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Violent-Offender Registration Duties Can Be Imposed Retroactively

A 2019 state law requiring certain felons to register as violent offenders can be imposed on those who committed their crimes before the law took effect, the Ohio Supreme Court ruled today.

A divided Supreme Court determined that applying the registration requirements in “Sierah’s Law” did not violate the Ohio Constitution’s prohibition against retroactive laws.

In the Court’s lead opinion, Justice Sharon L. Kennedy wrote that imposing the registration requirement is not an additional punishment or such a burden on a criminal offender that it can be considered a violation of the constitution. She noted that the Court has found more burdensome offender-registration requirements, such as sex-offender registration, to be constitutional when applied retroactively.

The Court rejected two legal challenges by men who committed crimes shortly before the new law took effect but were sentenced soon after. The decision also resolves a split among Ohio appeals courts, affirming the Twelfth District Court of Appeals’ retroactive application of Sierah’s Law and reversing a Fifth District Court of Appeals’ decision holding it unconstitutional.

Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Kennedy’s opinion. Chief Justice Maureen O’Connor concurred in judgment only.

In a dissenting opinion, Justice Melody J. Stewart wrote the law effectively increases the punishment after the crimes had been committed and violates the constitutional prohibition on “ex post facto” laws.

Justices Michael P. Donnelly and Jennifer Brunner joined Justice Stewart’s dissent.

Separate Challenges to Law Considered On March 7, 2019, Miquan Hubbard pleaded guilty to murder in Butler County Common Pleas Court for the 2018 killing of Jaraius Gilbert Jr. On March 20, 2019, Sierah’s Law took effect.

Before his sentencing in April 2019, the trial court told Hubbard he would be subject to violent-offender registration under Sierah’s Law. Hubbard objected, arguing that Sierah’s Law violated the Retroactivity Clause of Article II, Section 28, of the Ohio Constitution. The trial court overruled the objection and notified Hubbard that he had a duty to register. He received a sentence of 16 years to life in prison. The Twelfth District affirmed his conviction and sentence, and he appealed to the Supreme Court.

On March 4, 2019, Albert Jarvis IV pleaded guilty in Muskingum County Common Pleas Court to kidnapping with a firearm specification and other offenses stemming from a November 2018 incident. At his April 1, 2019, sentencing, the trial court overruled his objection to violent-offender registration, notified him of his registration duties, and imposed a seven-year prison sentence.

Jarvis appealed his sentence to the Fifth District, which held that the retroactive application of Sierah’s Law violated the state constitution. The Fifth District certified that its judgment conflicted with the Twelfth District’s decision. The Supreme Court agreed to resolve the conflict.

Law Established Database for Law Enforcement Use Under Sierah’s Law, which is found in R.C. 2903.41 through R.C. 2903.44, the Ohio Bureau of Criminal Investigation must establish and maintain a Violent-Offender Database and make it available to federal, state, and local law-enforcement officers. The law classifies as “violent offenders” those who on or after its effective date are convicted of or plead guilty to one or more of six different types of felony offenses, including aggravated murder, murder, and kidnapping. The law also includes those found guilty of attempting to commit, conspiring to commit, or complicity in committing those violent offenses. And Sierah’s Law applies to anyone “serving a term of confinement for any of those offenses on the law’s effective date.”

Offenders are required to report in person to the sheriffs’ offices in the counties in which they live. On an annual basis, the offender must provide the sheriff the offender’s full name and any alias; home address; and any address of an employer or school the offender is attending. Offenders must also provide Social Security numbers; driver’s licenses or state identification card numbers; license plate numbers and descriptions of vehicles owned or operated by the offenders; and descriptions of any scars, tattoos, or distinguishing marks.

The sheriff must photograph the offender, and the offender must provide fingerprints and palm prints. The offender is required to reenroll annually for 10 years after the initial enrollment.

The database is not available to the public and may be accessed only by authorized law-enforcement officers. Except for the personal identification numbers, the enrollment information retained by the sheriff is a public record and can be inspected upon request. An offender can request that a common pleas court withhold any information from the pubic if it poses a threat to the offender’s safety.

Failure to comply with the registration requirements is a fifth-degree felony, and a court may extend the registration time for additional years if the offender is convicted of another felony or violent misdemeanor or has violated a term or condition of the offender’s original sentence.

