9, contains its own
prohibition against cruel and unusual punishment. While it contains the same
language as the United States Constitution (“[e]xcessive bail shall not be required,
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nor excessive fines imposed; nor cruel and unusual punishments inflicted”), it
provides unique protection for Ohioans:
The Ohio Constitution is a document of independent force.
In the areas of individual rights and civil liberties, the
United States Constitution, where applicable to the states,
provides a floor below which state court decisions may not
fall. As long as state courts provide at least as much
protection as the United States Supreme Court has provided
in its interpretation of the federal Bill of Rights, state courts
are unrestricted in according greater civil liberties and
protections to individuals and groups.
Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of
the syllabus. Thus, Article I, Section 9 of the Ohio Constitution provides
protection independent of the protection provided by the Eighth Amendment.
{¶ 32} We have recognized that cases involving cruel and unusual
punishments are rare, “limited to those involving sanctions which under the
circumstances would be considered shocking to any reasonable person.”
McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). As with the
Eighth Amendment, lack of proportionality is a key factor: “A punishment does
not violate the constitutional prohibition against cruel and unusual punishments, if
it be not so greatly disproportionate to the offense as to shock the sense of justice
of the community.” State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972),
paragraph three of the syllabus.
{¶ 33} Our review is focused on the portion of Blankenship’s sentence
that imposes an obligation on him to comply with the registration and address-
verification requirements for Tier II sex offenders. We have established that the
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enhanced sex-offender reporting and notification requirements enacted by S.B. 10
are punitive in nature, Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, ¶ 16, and violate the Eighth Amendment when applied to certain
juveniles, In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. But
we have not considered whether the punishment is cruel and unusual when
applied to adults.
{¶ 34} Blankenship cites In re C.P., in which we were asked to address
whether lifetime registration for a new class of juvenile sex-offender registrants
constituted cruel and unusual punishment under the federal and state
Constitutions. We examined each separately, and in holding that R.C. 2152.86
violated the Ohio Constitution, we stated,
S.B. 10 forces registration and notification
requirements into a juvenile system where rehabilitation is
paramount, confidentiality is elemental, and individualized
treatment from judges is essential. The public punishments
required by R.C. 2152.86 are automatic, lifelong, and
contrary to the rehabilitative goals of the juvenile system.
We conclude that they “shock the sense of justice of the
community” and thus violate Ohio’s prohibition against
cruel and unusual punishments.
While In re C.P. was pending, the First District Court of Appeals determined that
the Tier II registration requirements associated with a conviction for unlawful
sexual conduct with a minor did not amount to cruel and unusual punishment.
State v. Bradley, 1st Dist. Hamilton No. C-100833, 2011-Ohio-6266. As a point
of comparison, the First District relied upon State v. Hairston, 118 Ohio St.3d
289, 2008-Ohio-2338, 888 N.E.2d 1073, a case in which we upheld a prison
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sentence of 134 years against a claim of cruel and unusual punishment. After
examining the facts in its own case, the First District concluded,
We cannot say that the requirement that Bradley
register as a sexual offender for 25 years and verify his
information every 180 days constitutes one of those rare
cases where the punishment is so extreme as to be grossly
disproportionate to the crime or that it is shocking to a
reasonable person and to the community’s sense of justice.
Id. at ¶ 13.
{¶ 35} In similar fashion, Blankenship has not overcome the hurdle of
showing that his punishment is cruel or unusual. The concerns that led us to
conclude that the requirement of lifetime registration for certain juvenile
offenders violated Ohio’s prohibition against cruel and unusual punishment in In
re C.P. are largely absent when dealing with an adult who engaged in unlawful
sexual conduct with a minor.
{¶ 36} We are also mindful that “reviewing courts should grant substantial
deference to the broad authority that legislatures possess in determining the types
and limits of punishments for crimes.” Weitbrecht at 373. The General Assembly
has seen fit to impose registration sanctions in cases involving sex offenses to
protect the public. Indeed, such sanctions now are the norm. People v.
Temelkoski, 307 Mich.App. 241, 262, 859 N.W.2d 742 (2014) (“all 50 states and
the federal government have enacted some form of sex offender registration and
notification provisions”). They cannot be said to be shocking to the sense of
justice of the community.
