THE STATE OF OHIO, APPELLEE, v. HUBBARD, APPELLANT.
Nos. 2020-0544 and 2020-0625
SUPREME COURT OF OHIO
Decided October 21, 2021
2021-Ohio-3710
APPEAL from and CERTIFIED by the Court of Appeals for Butler County, No. CA2019-05-086, 2020-Ohio-856.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Hubbard., Slip Opinion No. 2021-Ohio-3710.]
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 other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-3710
THE STATE OF OHIO, APPELLEE, v. HUBBARD, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Hubbard., Slip Opinion No. 2021-Ohio-3710.]
(Nos. 2020-0544 and 2020-0625—Submitted April 14, 2021—Decided October 21, 2021.)
APPEAL from and CERTIFIED by the Court of Appeals for Butler County, No. CA2019-05-086, 2020-Ohio-856.
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{¶ 1} In this discretionary appeal from a judgment of the Twelfth District Court of Appeals, which also certified a conflict between its judgment and a judgment of the Fifth District Court of Appeals, we consider whether the retroactive application of “Sierah’s Law,”
{¶ 2} The Retroactivity Clause states that the “general assembly shall have no power to pass retroactive laws.” This court has held that a statute is unconstitutionally retroactive if (1) the General Assembly expressly made the statute retroactive and (2) the statute is substantive—impairing vested, substantial rights or imposing new burdens, duties, obligations, or liabilities as to a past transaction, such as a retroactive increase in punishment for a criminal offense. State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 27, 32, 34; State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 8-9.
{¶ 3} Sierah’s Law presumptively requires offenders who are convicted of or plead guilty to aggravated murder, murder, voluntary manslaughter, kidnapping, or second-degree-felony abduction, or an attempt to commit, conspiracy to commit, or complicity in committing any of those offenses, to enroll in Ohio’s “Violent Offender Database” for a period of ten years.
{¶ 4} We have recognized that registration schemes such as Sierah’s Law apply retroactively when the duty to register attaches to conduct committed prior to the effective date of the statute. See,
{¶ 5} For these reasons, we determine that the application of Sierah’s Law to conduct that occurred prior to its effective date does not violate the Retroactivity Clause of
Facts and Procedural History
{¶ 6} On March 7, 2019, appellant, Miquan D. Hubbard, pleaded guilty in the Butler County Common Pleas Court to one count of murder with a firearm specification for the August 2018 killing of Jaraius Gilbert Jr. Before Hubbard was sentenced on April 30, 2019, the trial court informed him that he would be subject to registration as a violent offender under Sierah’s Law, which had gone into effect on March 20, 2019, through the enactment of 2018 Sub.S.B. No. 231. Hubbard objected, asserting that Sierah’s Law violated the Ohio Constitution’s Retroactivity Clause. The trial court overruled the objection, notified Hubbard of his duty to register, and imposed a sentence of 16 years to life in prison and a $250 fine.
{¶ 7} The Twelfth District Court of Appeals affirmed Hubbard’s convictions and sentence. The appellate court determined that Sierah’s Law does not affect a substantive right, because it does not retroactively increase the punishment for an eligible offense and classification as a violent offender is merely a collateral consequence of the offender’s criminal conduct. 2020-Ohio-856, 146 N.E.3d 593, ¶ 32. And after reviewing our caselaw considering the constitutionality of other registration schemes that had been subjected to retroactivity challenges, the court held that Sierah’s Law does not “impose a new burden in the constitutional sense,” id. at ¶ 37, and therefore it may be applied to conduct that occurred prior to its effective date, id.
{¶ 8} The Twelfth District certified that its judgment conflicts with the judgment of the Fifth District in State v. Jarvis, 2020-Ohio-1127, 152 N.E.3d 1225 (5th Dist.), in which the court of appeals held that the Ohio Constitution prohibits the state from applying Sierah’s Law retroactively to an offender whose conduct occurred prior to the legislation’s effective date, id. at ¶ 37. We determined that a conflict exists between the judgments and agreed to answer the following question of law:
“Does retroactive application of the violent offender database enrollment statutes codified in sections 2903.41 through 2903.44 of the Revised Code, commonly known as ‘Sierah’s Law,’ violate the Retroactivity Clause of the Ohio Constitution, as set forth in Article II, Section 28 of the Ohio Constitution?”
159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d 568, quoting 12th Dist. Butler No. CA2019-05-086 (May 14, 2020).
{¶ 9} We also accepted Hubbard’s discretionary appeal to review the following proposition of law: “The retroactive application of Senate Bill 231—Sierah’s Law—is unconstitutional as applied to offenses committed prior to the effective date of the statute.
Positions of the Parties
{¶ 10} Hubbard maintains that Sierah’s Law imposes new burdens, duties, obligations, and liabilities that did not exist at the time that he committed his offense and that the requirement to register as a violent offender is punitive and affects a substantial right, in violation of the Ohio Constitution’s Retroactivity Clause. He points out that Sierah’s Law is codified in Ohio’s criminal code, that the General Assembly did not express a remedial purpose for it, that its registration duties attach to the commission of a criminal offense, that the failure to comply with those duties subjects the registrant to criminal prosecution and the possibility of being required to register for life, and that personally identifiable information in the registration documents is accessible to the public through a public-records request. The application of Sierah’s Law, Hubbard asserts, “removes an offender’s expectation of sentence finality” and exposes registrants “to continued and unwarranted suspicion of future conduct.”
{¶ 11} The state responds that Sierah’s Law neither impairs a vested right nor imposes a burden or disability based on a prior transaction, because a felony offender has no reasonable expectation that his or her conviction will never be the subject of future regulation. The state argues that the registration duties imposed by Sierah’s Law are less burdensome in comparison to the Revised Code’s sex-offender-registration schemes that were previously reviewed by this court—the duty to register as a violent offender does not attach automatically, the registrant has to verify his or her information less frequently and in only one county, and the scheme involves no residential restrictions, publicly accessible databases, or community-notification provisions. For those reasons, the state maintains, Sierah’s Law is remedial and may be applied retroactively without violating the Retroactivity Clause.
Law and Analysis
The Prohibition Against Retroactive Laws
{¶ 12} “ ‘Retroactive laws and retrospective application of laws have received the near universal distrust of civilizations.’ ” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 9, quoting Van Fossen v. Babcock &Wilcox Co., 36 Ohio St.3d 100, 104, 522 N.E.2d 489 (1988), superseded by statute on other grounds as stated in Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044 (1998). “ ‘[T]he presumption against retroactive legislation is deeply rooted * * * and embodies a legal doctrine centuries older than our Republic.’ ” Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We have explained that “ ‘[t]he prohibition against retroactive laws * * * is a protection for the individual who is assured that he may rely upon the law as it is written and not later be subject to new obligations thereby.’ ” (Ellipsis added in White.) White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, at ¶ 34, quoting Lakengren, Inc. v. Kosydar, 44 Ohio St.2d 199, 201, 339 N.E.2d 814 (1975).
{¶ 14} To determine whether a statute is unconstitutionally retroactive, we apply a two-part test asking (1) whether the General Assembly expressly made the statute retroactive and, if so, (2) whether the statute is substantive or remedial. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 8. We explained in Williams that
“[i]t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. * * * Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.”
