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Tuesday, June 1, 2010



Original Article


I mentioned a couple of weeks ago that the Ohio Supreme Court still hasn’t come down with its decision in State v. Bodyke, the case challenging the constitutionality of the Adam Walsh Act, despite having held oral argument on the case back in November. Oral argument in another case last week, State v. Richey, brought some of those issues back up again, and perhaps gave a glimpse of the various justices’ thinking.

Richey pled no contest to sexual imposition, a third degree misdemeanor, back in 2006. Two years later, Richey found himself reclassified as a Tier I sex offender under the AWA, and asked that his plea be vacated.

Most of the attacks on AWA has centered on the due process and ex post facto problems in changing the rules after the game’s been played: people who’d not been subject to any registration requirements, or had completed them, now found themselves subject to new requirements. There’s another argument, though, based on the provision in the US Constitution which prohibits a state from enacting legislation which “impairs the obligations of a contract ”: A plea bargain is a contract between the parties, and additional terms can’t be imposed after the contract is entered into. Richey went a little further and argued that he could not have made a “knowing, intelligent, and voluntary” guilty plea if the legislature could subsequently amend the law to impose new and more dire consequences upon that plea.

There may be some basis for that argument; I know of one case where a pre-AWA plea was entered into with the express stipulation that the defendant would not be classified as a sex offender. Unfortunately, Richey’s case doesn’t present nearly as solid a basis for that claim: he was classified as a sex offender under the pre-AWA law. Justice O’Connor bailed out Richey’s lawyer in oral argument by suggesting that his best argument was not that AWA lengthened Richey’s reporting requirements, but that it dramatically increased the penalty for failing to registration: under the old law, such failure was the same degree as the underlying crime, which here was a third-degree misdemeanor. Under the AWA, failing to register is at least a fourth-degree felony.

O’Connor’s comment is interesting for another reason. Justice O’Donnell argued that the trial judge was under no obligation to advise Richey of anything regarding registration as a sex offender, since registration is regarded as “remedial,” not punitive. In fact, that argument has been the lynchpin for upholding past sex offender laws, in both the Ohio and US Supreme Courts: you don’t get into the due process and ex post facto arguments if you’re talking about a civil, not criminal, matter.

Of course, the argument that prohibiting somebody from living where they want, requiring them to show up at the sheriff’s office every now and then and putting them in prison if they don’t, and putting their pictures up on the Internet and declaring them pariahs isn’t “punitive” has become increasingly tenuous. Everybody bought the first time the Ohio Supreme Court looked at sex offender laws in State v. Cook in 1998, but by the time the Court examined the immediate precursor to AWA a decade later in State v. Ferguson, three justices — Lanzinger, Lundberg Stratton, and Pfeifer — had jumped off the “it’s only remedial” boat. Put O’Connor in that camp, and you’ve got the four votes to limit AWA to prospective application.

There’s another card in play here: the US Supreme Court’s decision two months in Padilla v. Kentucky (discussed here), where the Court held that a lawyer may have rendered ineffective assistance by telling his client that there would be no immigration consequences to a guilty plea, when in fact it resulted in deportation proceedings against the client. It’s not a perfect fit — the voluntary nature of the plea is at issue in Richey, while Padilla concerns ineffective assistance of counsel — but there’s room for arguing some overlap, as Justice Lundberg Stratton brought up. Deportation is unquestionably a civil proceeding, and although Ohio has a law which specifically requires a non-citizen to be advised there might be immigration consequences following a plea, many states do not, and in the absence of such a law those consequences are deemed “collateral,” and do not have to be part of the plea colloquy. Yet the civil nature of the proceedings and their collateral status did not deter the Padilla court from concluding that the defendant had to be properly advised of them.

What’s more, the Padilla opinion noted that the immigration consequences could be far more severe than those of the underlying conviction, an argument which applies with equal force to Richey’s situation, as noted by Justice Lanzinger: the requirement registering as a sex offender for the next fifteen years, and facing imprisonment for 6 to 18 months if he doesn’t, is much more significant than the 60 days he served in jail for the sexual imposition.

As I said, Richey’s case isn’t the best set of facts for this argument, and ordinarily I wouldn’t want to predict the outcome. But I think there’s a decent chance of the whole case being mooted. As Justice O’Connor pointed out in the first minute of oral argument, if Bodyke holds that AWA can’t be applied retroactively, that takes care of Richey’s problem. Given some of the comments in Richey, that might just happen.

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