{¶ 37} The stated legislative intent of the General Assembly in enacting
S.B.10 is to protect the public. While some may question whether the registration
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requirements are the best way to further public safety,2 questions concerning the
wisdom of legislation are for the legislature. “ ‘[W]hether the court agrees with it
in that particular or not is of no consequence. * * * If the legislature has the
constitutional power to enact a law, no matter whether the law be wise or
otherwise it is no concern of the court.’ ” (Ellipsis sic.) Butler v. Jordan, 92 Ohio
St.3d 354, 376, 750 N.E.2d 554 (2001), quoting State Bd. of Health v. Greenville,
86 Ohio St. 1, 20, 98 N.E. 1019 (1912). It is undisputed that the General
Assembly is “ ‘the ultimate arbiter of public policy’ ” and the only branch of
government charged with fulfilling that role. Arbino v. Johnson & Johnson, 116
Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel.
Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98
Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. Blankenship has not met
his burden to show that Tier II sex-offender registration requirements are cruel
and unusual punishment.
III. Conclusion
{¶ 38} We hold that the registration and address-verification requirements
for Tier II offenders under R.C. Chapter 2950 do not constitute cruel and unusual
punishment in violation of either the Eighth Amendment to the United States
Constitution or Article I, Section 9 of the Ohio Constitution. The Tier II
registration requirements do not meet the high burden of being so extreme as to be
grossly disproportionate to the crime or shocking to a reasonable person. We
therefore affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, J., concur.
O’DONNELL and KENNEDY, JJ., concur in judgment only.
PFEIFER and O’NEILL, JJ., dissent.
2
See, e.g., Miller, Let the Burden Fit the Crime: Extending Proportionality Review to Sex
Offenders, 123 Yale L.J. 1607 (2014).
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_________________
O’DONNELL, J., concurring in judgment only.
{¶ 39} I concur with the majority’s judgment to affirm the court of
appeals, because there is no merit to Travis Blankenship’s claim that his
classification as a Tier II sex offender subjects him to cruel and unusual
punishment. It clearly does not.
{¶ 40} In my view, the Eighth Amendment does not apply to this case,
because I believe that sex offender registration in Ohio is a civil, nonpunitive
requirement. Ohio’s current sex offender registration statute, 2007 Am.Sub.S.B.
No. 10 (“S.B. 10”), does not substantially differ from prior versions of the statute
upheld in State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), State v.
Williams, 88 Ohio St.3d 513, 528, 728 N.E.2d 342 (2000), State v. Hayden, 96
Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, and State v. Ferguson, 120 Ohio
St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, cases recognizing that sex offender
registration is not a form of punishment.
{¶ 41} The General Assembly enacted S.B. 10 in compliance with the
federal Adam Walsh Child Protection and Safety Act, 42 U.S.C. 16901 et seq. To
avoid losing federal funds allocated to Ohio, the legislature followed a federal
mandate to designate offenders and classify them as Tier I, II, or III sex offenders
based on the offense of conviction and to require them to register for the durations
and frequencies specified by federal law.
{¶ 42} In direct conflict with this court’s recent decisions in State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, and In re C.P.,
131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, every federal circuit court
to consider the issue has recognized that the federal sex offender registration
scheme which Ohio adopted does not impose additional criminal punishment on
sex offenders. In fact, in its most recent pronouncement, the United States
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Supreme Court described the federal sex offender registration law as establishing
“[a] civil registration requirement” that “is eminently reasonable.” United States
v. Kebodeaux, ___ U.S. ___, 133 S.Ct. 2496, 2503, 186 L.Ed.2d 540 (2013).
{¶ 43} Until the decisions in Williams and C.P., Ohio recognized
registration as a civil requirement, not punitive or criminal in nature. Instead of
diametrically changing Ohio law, we should follow our precedent and established
federal law and hold that classifying Blankenship as a Tier II sex offender does
not punish him for an offense and therefore cannot violate the United States
Constitution’s prohibition against cruel and unusual punishment.
Ohio History of Sex Offender Registration
{¶ 44} A review of the prior sex offender registration statutes, 1996
Am.Sub.H.B. No. 180 (“H.B. 180”), 146 Ohio Laws, Part II, 2560, subsequently
amended by 2003 Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558,
and our decisions interpreting them sheds light on whether S.B. 10 imposes
punishment on sex offenders.
Megan’s Law
{¶ 45} In 1996, the General Assembly enacted H.B. 180, better known as
“Megan’s Law.” That act revised R.C. Chapter 2950 and established a
comprehensive system of sex-offender classification and registration, which
applied regardless of when the underlying sex offense had been committed.
Former R.C. 2950.04(A), 146 Ohio Laws, Part II, at 2609-2610. The act also
provided criminal penalties for failing to comply with its registration
requirements. Former R.C. 2950.99, id. at 2634-2635.