(Brackets added in Williams.) Id. at ¶ 9, quoting Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 37.
{¶ 15} Our decision in Williams did not depart from those principles to incorporate caselaw construing the
{¶ 16} It is unreasonable to construe Williams as adopting a sea-change from our precedent and as overruling decades of our caselaw without this court’s actually saying that it was doing so. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 12 (“we are not bound by any perceived implications that may have been inferred from” a prior decision); State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952), paragraph one of the syllabus (“A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication”). Consequently, we will apply the Retroactivity Clause as we have consistently interpreted it in criminal cases.
{¶ 17} The parties here agree that the General Assembly expressly made Sierah’s Law retroactive, and we recognize that this court has consistently treated statutory registration laws as having retroactive application when the duty to register attaches to a conviction for conduct that occurred prior to the statutory scheme’s effective date. See, e.g., Cook, 83 Ohio St.3d at 410, 700 N.E.2d 570; Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896
{¶ 18} Our focus, then, is on whether Sierah’s Law impairs vested, substantial rights or imposes new burdens, duties, obligations, or liabilities as to a past transaction. In conducting that analysis, we have understood that the Retroactivity Clause “prohibits a retroactive increase in punishment for a criminal offense.” White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, at ¶ 32.
Sierah’s Law
{¶ 19} The General Assembly enacted Sierah’s Law to require the Ohio Bureau of Criminal Investigation to establish and maintain the Violent Offender Database and to make it available to federal, state, and local law-enforcement officers.
{¶ 20} A registration-eligible offender is required to provide to the sheriff of his or her county (1) the offender’s full name and any alias used by the offender, (2) the offender’s residence address and the name and address of any place of employment or school that the offender attends, (3) the offender’s Social Security number and any driver’s license or state-identification card number, (4) the offense committed, (5) the license-plate number, vehicle-identification number, and description of any vehicle owned or operated by the offender or registered in the offender’s name, and (6) a description of the offender’s scars, tattoos, or other distinguishing marks.
{¶ 21} The Violent Offender Database is not available to the public and may be accessed only by federal, state, and local law-enforcement officers.
{¶ 22} Sierah’s Law establishes a presumption that a violent offender must enroll in the database in person, reenroll annually in person, and provide notice of any change of address for ten years after the offender’s initial enrollment.
{¶ 23} A violent offender’s reckless failure to comply with Sierah’s Law is a fifth-degree felony.
Sierah’s Law Is Not Unconstitutionally Retroactive
{¶ 24} In State ex rel. Matz v. Brown, this court recognized that “a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration, if it did not create a vested right, created at least a reasonable expectation of finality.” 37 Ohio St.3d 279, 281, 525 N.E.2d 805 (1988). We stated, “Except with regard to constitutional protections against ex post facto laws, * * * felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.” Id. at 281-282. And we explained that “[p]ast felonious conduct is not such a transaction or consideration” that creates a reasonable expectation of finality. Id. at 282. Applying that reasoning, we concluded that a statute that retrospectively denied a felony offender eligibility for victims-of-crime compensation was not unconstitutionally retroactive. Id.
{¶ 25} In Cook, we followed our decision in Matz in upholding changes to Ohio’s sex-offender-registration scheme enacted by “Megan’s Law,” 1996 Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560. Cook, 83 Ohio St.3d at 412-413, 700 N.E.2d 570. Relevant to our retroactivity analysis in Cook, Megan’s Law imposed new registration duties on offenders not previously subject to the requirements, increased the frequency of mandatory address verification, and established community-notification provisions for some offenders. See id. at 407-409, 411. This court reiterated that felony offenders generally have no right to expect that their convictions will not be the subject of future legislation, id. at 412, and held that the registration and address-verification requirements were “de minimis procedural requirements that are necessary to achieve the goals of [Megan’s Law],” id., that the community-notification provisions did “not impinge on any reasonable expectation of finality [that the] defendant may have had with regard to his conviction,” id. at 414, and that “the General Assembly could permissibly impose the[] additional obligations without infringing on a substantive right,” id.
{¶ 26} Enacted in 2003, Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, amended Megan’s Law to require sex offenders to personally register with the sheriff in their county of residence, the county in which they attend school, and the county in which they work, made the sexual-predator designation permanent, and established a publicly available Internet database of sex-offender registrants. See Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 4, 9. In Ferguson, we rejected the notion that “the General Assembly ha[d] transmogrified the remedial statute into a punitive one by
{¶ 27} Ohio’s “Adam Walsh Act,” which was enacted through 2007 Am.Sub.S.B. No. 10, repealed and replaced Megan’s Law and classified sex offenders automatically based on their offense of conviction: a Tier I offender is now required to register every year for 15 years; a 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.
{¶ 28} In Williams, this court observed that under the Adam Walsh Act, “sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places. * * * [A]ll the registration requirements apply without regard to the future dangerousness of the sex offender * * * and * * * are based solely on the fact of a conviction.” 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 20. This court also noted that “[t]he statutory scheme has changed dramatically since this court described the registration process imposed on sex offenders as an inconvenience ‘comparable to renewing a driver’s license.’ And it has changed markedly since this court concluded in Ferguson that
{¶ 29} A comparison of the statutory registry schemes that we upheld in Cook and Ferguson and invalidated in part in Williams demonstrates that Sierah’s Law is not unconstitutionally retroactive. The duty to enroll as a violent offender is far less burdensome than the registration duties imposed by Megan’s Law, S.B. 5, or the Adam Walsh Act. In comparison to sex offenders, a violent offender has to register less frequently and in fewer places. And in contrast to a sex offender’s registration duties under the Adam Walsh Act, a violent offender’s duty to enroll annually for ten years under Sierah’s Law is far less burdensome than the requirement to register either once a year for 15 years, every 180 days for 25 years, or every 90 days for life. And unlike the database established under S.B. 5 and retained in the Adam Walsh Act, the violent-offender database itself is not a public record, cannot be accessed by the public over the Internet,
Sierah’s Law Does Not Impose Punishment
{¶ 30} Nor does Sierah’s Law violate the Retroactivity Clause by establishing “a retroactive increase in punishment for a criminal offense.” White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, at ¶ 32. As we said in State v. Casalicchio, determining whether a statute imposes a criminal penalty is a question of statutory construction. 58 Ohio St.3d 178, 182, 569 N.E.2d 916 (1991).
{¶ 31} The statutory language of Sierah’s Law does not indicate that it was enacted to inflict punishment. Importantly, the General Assembly did not codify Sierah’s Law in
{¶ 32} Offender-registration laws are “but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled.” Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). By establishing a violent-offender database that is accessible only by law enforcement and not by the broader community, Sierah’s Law evinces the public-safety purpose to collect information about violent offenders and facilitate its being shared with investigative authorities at the federal, state, and local levels. And “where a legislative restriction ‘is an incident of the State’s power to protect the health and safety of its citizens,’ it will be considered ‘as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.’ ” Smith at 93-94, quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). The General Assembly therefore did not intend for Sierah’s Law to inflict additional punishment on violent offenders.