Supreme Court Tests Law’s Retroactive Components Adopted in 1851, the Ohio Constitution’s retroactivity clause states that the General Assembly “shall have no power to pass retroactive laws.” Justice Kennedy explained that the Court has determined that this provision does not prohibit all laws that apply retroactively and has developed a test to determine which laws are “unconstitutionally retroactive.” The Court’s two-part test asks whether the legislature expressly made a statute retroactive, and if so, is the statute “substantive or remedial”?

A law is considered substantive if it creates a new right; impairs or takes away an existing right; or “imposes new or additional burdens, duties, obligations or liabilities” related to a past transaction. Remedial laws substitute a new or more appropriate method to enforce an existing right, the lead opinion explained.

Justice Kennedy wrote that Sierah’s Law does not impair a vested right or impose new burdens as to a past transaction, because felony offenders generally have no right to expect that their convictions will not be the subject of future legislation. She pointed out that the legislature intended Sierah’s Law to be a civil law that helps law enforcement investigate and share information about those who have committed some of the most serious offenses. However, a statute may be “so punitive in purpose or effect” as to transform it into a criminal penalty. If the law is punitive, it is unconstitutionally retroactive, the opinion stated.

Registration Law Not Punitive Justice Kennedy explained that Sierah’s Law is not punitive, noting that the imposition of the registration requirement is not part of an offender’s sentence, and that the offender is merely notified of the registration duties when sentenced for the violent crime.

Citing cases addressing the 2003 “Megan’s Law,” which enhanced the requirements for sex-offender registration, the lead opinion stated that enhanced registration obligations were not increases in punishment, but rather an additional “consequence” of the offender’s criminal conduct. The opinion noted that when lawmakers tried to increase sex-offender notification requirements further in the 2007 “Adam Walsh Act,” the Court found some of the measures too burdensome to allow for retroactive application.

Sierah’s Law’s requirements are not as burdensome as the sex-offender registration duties imposed by Megan’s Law or the Adam Walsh Act, the lead opinion explained. The database is only available to law enforcement for the purpose of collecting information about violent offenders and facilitating information-sharing among authorities at the federal, state, and local level, it stated.

Justice Kennedy noted that the U.S. Supreme Court has provided “useful guideposts” to determine whether a law in effect inflicts punishment and applying them demonstrated that Sierah’s Law is not punitive in effect. Sierah’s Law does not impose a disability or restraint, registration has not historically been regarded as punishment, the law’s operation promotes the traditional aims of punishment, and its requirements are not excessive in relation to its regulatory purpose, she wrote.

Law’s Intent Not Fully Analyzed, Dissent Maintained In her dissent, Justice Stewart noted the Court’s lead opinion incorrectly concluded that Ohio’s retroactivity clause does not encompass a prohibition on the passing of ex post facto laws, similar to the U.S. Constitution. By examining reports from Ohio’s 1851 constitutional convention, Justice Stewart noted the prior version of the constitution prohibited ex post facto laws, which at the time was considered to apply to the punishment for criminal offenses. Seeking to clarify that the General Assembly had no power to impact past criminal or civil acts, the constitution drafters chose the word “retroactive” to replace “ex post facto,” the dissent explained.

The dissent stated that because the retroactivity clause encompasses a ban on ex post facto laws, the Court should analyze Sierah’s Law under the measures outlined by the U.S. Supreme Court to determine if a law is unconstitutionally retroactive. Where it is alleged that a new law is criminally punitive the high court examines the “intent” and “effects” of the law and determines whether it can be applied retroactively.

The dissenting opinion stated that the lead opinion relies on tests that “lack 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.”

Applying an ex post facto “intent” versus “effects” analysis, the dissent maintained that Sierah’s Law is punitive and cannot be applied retroactively. The opinion noted the law creates a new felony for not promptly reporting the requested information to the sheriff. It also allows for a “dramatic extension” of reporting requirements for even the most minor infraction of an offender’s sentencing requirements, which is punitive, the dissent concluded.

2020-0544 and 2020-0625. State v. Hubbard, Slip Opinion No. 2021-Ohio-3710.

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2020-0549. State v. Jarvis, Slip Opinion No. 2021-Ohio-3712.

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Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.