{¶ 46} Megan’s Law divided sex offenders into three categories: sexually
oriented offenders, habitual sex offenders, and sexual predators. Former R.C.
R.C. 2950.09, id. at 2618. It provided in former R.C. 2950.06(B)(2) and
2950.07(B)(3), id. at 2613 and 2617, that anyone convicted of a sexually oriented
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offense would be subject to annual reporting requirements for a period of ten
years.
{¶ 47} Having convicted an offender of a sexually oriented offense, if a
judge determined that the offender had a previous conviction for a sexually
oriented offense, then former R.C. 2950.09(E), 146 Ohio Laws, Part II, at 2623-
2624, required the court to adjudicate the offender a habitual sex offender, thereby
subjecting the offender to annual reporting for 20 years pursuant to former R.C.
2950.06(B)(2) and 2950.07(B)(2), id. at 2613, 2617.
{¶ 48} The General Assembly reserved the most stringent reporting
requirements for offenders who had been adjudicated by a court to be a sexual
predator. Megan’s Law required sexual predators to report every 90 days for life,
former R.C. 2950.06(B)(1) and 2950.07(B)(2), 146 Ohio Laws, Part II, at 2613,
2616-2617, unless the court removed that classification pursuant to former R.C.
2950.09(D), 146 Ohio Laws, Part II, at 2621-2623.
{¶ 49} Megan’s Law required all sex offenders to register with the sheriff
in the county in which they resided or were temporarily domiciled for more than
seven days. Former R.C. 2950.04(A), id. at 2609. It required sex offenders to
provide a current residence address, the name and address of any employer, any
other information required by the Bureau of Criminal Identification and
Investigation, and a photograph. Former R.C. 2950.04(C), id. at 2610.
Additionally, the law required sexual predators to provide the license plate
number of each motor vehicle owned by the offender or registered in the
offender’s name. Id.Challenges to Megan’s Law
{¶ 50} We considered several challenges to the constitutionality of
Megan’s Law, and each time our analysis focused on whether the requirements
the law enacted were punitive or civil in nature.
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{¶ 51} In State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, we
considered the constitutionality of Megan’s Law as applied to offenders who
committed sexually oriented offenses before the effective date of the statute. We
held that the law did not violate Article II, Section 28 of the Ohio Constitution,
the Retroactivity Clause, because the registration requirements provided in the act
were necessary to achieve the legislature’s remedial purpose of protecting the
public from sexual offenders. Id. at 412-413. Although we recognized that
Megan’s Law increased the frequency and duration of reporting beyond that
required by prior law, id. at 411, we determined that these provisions only “us[ed]
past events to establish current status” and constituted “de minimis procedural
requirements” necessary to achieve the purpose of the act, id. at 412.
{¶ 52} Additionally, in Cook, we rejected an ex post facto challenge to
Megan’s Law, explaining that the statute did not contain any language expressing
an intent to punish sex offenders for prior conduct, id. at 417, nor could it be
considered to be punitive in practical effect, id. at 423. Rather, the statutory
scheme furthered the stated legislative purpose of protecting the public from
sexual offenders. Id. While weighing the seven nonexhaustive guideposts set
forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d
644 (1963),3 for deciding whether a statute is punitive for purposes of federal law,
we determined that the act did not impose a new affirmative disability or further
3
These guideposts include
“[w]hether the sanction involves an affirmative disability or restraint,
whether it has historically been regarded as a punishment, whether it comes into
play only on a finding of scienter, whether its operation will promote the
traditional aims of punishment-retribution and deterrence, whether the behavior
to which it applies is already a crime, whether an alternative purpose to which it
may rationally be connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned * * * .”
(Footnotes omitted, brackets and ellipsis sic.) Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570,
quoting Mendoza-Martinez, 372 U.S. at 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644.
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the traditional aims of punishment, but imposed an inconvenience comparable to
the renewal of a driver’s license. Cook at 418, 420. Because we concluded that the
registration requirements were not punitive, but remedial, in nature, we held that
the retrospective application of Megan’s Law did not violate the Ex Post Facto
Clause of the United States Constitution. Id. at 423.
{¶ 53} Again, in State v. Williams, 88 Ohio St.3d at 528, 728 N.E.2d 342,
relying on Cook, we held that because Megan’s Law did not impose punishment,
it necessarily did not violate the Double Jeopardy Clauses of the Constitutions of
the United States and the state of Ohio.