{¶ 33} Nonetheless, we have recognized that a statutory scheme may be “so punitive in purpose or effect as to transform what was clearly intended to be a civil remedy into a criminal penalty.” State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 18. We have noted that the United States Supreme Court has provided useful guideposts in determining whether a statute in effect imposes punishment:
“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as 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 are all relevant to the inquiry, and may point in differing directions.”
Casalicchio, 58 Ohio St.3d at 182, 569 N.E.2d 916, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Because these factors are an interpretative tool to gauge legislative intent “in various constitutional contexts, * * * they are ‘neither exhaustive nor dispositive.’ ” Smith, 538 U.S. at 97, 123 S.Ct. 1140, 155 L.Ed.2d 164, quoting United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). We apply these factors because they are useful, not because an analysis under the Retroactivity Clause (or the Ex Post Facto Clause) requires them.
{¶ 34} The database-enrollment requirements of Sierah’s Law do not impose an affirmative disability or physical restraint. As the Sixth Circuit Court of Appeals has explained, “[a]n ‘affirmative disability or restraint’ generally is some sanction ‘approaching the “infamous punishment” of imprisonment.’ ” Herbert v. Billy, 160 F.3d 1131, 1137 (6th Cir.1998), quoting Hudson v. United States, 522 U.S. 93, 104, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), quoting Flemming at 617. A requirement to appear and disclose information neither prevents a violent offender from doing something—such as living near schools or working with children—nor physically restrains the offender. Rather, Sierah’s Law simply imposes a duty to appear annually at the sheriff’s office, enroll in the registry, and keep the required information up to date. In Cook, we rejected the notion that requiring a sex offender to register in person is an affirmative disability or restraint, explaining 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.” 83 Ohio St.3d at 418, 700 N.E.2d 570. This is not “glib minimization,” dissenting opinion at ¶ 93, because the enrollment duties imposed by Sierah’s Law merely require a violent offender to appear in person at a local office, fill out paperwork, and be photographed—something that other Ohioans do every day. That may happen more than once a year (e.g., if the violent offender changes residences), and the General Assembly has indicated that registration is sufficiently important to make the failure to register a felony, but it does not mean that Sierah’s Law imposes an affirmative disability or restraint.
{¶ 35} And the fact that the failure to enroll in the registry is a criminal offense does not make the duty to enroll punitive. Laws often impose duties on certain classes of people and enforce those duties through criminal penalties. See, e.g.,
{¶ 36} The duty to enroll in the Violent Offender Database does not resemble traditional forms of punishment. The United States Supreme Court has rejected the notion that in-person registration is akin to probation, supervised release, or public shaming. Smith, 538 U.S. at 98, 101, 123 S.Ct. 1140, 155 L.Ed.2d 164. Unlike probation or supervised release, Sierah’s Law does not impose any conditions on how a violent offender may live his or her life, compare
{¶ 37} And as the Supreme Court pointed out in Smith, “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Smith at 99. Therefore, “anecdotal evidence showing the indignities, shame, social ostracism, and very real fear that people subject to reporting and notification laws suffer,” dissenting opinion at ¶ 102, is irrelevant in this case. Sierah’s Law does not provide for community notification or a searchable public database of offenders, as Ohio’s sex-offender-registration laws do. See
{¶ 38} Further, the requirement to enroll in the database does not attach based on a finding of the offender’s scienter—
{¶ 40} Lastly, the requirement to register once a year is not excessive in relation to the regulatory purpose of allowing law enforcement to know the location and description of violent offenders in order to ensure public safety. The de minimis, administrative requirement to appear at the sheriff’s office once a year is “reasonably necessary for the intended purpose of protecting the public,” id. at 423, as Sierah’s Law was designed to do.
{¶ 41} And the risk to public safety posed by violent offenders is not imaginary. The United States Sentencing Commission’s 2019 report to Congress on recidivism among federal violent offenders found that “offenders who engaged in violent criminal activity * * * generally recidivated at a higher rate, more quickly, and for more serious crimes than non-violent offenders.” United States Sentencing Commission, Recidivism Among Federal Violent Offenders 3 (2019), available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190124_Recidivism_Violence.pdf (last accessed Oct. 12, 2021) [https://perma.cc/UK8F-KVRL]. The report found that “[o]f those violent offenders who recidivated, the median time from release to the first recidivism event was 18 months.” Id. More than 60 percent of violent offenders were arrested within 8 years of their release, and for 40 percent of the violent offenders who recidivated, the arrest was for a violent offense. Id. at 3-4, 13. Further, “[v]iolent offenders recidivated at twice the rate of non-violent offenders among those released after age 40.” Id. It is therefore not useful to consider the recidivism rates of only those who committed homicide (who typically receive longer sentences and “age-out” of committing additional violent crimes) or sexually oriented offenses (which are defined to include both violent and nonviolent offenses, see
{¶ 42} The United States Supreme Court has determined that a state may reasonably regulate offenders as a class and require registration without first conducting an individualized assessment of future dangerousness. Smith, 538 U.S. at 104, 123 S.Ct. 1140, 155 L.Ed.2d 164. Given the high rate of recidivism for violent offenders as a class, a requirement to enroll in the registry for ten years, which may be extended for a violent offender who violates the conditions of his or her release or commits another violent crime, is not excessive in relation to Sierah’s Law’s remedial purpose to protect the public from violent offenders after their release from prison.
Conclusion
{¶ 43} The Retroactivity Clause of
{¶ 44} Fidelity to precedent “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery, 474 U.S. 254, 265-266, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Respect for our prior decisions is therefore “a foundation stone of the rule of law, necessary to ensure that legal rules develop ‘in a principled
and intelligible fashion.’ ” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014), quoting Vasquez at 265.
{¶ 45} Consistent with decades of precedent that guides our analysis today, we determine that the application of Sierah’s Law to violent offenders who committed their offenses prior to its effective date does not violate the Retroactivity Clause of the Ohio Constitution. We affirm the judgment of the Twelfth District Court of Appeals.
Judgment affirmed.
FISCHER and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
STEWART, J., dissents, with an opinion joined by DONNELLY and BRUNNER, JJ.
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STEWART, J., dissenting.
{¶ 46} Because I disagree with this court’s application of the Retroactivity Clause of
I. Ohio’s Retroactivity Clause Prohibits Ex Post Facto Laws
{¶ 47} This court’s jurisprudence on
{¶ 48} A full ex post facto analysis requires the application of the “intent-effects” test. See Smith v. Doe, 538 U.S. 84, 92-93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Under that test, a court is required to determine whether the legislature intended to enact a civil, remedial law or a criminal, punitive one. Id. at 92-93. “If the intention of the legislature was to impose punishment, that ends the inquiry.” Id. at 92. But if the legislature intended to enact a civil, remedial law, then the court must also examine whether the law is so punitive in purpose or effect as to override the legislature’s intent to enact a remedial law. Id. A new law that intentionally punishes criminal behavior that predated the law or that upon scrutiny is found to have the purpose or effect of punishing such criminal behavior is ex post facto and thus unconstitutional. Id. at 92-93, 97.
{¶ 49} The reason that our caselaw regarding retroactive criminal legislation is confusing is that this court has consistently failed to apply the full ex post facto intent-effects test to claims that a new law violates the Ohio Constitution’s Retroactivity Clause by increasing punishment for criminal conduct that predated the law’s enactment. Instead, this court has generally applied the intent-effects test only when a defendant has explicitly claimed that a law is punitive and violates the
A. The History of Ohio’s Retroactivity Clause
{¶ 50} The Ohio Constitution’s Retroactivity Clause was drafted in its present form at the Ohio Constitutional Convention of 1850-1851, and it became part of the Ohio Constitution of 1851 upon its ratification. The Ohio Constitution of 1802 had declared that “[n]o ex post facto law, nor any law impairing the validity of contracts, shall ever be made.”
{¶ 51} The 1850-1851 convention debates show conclusively that the term “retroactive laws” broadly encompasses both retroactive criminal laws—that is, ex post facto laws—and retroactive civil laws. 1 Official Reports of the Debates and Proceedings of the Ohio State Convention, Called to Alter, Revise or Amend the Constitution of the State 247-249 (1851). The provision at issue here was first introduced to the delegates as follows: “The General Assembly shall have no power to pass retro-active laws, or laws impairing the obligations of contracts or their remedies.” Id. at 232. Immediately upon its introduction, one delegate moved to strike the whole section. Id. That delegate noted that it was possible that he did not comprehend “exactly what was intended by the term retro-active,” but it seemed to him that the
{¶ 52} Not every delegate to the 1850-1851 convention was a lawyer. However, some delegates were lawyers and explained that the term “ex post facto” generally referred to only retroactive criminal laws, whereas retroactive civil laws were generally referred to simply as “retro-active.” Id. at 233-234. Eventually, another delegate proposed replacing the word “retro-active” with the term “ex post facto,” thus preserving the legislature’s ability to pass curative civil laws. Id. At that point, Charles Reemelin, one of the leading architects of Ohio’s constitution,1 interjected in defense of the provision as proposed. Id. at 235. Reemelin explained that the committee that wrote the provision, of which he was a member, had paid considerable attention to the language used in the provision and that the word “retro-active” was a “mere literal translation of the Latin ‘ex post facto.’ ” (Emphasis sic.) Id. Indeed, “[h]e [had] found this word[, retro-active,] in the constitution of almost every State in the union” at that time. Id. Reemelin then expressed that
if the [objecting delegates] liked the Latin terms better, it was a mere matter of taste; but for himself he preferred the English. If the Latin were better than the English, and the English did not satisfy the [objecting delegates], he would not object to putting in the Latin on top of the English in order to make the signification as full and complete as possible.
Id.
{¶ 53} Shortly thereafter, a different delegate interjected and asked Reemelin whether “the term ‘retro-active’ was understood to be confined to criminal affairs, and not to extend to civil remedies.” Id. Reemelin unhesitatingly declared, in terms that any textualist could appreciate, that “[t]he section could certainly speak for itself. Retro-active is a comprehensive term; it includes all such laws.” (Emphasis sic.) Id.
{¶ 54} Although the delegates continued to debate other aspects of the provision, there seems to have been little further debate on whether the term “retro-active laws” included by implication ex post facto laws—that is, retroactive criminal laws; Reemelin had apparently cleared up that question categorically. Only the propriety of restricting the legislature’s ability to enact curative civil legislation remained up for debate, and when the convention reconvened that winter, the delegates adopted the provision with the term “retroactive” in place. See
{¶ 55} The debates during the 1850-1851 Constitutional Convention reveal that its delegates understood that ex post facto laws were included within the scope of the Retroactivity Clause’s prohibitions.2 This
facto analysis as part of its Retroactivity Clause analyses in Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, and Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, but then it in effect did do so in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. That inconsistency has unnecessarily caused lasting confusion.
{¶ 56} When we reviewed the constitutionality of Ohio’s “Megan’s Law,” 1996 Am.Sub.H.B. No. 180 (“H.B. 180”), 146 Ohio Laws, Part II, 2560, in Cook, our analysis was two-fold. First, we analyzed whether the new statutory scheme, which became effective in 1997 as part of H.B. 180’s amendments to
{¶ 57} Regarding our analysis under Ohio’s Retroactivity Clause, we first determined that the law was specifically made retroactive. Id. at 410. Next, we considered whether the law was “substantive” or “remedial.”3 Id. at 410-411. It was the argument of amicus curiae Ohio Public Defender that the registration and
notification provisions of Megan’s Law were substantive because they imposed additional burdens with respect to a past transaction. Id. at 411. We rejected that argument, repeating what we said in State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281-282, 525 N.E.2d 805 (1988)—that when no vested right has been created, a later enactment will not burden or attach a new disability to a past transaction in the constitutional sense unless there was at least a reasonable expectation of finality, which is something that a person lacks as to his or her past offenses, with the exception of
{¶ 58} Noticeably absent from the Retroactivity Clause analysis in Cook was any meaningful discussion of the legislature’s intent behind the statute or what, if any, punitive purpose or effect the law might have separate from the legislature’s intent. Instead, we reserved that analysis for the application of the federal
{¶ 59} In reviewing the constitutionality of Megan’s Law under the
{¶ 60} When this court considered in Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, the 2003 amendments to Megan’s Law under Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, similar questions arose. Ferguson argued that the amendments, which took away the trial court’s discretion to amend his sex-offender classification, increased his reporting obligations, and made his personal information widely available to the public, caused the law to cross the line from a civil, remedial law to a criminal, punitive one. Ferguson at ¶ 5, 8-10. He asserted that when retroactively applied, the law violated both Ohio’s Retroactivity Clause and the
{¶ 61} In analyzing the constitutionality of the law under Ohio’s Retroactivity Clause, this court focused almost exclusively on the legislature’s intent behind the law, without giving any consideration to
{¶ 62} This court noted that Ferguson might be “adversely affected by the amended provisions” and that the registration and notification requirements subjected him to public “scorn.” Id. at ¶ 37. Nevertheless, we did not find that aspect of the law to be punitive. See id. Citing again the United States Supreme Court’s decision in Smith, the majority stated, “If a legislative restriction is an incident of the state’s power to protect the health and safety of its citizens, it should be considered as evidencing an intent to exercise that regulatory power rather thanas an intent to punish.” Ferguson at ¶ 37, citing Smith at 92-93. Summarizing its Retroactivity Clause analysis, this court stated that “Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment” and “a statutory scheme that serves a regulatory purpose ‘is not punishment even though it may bear harshly upon one affected.’ ” Id. at ¶ 39, quoting Flemming v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
{¶ 63} Having concluded that the law did not violate Ohio’s Retroactivity Clause, the court then addressed Ferguson’s federal ex post facto claim. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 41-43. We summarily addressed that claim without much discussion on the dubious grounds that this court had consistently determined that Ohio’s sex-offender-registration scheme was civil and remedial4 in nature and thus could not be
{¶ 64} If our decisions in Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, and Ferguson demonstrate anything clearly, it is the unease that this court has when it is confronted with a claim that a law is unconstitutional under Ohio’s Retroactivity Clause because the law punishes criminal conduct that predated it. Rather than taking a measured approach to questions regarding retroactive punishment by scrutinizing both the legislature’s intent and the practical purposes and effects of the law—as other courts have done5—this court’s default is to simply reassert what it said in Matz, 37 Ohio St.3d at 281-282, 525 N.E.2d 805—that a person has no expectation of finality regarding his or her past offenses—before assigning various nonpunitive rationales to the law’s more burdensome, disadvantaging, or punitive aspects. See Cook at 410-414; Ferguson at ¶ 27-40. Naturally, that approach results in the conclusion that the law is remedial and therefore permissibly retroactive. But the approach does little to discern whether the law is, in fact, punitive. And it goes without saying that a law that is punitive in fact is a substantive law, not a remedial one.