{¶ 54} And in State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773
N.E.2d 502, we considered whether Megan’s Law violated an offender’s right to
procedural due process by imposing a sex offender classification and registration
requirement without a judicial hearing. Adhering to our holdings in Cook and
Williams, we determined that an offender suffers neither bodily restraint nor other
punishment as a result of the de minimis registration requirements imposed by
Megan’s Law, and therefore due process did not require a court to conduct a
hearing before finding a defendant to be a sexually oriented offender. Id. at
¶ 14-15, 18.
S.B. 5
{¶ 55} In 2003, the General Assembly enacted S.B. 5, amending Megan’s
Law to provide, inter alia, that regardless of when a sexually oriented offense
occurred, sex offenders had to personally register with the sheriff of the county in
which they (a) resided or were temporarily domiciled for more than five days, (b)
attended school, and/or (c) worked for more than 14 days or for an aggregate of
30 days or more in a calendar year. Former R.C. 2950.04(A)(1), 150 Ohio Laws,
Part IV, at 6657-6658. The act imposed a duty upon sex offenders to report not
only their home address but also the address of their school and place of
employment. Former R.C. 2950.06(A), id. at 6673. Adult offenders classified as
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sexual predators could no longer petition to remove the designation. Former R.C.
2950.07(B)(3) and 2950.09(D)(1), id. at 6683, 6696. Additionally, the act
provided that any information provided by sex offenders to the county sheriff was
available for public inspection, and it directed the attorney general to establish an
Internet database providing this information to the public. Former R.C. 2950.081,
2950.13(A)(11), id. at 6686, 6728-6729.
Challenges to S.B. 5
{¶ 56} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, we considered whether Megan’s Law remained a civil, regulatory
scheme following its amendment by S.B. 5. The issue in Wilson concerned
whether an appellate court should apply a civil or criminal standard of review to a
trial court decision not to classify an offender as a sexual predator. Following
Cook and Williams, we held that sex-offender-classification proceedings were
civil in nature, not criminal. Id. at ¶ 32. We concluded that courts reviewing the
outcome of sexual-predator-classification hearings should apply the civil
manifest-weight-of-the-evidence standard and affirm a trial court judgment if it
was supported by some competent, credible evidence. Wilson at ¶ 32.
{¶ 57} In State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896
N.E.2d 110, we addressed retroactivity and ex post facto challenges to R.C.
Chapter 2950, as amended by S.B. 5. Although we recognized that the law “may
pose significant and often harsh consequences for offenders,” we explained that
the amendments enacted by S.B. 5 had not “transmogrified the remedial statute
into a punitive one.” Id. at ¶ 32. Further, we acknowledged the General
Assembly’s “clear reaffirmation of an intent to protect the public from sex
offenders” and concluded that “the more burdensome registration requirements
* * * were not born of a desire to punish.” Id. at ¶ 35-36. Recognizing that “
‘consequences as drastic as deportation, deprivation of one’s livelihood, and
termination of financial support have not been considered sufficient to transform
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an avowedly regulatory measure into a punitive one,’ ” we determined that the
additional burdens imposed by S.B. 5 did not amount to punishment. Id. at ¶ 39,
quoting Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir.1997). Accordingly, we held
that the amendments enacted by S.B. 5 did not violate the Retroactivity Clause of
the Ohio Constitution. Id. at ¶ 40. Furthermore, based on our conclusion that
R.C. Chapter 2950 established a civil, remedial regulatory scheme, we rejected
Ferguson’s related ex post facto challenge. Id. at ¶ 43.
The Adam Walsh Act and SORNA
{¶ 58} On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act (“Adam Walsh Act”) with the expressed intent “[t]o
protect children from sexual exploitation and violent crime, to prevent child abuse
and child pornography, to promote Internet safety, and to honor the memory of
Adam Walsh and other child crime victims.” Title of the Adam Walsh Child
Protection and Safety Act, Pub.L. No. 109-248, 120 Stat. 587. This legislation
established the Sex Offender Registration and Notification Act (“SORNA”) with
the purpose of creating uniform national classification and reporting standards to
protect the public from sex offenders and child-victim-oriented offenders. 42
U.S.C. 16901 et seq.