B. This Court’s Failure to Apply the Full Ex Post Facto Analysis
{¶ 65} For more than 20 years, this court has shown an obvious hesitation to apply the full ex post facto analysis when considering whether a law violates Ohio’s Retroactivity Clause, beginning with our decision in Cook and extending to today. The reason for that hesitation is hard to
explained above, even the majority in Ferguson recognized that Ohio’s Retroactivity Clause prohibits increased punishment. Ferguson at ¶ 39 (“Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment”). Put another way, it would seem to be black-letter law that a retroactive increase in punishment for a criminal offense is by definition an ex post facto law. See Cook at 414-415. “ ‘[A]ny statute which * * * makes more burdensome the punishment for a crime, after its commission, * * * is prohibited as ex post facto.’ ” (Brackets, second ellipsis, and emphasis added in Beazell.) Id. at 414, quoting Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925); see also Beazell at 167 (noting in the disjunctive three settled instances in which ex post facto applies).
{¶ 66} Whatever the Ferguson majority’s reasons were for not applying a full ex post facto analysis,6 the dissenting opinion admonished the majority for focusing myopically on the legislature’s remedial intent and lack of punitive intent while ignoring the punitive effect of the amendments. See Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 51 (Lanzinger, J., dissenting). The dissenting opinion noted that the permanency of certain sex-offender designations, the more demanding registration and community-notification requirements, the residency restrictions, and the sheriff’s authority to request a landlord’s verification of an offender’s address, among other things, made the law punitive in effect despite the legislature’s avowed remedial purpose for the law. Id. at ¶ 45-46 (Lanzinger, J., dissenting). Specifically, the dissenting opinion stated, “Admittedly, S.B. 5 has a legitimate civil purpose: to promote public safety by
alerting the public to potentially recidivist sex offenders in the community. But its scope notably exceeds this purpose.” (Emphasis added.) Id. at ¶ 58 (Lanzinger, J., dissenting). The dissent applied the Mendoza-Martinez factors and determined that the law was punitive in fact, even if not in its intent. See Ferguson at ¶ 56-61 (Lanzinger, J., dissenting).
{¶ 67} The factor that is often considered the most critical in determining whether a new law in fact punishes past criminal behavior—or in other words is an ex post facto law—is whether the law is excessive in relation to its remedial purpose. See, e.g., Kellar v. Fayetteville Police Dept., 339 Ark. 274, 286, 5 S.W.3d 402 (1999) (“It is the seventh and final factor which weighs most heavily in the balance in Arkansas, as in most other states: the question of whether the [law] is excessive in relation to its alternative purposes”); Commonwealth v. Mullins, 905 A.2d 1009, 2006 PA Super 215, ¶ 16 (Pa.Super.2006) (“Most relevant to the issue in the instant appeal * * * is the last Mendoza-Martinez factor * * *, which involves an examination of excessiveness when determining whether a statute has a punitive effect”); Rodriguez v. State, 93 S.W.3d 60, 75 (Tex.Crim.App.2002) (“[O]f all the * * * factors, this factor cuts most directly to the question of which statutes cross the boundaries of civil sanctions, and which do not. * * * Accordingly, we afford this factor considerable weight in deciding whether the amendments are punitive in-fact”).
{¶ 68} And although this court did not state that it was applying the ex post facto intent-effects test in our 2011 decision in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, that is in effect what we did. In Williams, it is clear that the excessiveness of the law at issue in that case, Ohio’s “Adam Walsh Act,” 2007 Am.Sub.S.B. No. 10 (“S.B. 10”), in relation to its remedial purpose was what ultimately tipped the scales and led a majority of this court to hold that the S.B. 10 amendments to
{¶ 69} Our determination in Williams that S.B. 10 violated Ohio’s Retroactivity Clause, because it imposed “ ‘new or additional burdens, duties, obligations, or liabilities as to a past transaction,’ ” id. at ¶ 20, quoting Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 37, was questioned by the Twelfth District Court of Appeals in its decision below in this case, see 2020-Ohio-856, 146 N.E.3d 593, ¶ 27-29, and has been questioned by other Ohio appellate courts, see, e.g., State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467, ¶ 23-24 (1st Dist.), on the grounds that it appears out of place with our earlier retroactivity jurisprudence. The main point of contention seems to be that we never explicitly stated in Williams that the S.B. 10 amendments impaired a vested right or that Williams had a reasonable expectation of finality regarding his criminal conduct that was affected by the law. Although this court in Williams should have been clearer about its mode of analysis and the analytical framework that it was applying—and again, that is the persistent problem with our Retroactivity Clause jurisprudence concerning claims of increased punishment—the context of Williams clears up a lot here. What we said in Williams must be viewed in the greater context of what was being analyzed: whether the law retroactively increased punishment for a past offense or, in other words, whether it was an ex post facto law. We effectively determined that it was. Thus, in light of what we said in Matz, 37 Ohio St.3d at 281-282, 525 N.E.2d 805—that a person has a reasonable expectation that his or her past criminal conduct will not be subject to ex post facto laws—it makes sense that the Williams court held as it did.
{¶ 70} We do not need Sherlock Holmes to crack this case. It is not true, as the Twelfth District stated in its decision below, that our decision in Williams departed from any “ ‘familiar framework’ ” in which we normally ask “ ‘whether the retroactive application of a new law burdened a vested right or a reasonable expectation of finality.’ ” 2020-Ohio-856, 146 N.E.3d 593, at ¶ 29, quoting Caldwell at ¶ 25. If Williams seems different from our other cases, it isonly because it marks the first time that a majority of this court, when confronted with a claim that a law retroactively increased punishment in violation of Ohio’s Retroactivity Clause, in essence applied the correct full test—the intent-effects test—to determine whether the law was actually punitive.
{¶ 71} This court’s jurisprudence on Ohio’s Retroactivity Clause leads us to where we are now: the present jurisdictional appeal and certified conflict between the Twelfth District Court of Appeals and Fifth District Court of Appeals, wherein through sincere efforts to synthesize our Retroactivity Clause caselaw, the appellate
{¶ 72} In the face of this confusion, the lead opinion’s statements and conclusions are odd. The lead opinion professes that in Williams this court did not depart from its “settled caselaw.” Lead opinion at ¶ 15. It asserts that Williams in no way incorporated caselaw construing the
{¶ 73} To start, very little about this court’s Retroactivity Clause caselaw—at least in the criminal-law context—may be called “settled.” While we may have consistently referred to our test for determining whether a law is substantive orremedial in Cook, Ferguson, and Williams, we have never explained how a claim of retroactive criminal punishment fits within that test or how such a claim should be analyzed. Indeed, even the lead opinion, with its assurance that the law on this issue is perfectly settled, has done no better in synthesizing our caselaw than to state:
Our focus, then, is on whether Sierah’s Law impairs vested, substantial rights or imposes new burdens, duties, obligations, or liabilities as to a past transaction. In conducting that analysis, we have understood that the Retroactivity Clause “prohibits a retroactive increase in punishment for a criminal offense.” [State v.] White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 32.