{¶ 59} Congress designed SORNA “to make more uniform what had
remained ‘a patchwork of federal and 50 individual state registration systems,’ ”
United States v. Kebodeaux, ___ U.S. ___, 133 S.Ct. at 2505, 186 L.Ed.2d 540,
quoting Reynolds v. United States, 565 U.S. ___, 132 S.Ct. 975, 978, 181 L.Ed.2d
935 (2012), in order to eliminate “ ‘loopholes and deficiencies’ that had resulted
in an estimated 100,000 sex offenders becoming ‘missing’ or ‘lost,’ ” id., quoting
H.Rep. No. 109-218(I), at 20, 26 (2005). See S.Rep. No. 109–369, at 16–17
(2006). Congress encouraged the states to adopt uniform sex offender registration
laws, 42 U.S.C. 16912, or risk losing federal funds otherwise allocated to them,
42 U.S.C. 16925.
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{¶ 60} SORNA requires sex offenders to be classified within three tiers
based solely on the offense of conviction. 42 U.S.C. 16911. Tier I sex offenders
must register annually for 15 years, Tier II sex offenders must register every six
months for 25 years, and Tier III sex offenders must register every three months
for life. 42 U.S.C. 16915(a); 42 U.S.C. 16916. SORNA also requires sex
offenders to update their registration within three business days of changing a
residence, employment, or student status, and to provide personal information
such as home, work, and school addresses, descriptions of vehicles, a current
photograph, and a set of finger and palm prints and a DNA sample. 42 U.S.C.
16913; 42 U.S.C. 16914. These requirements apply to federal sex offenses and
include offenders who had already completed their sentences. 42 U.S.C. 16913,
42 U.S.C. 16913(d); 28 C.F.R. 72.3. And Congress made it a federal offense
punishable by up to ten years in prison to knowingly fail to register as required by
SORNA. 18 U.S.C. 2250.
{¶ 61} The United States Supreme Court has explained that these
provisions “reflect Congress’ determination that the statute, changed in respect to
frequency, penalties, and other details, will keep track of more offenders and will
encourage States themselves to adopt its uniform standards.” Kebodeaux, ___
U.S. ___, 133 S.Ct. at 2505, 186 L.Ed.2d 540. Characterizing SORNA as
providing a “civil registration requirement,” the court stated that “Congress could
reasonably conclude that registration requirements applied to federal sex
offenders after their release can help protect the public from those federal sex
offenders and alleviate public safety concerns.” Id. at 2503. It further indicated
that “sex offender registration has ‘a legitimate nonpunitive purpose of “public
safety, which is advanced by alerting the public to the risk of sex offenders in
their community.” ’ ” Id., quoting Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct.
1140, 155 L.Ed.2d 164 (2003), quoting Doe I v. Otte, 259 F.3d 979, 991 (9th
Cir.2001).
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Challenges to SORNA
{¶ 62} Challenges to the constitutionality of SORNA have been
consistently rejected, and every federal circuit court to consider the issue has held
that SORNA’s sex offender registration requirements are not punishment. See
United States v. Parks, 698 F.3d 1, 5-7 (1st Cir.2012); United States v. Guzman,
591 F.3d 83, 94 (2d Cir.2010); United States v. Shenandoah, 595 F.3d 151, 159
(3d Cir.2010), abrogated on other grounds, Reynolds, 565 U.S. ___, 132 S.Ct.
975, 181 L.Ed.2d 935; United States v. Under Seal, 709 F.3d 257, 266 (4th
Cir.2013); United States v. Young, 585 F.3d 199, 204-205 (5th Cir.2009); United
States v. Felts, 674 F.3d 599, 606 (6th Cir.2012); United States v. Leach, 639 F.3d
769, 773 (7th Cir.2011); United States v. May, 535 F.3d 912, 919-920 (8th
Cir.2008), abrogated on other grounds, Reynolds; United States v. Shoulder, 738
F.3d 948, 953 (9th Cir.2013); United States v. Lawrance, 548 F.3d 1329, 1333-
1334 (10th Cir.2008); United States v. W.B.H., 664 F.3d 848, 859-860 (11th
Cir.2011); see also Anderson v. Holder, 647 F.3d 1165, 1169 (D.C.Cir.2011)
(concluding that the District of Columbia’s Sex Offender Registration Act is civil
and nonpunitive).
S.B. 10
{¶ 63} This understanding that SORNA imposes only a civil registration
requirement is an essential part of the analysis here, because the Ohio General
Assembly enacted S.B. 10 in support of Congress’s effort to adopt a national,
uniform system of sex offender registration and notification and in response to the
federal mandate to comply with SORNA or risk losing federal funds allocated to
Ohio.
{¶ 64} The General Assembly established a civil, remedial system
designed to “protect the safety and general welfare of the people of this state” and
to “assur[e] public protection,” R.C. 2950.02(B), in light of its determination that
“[s]ex offenders and child-victim offenders pose a risk of engaging in further
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sexually abusive behavior even after being released from * * * confinement,”
R.C. 2950.02(A)(2). From the General Assembly’s decision to adopt the
Congressional SORNA, which by definition is civil in nature, and its legislative
finding that sex-offender-registration laws are necessary to protect the public
because sex offenders pose a present danger—not because additional punishment
should be inflicted on them—we can infer its intent to establish sex offender
registration as a civil, remedial system.
{¶ 65} In accordance with SORNA, S.B. 10 replaced Ohio’s prior sex
offender classification scheme with a three-tiered system classifying offenders
based on the offense of conviction: an adult Tier I offender is required to register
every year for 15 years; an adult Tier II offender is required to register every 180
days for 25 years; and a Tier III offender is required to register every 90 days for
life. R.C. 2950.01(E) through (G), 2950.06(B), and 2950.07(B). S.B. 10 also
requires offenders to personally register with the sheriff of the county or counties
in which they reside, attend school, and work, R.C. 2950.04(A)(2) and
2950.041(A)(2), and the offender must give at least 20 days’ advance notice of a
change of residence or school address and provide notice of a change of
employment address, vehicle information, e-mail address, Internet identifier, or
telephone number within three days of the change, R.C. 2950.05(A) and (D).
{¶ 66} The S.B. 10 provisions do not significantly depart from the civil,
remedial registration requirements we have previously upheld, and they are
equivalent to the regulations adopted by Congress and held by federal circuit
courts to be nonpunitive in nature.
{¶ 67} In contrast to a plethora of established case authority, this court
concluded in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
1108, that the amendments enacted by S.B. 10 rendered R.C. Chapter 2950
punitive. Id. at ¶ 16. The court noted that sex offender registration is based solely
on the offense of conviction, without regard to an offender’s future
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dangerousness; that the offender is required to register in person in the county of
residence, the county of employments, and the county of school or college
attendance; and that the duration of the registration requirements had been
extended. Id. at ¶ 20. And the court stated, “No one change compels our
conclusion that S.B. 10 is punitive. It is a matter of degree * * *.” Id. at ¶ 21. And
relying on the assumption that sex offender registration is now punishment, the
court in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 58,
held that the Eighth Amendment forbids the automatic imposition of lifetime sex
offender registration and notification requirements on juveniles.
{¶ 68} But none of the changes identified by Williams rendered sex
offender registration in Ohio punitive in intent or effect. The purpose of
classifying offenders into tiers based on the nature of the conviction is not to
impose punishment for that conviction; rather, it is intended to facilitate a national
system of sex offender registration that simplifies the process of classification
based solely on the offense committed either in this state or another jurisdiction
for the purpose of protecting the public from the risk of recidivism.
{¶ 69} Further, linking the duty to register to a conviction for a sex offense
without first requiring an individual assessment of dangerousness or risk of
recidivism does not make registration punitive. The United States Supreme Court,
in analyzing whether Alaska’s sex offender registration statute imposed
punishment on sex offenders, indicated that “[t]he State's determination to
legislate with respect to convicted sex offenders as a class, rather than require
individual determination of their dangerousness, does not make the statute a
punishment * * *.” Smith, 538 U.S. at 104, 123 S.Ct. 1140, 155 L.Ed.2d 164.
The court further noted,
Alaska could conclude that a conviction for a sex offense provides
evidence of substantial risk of recidivism. The legislature's
findings are consistent with grave concerns over the high rate of
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recidivism among convicted sex offenders and their dangerousness
as a class. The risk of recidivism posed by sex offenders is
“frightening and high.” McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct.
2017, 153 L.Ed.2d 47 (2002) * * *.
Smith at 103. Thus, the court concluded, a state is permitted to make “reasonable
categorical judgments that conviction of specified crimes should entail particular
regulatory consequences.” Id.{¶ 70} Nor does the duration of the registration requirements render them
punishment. The Supreme Court rejected this argument in Smith, explaining that
“[t]he duration of the [Alaska] reporting requirements is not excessive. Empirical
research on child molesters, for instance, has shown that, ‘[c]ontrary to
conventional wisdom, most reoffenses do not occur within the first several years
after release,’ but may occur ‘as late as 20 years following release.’ ” Id. at 104,
quoting R. Prentky, R. Knight & A. Lee, Child Sexual Molestation: Research
Issues, National Institute of Justice Research Report, 14 (1997). Thus, the
duration of registration duties in Ohio corresponds to a continuing risk sex
offenders pose to the public.