Lead opinion at ¶ 18. But what does that mean and how does it work? From where does this understanding derive? Is the public to assume, based on these statements, that a retroactive increase in criminal punishment impairs vested, substantial rights? Or is the public to understand that a retroactive increase in criminal punishment imposes new burdens, duties, obligations, or liabilities as to a past transaction? Or is something else meant? The lead opinion does not answer those questions. If the lead opinion wants to settle our caselaw in this area, it would do well to explain how a claim of retroactive criminal punishment fits within the test for determining whether a retroactive law is substantive or remedial, which is the central issue causing confusion in the appellate courts and among the parties and their amici curiae in this case. And it is something that the lead opinion fails to clear up despite its being perfectly positioned to do so.
{¶ 74} Additionally, the lead opinion is mistaken that in Williams we never incorporated caselaw construing the federal
{¶ 75} The lead opinion may declare that Ohio’s Retroactivity Clause is not in lockstep with the federal
{¶ 76} The central problem here is that our caselaw has never been clear about what analytical framework applies when a claim of retroactive criminal punishment is raised under Ohio’s Retroactivity Clause. Without doing more to clarify our caselaw, it is disingenuous for the lead opinion to proclaim that it must remain faithful to our Retroactivity Clause precedent because such faithfulness “ ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Lead opinion at ¶ 44, quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). By declining to address whether Ohio’s Retroactivity Clause incorporates a ban on ex post facto laws, and by declining to say how we should analyze such claims, the lead opinion does nothing to promote the “evenhanded, predictable, and consistent development of legal principles.” Payne at 827. Rather, the law is left in a liminal state of complete uncertainty.
{¶ 77} The very nature of the situation allows this court, and the courts below it, to use whatever analysis we or they want as long as the analysis resembles something that we have done before. For instance, this court might decide that a law is not punitive simply because the legislature did not intend for it to be punitive. That would resemble our Retroactivity
II. Sierah’s Law Is Punitive
{¶ 78} It is well understood that “ex post facto” is a term that applies only to criminal laws and that the prohibition against ex post facto laws applies to any law that increases or makes more burdensome the punishment for an offense after it has been committed. See Collins v. Youngblood, 497 U.S. 37, 42-43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Traditionally, this court and other courts have used the intent-effects test to delineate between civil and criminal laws for purposes of ex post facto analysis. See, e.g., Cook, 83 Ohio St.3d at 414-423, 700 N.E.2d 570; Smith, 538 U.S. at 92-97, 123 S.Ct. 1140, 155 L.Ed.2d 164; State v. Trujillo, 248 Ariz. 473, 477, 462 P.3d 550 (2020). A full and comprehensive application of the test to Sierah’s Law demonstrates that it is punitive and may not, therefore, be applied retroactively.
{¶ 79} In applying the intent-effects test, this court must determine first whether the General Assembly, “ ‘in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other,’ ”—civil or criminal—and second, if the General Assembly “ ‘has indicated an intention to establish a civil penalty, * * * whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.’ ” (Ellipsis added in Ward.) Cook at 415, quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). This court has said that “[t]here is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a ‘matter ofdegree.’ ” (Emphasis deleted.) Cook at 418, quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597, 131 L.Ed.2d 588. As the lead opinion acknowledges, the intent-effects factors outlined in Mendoza-Martinez, 372 U.S. at 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644, are helpful for determining whether a particular law is, on balance, punitive. Weighed in the balance or subjected to a careful measurement of “degree,” Sierah’s Law is punitive.
A. The Legislative Intent Is Mixed
{¶ 80} The lead opinion notes that nothing in the statutory language of Sierah’s Law indicates that the intent behind it was to inflict punishment. That is perhaps true if one looks solely for an express proclamation such as “the purpose of this statute is to punish,” or some similar language. But in fact, there is a fair amount of evidence in the statute’s language demonstrating the legislature’s punitive and not purely remedial intent.
{¶ 81} To begin, Sierah’s Law does not expressly state that its requirements are “civil” in nature or are intended to be
{¶ 82} Importantly, the General Assembly chose to place Sierah‘s law in
{¶ 83} Regardless of where Sierah‘s Law was placed in the Revised Code, there is additional and important evidence of the legislature‘s punitive intent, which the lead opinion effectively ignores. One instance is the ease with which a person may be shunted from a limited period of reporting to an indefinite or potentially lifetime reporting requirement under the law.
{¶ 84} Although
{¶ 85} Contrary to what the lead opinion says, Sierah‘s Law is not merely a remedial tool for aiding law enforcement in investigating crimes. Although the Violent Offender Database itself may not be accessible to the public, most of the information on the database is accessible to the public, because Sierah‘s Law specifically requires that the information be made available to it. Pursuant to Sierah‘s Law, any person may obtain from a local sheriff‘s office much of the same information about the registrants that is included in the database. See
{¶ 86} To be sure, and as the state and its amicus curiae point out, there is evidence of the legislature‘s remedial intent within Sierah‘s Law. Although the remedial intent is not expressly stated, as it was in Ohio‘s sex-offender-registration laws, the fact that a court must consider several factors when deciding whether to relieve a person of the presumptive reporting requirement on the ground that he was not the principal offender, including the offender‘s risk of recidivism and continued threat to the community, implies a public-safety component. See
B. Sierah‘s Law Is Punitive in Effect
{¶ 87} After determining the legislative intent behind the law, the next step in the intent-effects test is to inquire into whether the statutory scheme is so punitive in either purpose or effect that it overrides any suggestion that the legislature‘s intent was to create a civil, remedial law. See Cook, 83 Ohio St.3d at 415-418, 700 N.E.2d 570; Smith, 538 U.S. at 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164. When the legislature has expressed a clear intent to create a civil, remedial law ” ‘only the clearest proof’ ” of the law‘s punitive purpose or effect “will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), quoting Ward, 448 U.S. at 249, 100 S.Ct. 2636, 65 L.Ed.2d 742. In cases like this one, however, when the legislative intent behind the law is ambiguous, the evidence showing that a law is civil in nature should not be given the same weight. See Hudson at 114 (Souter, J., concurring in the judgment) (” ‘clearest proof’ of criminal character * * * [is] a function of the strength of the countervailing indications of civil nature“).
{¶ 88} In Mendoza-Martinez, 372 U.S. at 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644, the United States Supreme Court listed the following factors for determining whether a law is punitive in purpose or effect:8 (1) “whether the sanction involves an affirmative disability or restraint,” (2) “whether it has historically been regarded as a punishment,” (3) “whether it comes into play only on a finding of scienter,”
(4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence,” (5) “whether the behavior to which it applies is already a crime,” (6) “whether an alternative purpose to which it may rationally be connected is assignable for it,” and (7) “whether it appears excessive in relation to the alternative purpose assigned.”