{¶ 71} Lastly, in-person registration is not a form of punishment. In Cook,
83 Ohio St.3d at 418, 700 N.E.2d 570, we explained that “[r]egistering may cause
some inconvenience for offenders. However, the inconvenience is comparable to
renewing a driver's license. Thus, we find that the inconvenience of registration is
a de minimis administrative requirement.” And the Supreme Court in Smith
rejected the notion that registration is akin to probation or supervised release.
Smith, 538 U.S. at 101, 123 S.Ct. 1140, 155 L.Ed.2d 164.
{¶ 72} The reasons advanced in Williams for deciding that S.B. 10 is
punishment do not withstand scrutiny. Sex offender registration is not
punishment, and therefore we need not decide whether classifying Blankenship as
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a Tier II sex offender with a duty to report every 180 days for 25 years is
proportionate to his offense of having consensual sex with a minor. Questions
regarding whether this registration duty is necessary and appropriate in these
circumstances do not involve the Eighth Amendment, but rather, these are matters
of policy that are the province of the General Assembly, the arbiter of public
policy in Ohio.
Conclusion
{¶ 73} There are no significant differences between Megan’s Law, which
this court characterized as a civil, remedial enactment designed to protect the
welfare and safety of the public, and S.B. 10, which the legislature enacted to
conform with the registration and notification requirements established by federal
law. In accordance with our prior precedent and in agreement with the federal
circuit courts, I would overrule our decisions in Williams and C.P. and hold that
sex offender registration is not punishment for an offense. Accordingly, I concur
in the judgment to affirm the court of appeals based on this analysis.
KENNEDY, J., concurs in the foregoing opinion.
_________________
PFEIFER, J., dissenting.
{¶ 74} The framework within which an issue is presented can unduly
influence the outcome. For example, if you ask a stadium full of people whether
requiring a Tier II sex offender to comply with certain reporting requirements
shocks their sense of justice, you are unlikely to receive a single affirmative
response. But, as more information is provided, the likely response can be
expected to change.
{¶ 75} Assume the same question but add that the offender was an adult
male who had sex with a 15-year-old girl. Requiring registration and address
verification will still seem reasonable, unlikely to shock a community’s sense of
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justice. Even so, some might ask about the age of the offender and the specifics
of the reporting requirements.
{¶ 76} Assume the same question as above but add that the offender was a
21-year-old male, that the 15-year-old girl consented, and that the registration and
address-verification requirements must be complied with every six months for 25
years, and now we are at the threshold. Many will see the consent as a mitigating
factor, many will see the relatively modest age difference as a mitigating factor,
and many will see the 25-year time period as unnecessarily long. As the majority
notes, and I acknowledge, these potentially mitigating factors are not statutorily
relevant, but they are nevertheless constitutionally relevant.
{¶ 77} Assume further that the offender has been determined by a
psychologist to have none of the characteristics of a sex offender and to have a
low risk of reoffending. There would be many who would be shocked at the
severity and length of the punishment, i.e., the reporting requirements.
{¶ 78} Assume all of the above and add that the offender could have
received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was
sentenced to six months in prison (the shortest term possible), and that a judge
released him after he had served a mere 12 days. Now the community’s sense of
justice has been violated. Few would deem it appropriate to require a person who
committed a crime that warranted a 12-day sentence to comply with reporting
requirements every six months for the next 25 years.
{¶ 79} The touchstone of federal cruel-and-unusual-punishment analysis is
that the punishment must be proportional to the crime. Weems v. United States,
217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). The case before us fails
this standard. The current statutory scheme does not allow discretion on the part
of the sentencing judge. Instead, all similarly situated offenders (meaning those
with a similar age differential and no prior record as a sex offender) are punished
according to a one-size-fits-all standard. There is no proportionality. The
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sentencing judge has discretion as to imposing a prison term, but not as to the
registration and address-verification requirements. Offenders warranting a 12-day
sentence have the same reporting requirements as those warranting an 18-month
sentence. Offenders considered at low risk of reoffending have the same
reporting requirements as those considered at high risk of reoffending. This lack
of proportionality is constitutionally flawed.
{¶ 80} Ohio’s constitutional standard is somewhat different: a punishment
is cruel and unusual when it “would be considered shocking to any reasonable
person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). It
is clear to me that reasonable people would consider it shocking to require a
person whose crime warranted a 12-day sentence to submit to twice-a-year
reporting requirements for a 25-year period.