{¶ 89} An analysis of the Mendoza-Martinez factors leads to the conclusion that Sierah‘s Law is punitive in purpose and effect and is therefore unconstitutional when it is applied retroactively. Several of the Mendoza-Martinez factors easily apply here. First, it is clear that the behavior that Sierah‘s Law concerns is already criminalized. A person is not considered a “violent offender” and subject to reporting under the law unless he has been convicted of a specified criminal offense. See
C. Whether the Law Involves an Affirmative Disability or Restraint
{¶ 90} Another factor to be considered is whether the law involves an affirmative disability or restraint. Mendoza-Martinez, 372 U.S. at 168-169. To a large extent, Sierah‘s Law does so. The law requires an eligible offender to register annually with the local sheriff‘s office for at least ten years, in person, and within ten days of the anniversary of his or her enrollment in the database.
{¶ 91} If a registrant recklessly misses his deadline to enroll, re-enroll, or give notice of a change of address, the law states that he has committed a felony. See id. Because of that, and because the failure to comply with the requirements also “shall constitute a violation of the terms and conditions of the community control sanction, parole, post-release control sanction, or other type of supervised release,”
{¶ 92} To say that this scheme does not impose an affirmative disability or restraint
{¶ 93} For these reasons, I wholly disagree with the lead opinion that the reporting obligations are a ” ‘de minimis administrative requirement,’ ” the inconvenience of which is ” ‘comparable to renewing a driver‘s license.’ ” Lead opinion at ¶ 34, quoting Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Such glib minimization should not serve as a substitute for addressing serious constitutional infringements. The failure to renew one‘s driver‘s license once every four or eight years, as Ohio law requires,
D. Whether the Punitive Aspects of the Law Are Historically Regarded as Punishment
{¶ 94} The next factor to be considered is whether the type of sanction imposed has been historically regarded as punishment. Mendoza-Martinez, 372 U.S. at 168-169. The lead opinion says little about this factor other than to point out that approximately two decades ago, the United States Supreme Court—in reviewing an entirely different reporting law—“rejected the notion that in-person registration is akin to probation, supervised release, or public shaming.” Lead opinion at ¶ 36, citing Smith, 538 U.S. at 84, 98, 101, 123 S.Ct. 1140, 155 L.Ed.2d 164. Although it is true that the Supreme Court in Smith held that Alaska‘s sex-offender-registration and notification laws were different from other historical forms of punishment, see Smith at 97-99, the lead opinion here leaves out certain relevant contextual information that informed the court‘s decision in Smith: information that is necessary for a true understanding of why the Supreme Court held as it did and why its conclusion was different regarding this Mendoza-Martinez factor.
{¶ 95} To begin, the Alaska law at issue in Smith lacked an in-person registration requirement. Smith at 101. That fact was mentioned by the Supreme Court in concluding that the law did not involve an affirmative disability and was not sufficiently akin to probation or supervised release. Id. Further, unlike probation and supervised release, the reporting law at issue in Smith did not include any mandatory conditions that would “allow the supervising officer to seek the revocation of probation or release in case of infraction.” Id. The same may not be said for Sierah‘s Law. Not only is Sierah‘s Law explicit in its requirement of in-person registration,
{¶ 96} Further, at the forefront of the Supreme Court‘s application of the Mendoza-Martinez factors in Smith was its unequivocal determination that the Alaska legislature intended the law to serve as a civil, nonpunitive means of identifying prior offenders for the protection of the public, which was based on the high incidence of recidivism of such offenders. See id. at 92-93, 102-103. The court began its discussion by noting that the ” ‘fairly recent origin’ ” of sex-offender-registration and notification laws suggests that the law at issue was not “meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.” Id. at 97, quoting Doe I v. Otte, 259 F.3d 979, 989 (9th Cir.2001). From there, the court went on to discuss whether certain provisions in the law, primarily the community-notification requirements, nevertheless resembled the type of “shaming” punishments used during the colonial era. Id. at 97-98. Although the court determined that some colonial-era punishments were meant to inflict public disgrace and humiliation through the imposition of corporal punishment before a public audience, and also included public shaming and banishment, the court held that any initial resemblance that the notification and registration laws might have to those earlier forms of punishment was misleading. See id. The court noted that unlike the reporting and notification laws at issue, colonial shaming laws “involved more than the dissemination of information.” Id. at 98. “They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community.” Id. The court then stated:
By contrast, the stigma of Alaska‘s Megan‘s Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. * * * The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.
Id. at 99. Thus, a review of what the court actually said in Smith reveals that its approach to the historical-punishment question was delimited from the start by its initial finding that the Alaska legislature intended to enact a remedial, regulatory scheme.
{¶ 97} If it were Sierah‘s Law on review by the United States Supreme Court, as opposed to the Alaska statute at issue in Smith, there is no reason whatsoever to believe that the court would have reached the same conclusion. As discussed in detail above, Sierah‘s Law contains no explicit statement of the legislature‘s intent. It contains no legislative finding that people
{¶ 98} By contrast, the lead opinion cites the United States Sentencing Commission‘s 2019 report to Congress on recidivism among federal violent offenders, which is of little use in the context of Sierah‘s Law because the report encompasses all types of violent offenses, from homicide offenses down to simple assault and hit-and-run traffic offenses that involve bodily injury. United States Sentencing Commission, Recidivism Among Federal Violent Offenders 5 (2019), available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190124_Recidivism_Violence.pdf (last accessed Oct. 12, 2021) [https://perma.cc/UK8F-KVRL]. The report also includes offenses that, depending on their circumstances, may not involve any violent conduct whatsoever, such as blackmail and extortion. See id. Additionally, the statistics cited in the lead opinion measured recidivism rates based on a subsequent arrest, not a subsequent conviction. See id. at 3-4, 13. And in that regard, the report makes clear that classification as a recidivist may be based on arrests for alleged violations of supervised release, probation, or parole related to the underlying offense. Id. at 5. Accordingly, under the report, a person may be labeled a violent-offender “recidivist” merely because he was arrested for failing to report to his probation officer.
{¶ 99} There is simply no way to discern from this report whether people who are convicted of any of the five violent offenses enumerated in Sierah‘s Law will reoffend by committing a new violent crime. Thus, the far better measure is to look at the recidivism rates for homicide offenders. And as the lead opinion notes, those offenders may have low recidivism rates because they “typically receive longer sentences and ‘age out’ of committing additional violent crimes.” Lead opinion at ¶ 41. This, in turn, highlights the pointlessness of requiring people who have some of the lowest recidivism rates to register in the Violent Offender Database.
{¶ 100} On top of everything else, Sierah‘s Law has punitive components that may not be justified by any logical concern for public safety. If faced today with a law like Sierah‘s Law, the Supreme Court would have a much harder time discerning whether the public-access-to-information aspect of the law—which results in the “adverse consequences” of embarrassment and social ostracism, Smith, 538 U.S. at 99, 123 S.Ct. 1140, 155 L.Ed.2d 164—furthers the law‘s “legitimate governmental objective,” id. at 98. It goes without saying that a court must be able to define what the legitimate governmental objective behind a law is before it may discern whether any aspect of the law furthers its objective. Even if we assume that the objective behind Sierah‘s Law is the protection of the public, its legitimacy
{¶ 101} Lastly, the United States Supreme Court‘s decision in Smith should not serve as our lodestar. It has now been two decades since the court decided Smith. It may no longer be said that criminal-offender registries ” ‘are of fairly recent origin,’ ” id. at 97, quoting Otte, 259 F.3d at 989. Two decades worth of research has revealed quite a bit about what such registries actually do and whether they accomplish their promulgators’ avowed goal of protecting the public. The results are not good. Although the court in Smith held that Alaska‘s sex-offender-registration laws were properly based on an understanding that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high,’ ” id. at 103, quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002),10 newer research has consistently suggested that sex offenders reoffend at much lower rates than previously thought. For instance, one study by the United States Department of Justice that involved following the progress of every sex offender released in 15 states for three years found that the reconviction rate for a new sex offense was just 3.5 percent. Langan, Schmitt, & Durose, Recidivism of Sex Offenders Released from Prison in 1994, at 2 (2003), available at https://bjs.ojp.gov/content/pub/pdf/rsorp94.pdf. (accessed Oct. 12, 2021) [https://perma.cc/55JA-TS9L]. Another study from 2012 examined the recidivism rate of sex offenders in Connecticut and found that only 2.7 percent were convicted of a new sex offense within five years of their release from prison. State of Connecticut Office of Policy and Management, Criminal Justice Policy & Planning Division, Recidivism Among Sex Offenders in Connecticut, at 4 (2012), available at https://www.womenagainstregistry.org/Resources/pdf/sex_offender_recidivism_2012_final.pdf (accessed Oct. 12, 2021) [https://perma.cc/7FZF-AJ9B]. And as the Sixth Circuit has recently noted, other evidence suggests that “offense-based public registration has, at best, no impact on recidivism” and may “actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate
into their communities.” (Emphasis sic.) Does #1-5 v. Snyder, 834 F.3d 696, 704-705, (6th Cir.2016), citing Prescott & Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?, 54 J.L. & Econ. 161 (2011).
{¶ 102} Had the court in Smith known then what we have learned since its decision in that case, who knows what the
E. Whether the Law Is Excessive in Relation to its Remedial Purpose
{¶ 103} The final two Mendoza-Martinez factors are related to each other. The first of those factors asks whether “an alternative purpose to which [the law] may rationally be connected is assignable for it.” Mendoza-Martinez, 372 U.S. at 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644. In other words, this factor asks whether the law advances a legitimate, regulatory purpose. See, e.g., Doe v. State, 189 P.3d 999, 1015 (Alaska 2008). The final factor asks whether the law seems excessive in relation to the alternative purpose assigned to it. Mendoza-Martinez at 169.
{¶ 104} As to the first factor, of course there may be a legitimate regulatory purpose behind Sierah‘s Law. But as noted above, it is difficult to say for certain what the legislature intended, because the law does not include a statement of purpose and some aspects of the law are undoubtedly punitive whereas others evince a remedial purpose aimed at public safety. In short, there are grounds for saying that the legislature might have intended to remediate a perceived public-safety risk posed by people who have been convicted of violent offenses by providing law enforcement and the community with information about their physical characteristics and where they reside. But again, the lack of any evidence or legislative findings showing that such people are likely to recidivate and the lack of any evidence showing the efficacy of such a registration scheme weakens the legitimacy of any remedial aim of the law.
{¶ 105} Again, the final Mendoza-Martinez factor asks whether the law appears excessive in relation to its assigned remedial purpose. Id. at 169. Sierah‘s Law satisfies that criterion. As noted above, this factor is often considered the most important component of the comprehensive ex post facto analysis. Throughout the years, this court and others have from time to time determined that registration and public-disclosure schemes are a legitimate way to protect the public from people deemed to have a high risk of reoffending. See, e.g., Cook, 83 Ohio St.3d 404, 700 N.E.2d 570; see also Smith, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164. For the reasons stated above, the time has come for us to reevaluate the legitimacy of such laws. But nevertheless, even when in the past a class of people were deemed to have a high risk of recidivating, if registration and public-disclosure requirements were not tied to a public-safety risk, an implication
{¶ 106} Sierah‘s Law requires people convicted of certain offenses to annually report a significant amount of personal information to law enforcement and much of that information is available to the public, upon request. See
{¶ 107} Considering all those indicia of excessiveness—which the lead opinion practically ignores—it is difficult to reach any conclusion other than that the law is excessive in relation to its purported remedial purpose of protecting the public. A close review of the law shows that the General Assembly has not said what makes the people who are subject to Sierah‘s Law a public-safety risk to begin with; nor does it seem to have a clear vision of from what it is trying to protect the public. It is unclear whether the General Assembly is concerned that these individuals are more likely to commit another violent offense, or that they are more likely to commit any offense, or both. If violent-offense recidivism is the focus of the public-safety concern, then imposing a potential
F. Evaluation of All the Factors
{¶ 108} A thorough assessment of the Mendoza-Martinez factors demonstrates that Sierah‘s Law is punitive in effect and therefore unconstitutionally retroactive. Although a number of the factors are closely related to each other and may not be enough to show a punitive effect by themselves or with each other, the factors relating to affirmative disability or restraint, historical forms of punishment, and excessiveness in relation to a nonpunitive purpose decisively tip the scales. Accordingly, I would hold that Sierah‘s Law is punitive and therefore may not be applied retroactively based on the prohibition against retroactive punishment contained in
DONNELLY and BRUNNER, JJ., concur in the foregoing opinion.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Victoria Bader, Assistant Public Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Stephen P. Carney, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Alexandra S. Naiman, urging reversal for amici curiae Ohio Justice & Policy Center, Advocating Opportunities, Ohio Domestic Violence Network, and Ohio Association of Reentry Coalitions.
Notes
Walls limits his ex post facto argument here to the federal Constitution. We note, however, that various courts of appeals have observed that the prohibition of “retroactive laws” in
Section 28, Article II of the Ohio Constitution includes a prohibition of ex post facto laws. See State v. Gleason, 110 Ohio App.3d 240, 246, 673 N.E.2d 985 ([9th Dist.]1996); State v. Smith, 16 Ohio App.3d 114, 116, 474 N.E.2d 685 ([1st Dist.]1984), fn. 4; State v. Ahedo, 14 Ohio App.3d 254, 256, 470 N.E.2d 904 ([8th Dist.]1984); State ex rel. Corrigan v. Barnes, 3 Ohio App.3d 40, 443 N.E.2d 1034 ([8th Dist.]1982). This court has also implied as much. See, e.g., Van Fossen [v. Babcock & Wilcox Co.], 36 Ohio St.3d [100,] 107, 522 N.E.2d 489 [(1988)] (observing thatSection 28, Article II was “a much stronger prohibition” on retroactive legislation than its precursor, which was limited to ex post facto laws and laws impairing contracts).