{¶ 81} This court has determined that the registration and address-
verification requirements for Tier II sex offenders are punitive. State v. Williams,
129 Ohio St.3d 3474, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. Today we should
declare that in certain circumstances, the 25-year reporting requirements are
onerous enough to constitute cruel and unusual punishment. I do not believe that
the registration and address-verification requirements at issue in this case are
cruel and unusual with respect to all Tier II sex offenders. But as applied to
Blankenship, who was deemed to warrant a prison sentence of only 12 days, who
has a low risk of reoffending, and who possesses none of the characteristics of a
sex offender, the requirement to register and verify his address every six months
for the next 25 years “would be considered shocking to any reasonable person.”
McDougle at 70.
{¶ 82} I would reverse the judgment of the court of appeals. I dissent.
O’NEILL, J., concurs in the foregoing opinion.
_________________
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O’NEILL, J., dissenting.
{¶ 83} Respectfully, I dissent. This case presents yet another example of
the one-size-fits-all mentality that increasingly dictates criminal sentencing in
Ohio. Judicial discretion has again been pushed aside.
{¶ 84} A well-qualified psychologist provided the only evidence in this
case that remotely touches on the question of this defendant’s threat to society.
He stated unequivocally that the risk of reoffending was low. Yet, this 21-year-
old offender will pay for his youthful indiscretion for a quarter of a century. Until
he is 46 years old, Blankenship will be required to contact the sheriff in his home
town every six months. If he moves, he must alert the authorities in his new town
that a convicted sex criminal has moved into Pleasantville. R.C. 2950.05(A).
That information will be available to the public on the Internet. R.C.
2950.081(A). In this age of instant Internet chat rooms, imagine the future for his
children when the mother’s network alerts all the grade-school children to avoid
anyone who lives at 123 Elm Street. These requirements fall directly within the
definition of the phrase “cruel and unusual.”
{¶ 85} I believe that imposing the Tier II sex-offender/child-victim-
offender classification and its attendant registration requirements upon this
defendant is a punishment grossly disproportionate to his crime. The trial court
followed the law as it is written, and that is the problem. When sex offenders
present a real threat to the public, the law indeed deters further crime, punishes
the offender, and provides information the public can use to protect itself from
offenders of the worst sort. In those cases, when there is a classic sex offender,
the registration process that started with Megan’s Law and continued in the Adam
Walsh Act is not grossly disproportionate to the crime. However, this is not one
of those cases. And yet this trial court was required to impose the penalty as
prescribed. No discretion needed or permitted here.
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{¶ 86} Blankenship has never been convicted of a prior felony or a crime
of violence. A psychologist considered the facts of the crime, met with
Blankenship multiple times, determined that Blankenship’s diagnostic tests
indicated a low potential for reoffending, and he exhibited no psychopathology or
sociopathy. The doctor further opined that Blankenship’s conduct was not
evidence of pedophilia or hebephilia. Rather, Blankenship exhibited genuine
emotions toward the juvenile. The psychologist reported to the trial court that
treatment specific to sex offenders is unethical for a man like Blankenship with no
disorder to treat. The doctor did recommend psychotherapy to help Blankenship
to cope with and move on from the loss of the relationship with the minor female,
to educate him about appropriate healthy relationships, and to address cognitive
distortions he used to rationalize his conduct. Blankenship consistently expressed
remorse.
{¶ 87} For offenders like Blankenship, these registration requirements
guarantee an unnecessarily long term of public humiliation only. And they
effectively destroy any hope of leading a successful and productive life from that
point forward. This mandatory registration requirement will limit Blankenship’s
employability for most jobs, will prevent him from engaging in any meaningful,
productive relationship with the community around him, and will essentially label
him as a pariah. He will have to lay his shame at the feet of everyone he
encounters: employers, neighbors, love interests, friends, co-workers, and others.
And for what? The public gains little of value to offset the unusual punishment
because it is perfectly clear from this record that Blankenship was psychologically
capable of learning his lesson the first time. And the record in this matter reflects
that he has learned right from wrong. In that sense, the harsh punishment of
sharing his personal information with the world for 25 years is grossly
disproportionate to the crime. The mandatory registration requirement applied
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January Term, 2015
here, even though consistent with mandatory Ohio law, is constitutionally
prohibited as it imposes a cruel and unusual punishment.
PFEIFER, J. concurs in the foregoing opinion.
_________________
D. Andrew Wilson, Clark County Prosecuting Attorney, and Ryan A.
Saunders, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie,
Assistant Public Defender, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Chief Counsel, Appellate Division, urging affirmance for amicus curiae
Franklin County Prosecuting Attorney.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio
Prosecuting Attorneys Association.
_________________
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