Sunday, July 7, 2013

Oklahoma and Ohio have Ruled Restrictions for RSO’s as Punitive and Retroactive Application of them as Unconstitutional, it Could Happen in Virginia if Someone Takes Up a Challenge

On June 25, 2013 the Oklahoma Supreme Court ruled that restrictions imposed upon registered sex offenders in their state are in fact punitive and not administrative. Also in the ruling the court stated that any retroactive application of laws upon registered offenders including re-classifications and prolonging their required time to remain a registered offender are both unconstitutional.

Oklahoma must now take steps to return the original classification and to remove anyone who had already met their original requirement of registration this in the end will cost the state tens of thousands if not hundreds of thousands of dollars. The real ramifications of this ruling will be unfurling for months because numerous inmates currently serving time for violating state sex offender registry laws should have their convictions overturned and be entitled to release. 

Ohio previously had to adhere to similar rulings from their state Supreme Court and their costs did reach into the hundreds of thousands. 

       In Ohio       
  1. June 2010- Retroactive/mass re-classifications
  2. April 2011- Retroactive mandate to registration for convictions before Adam Walsh Act/ AWA existed
  3. July 2011- Adam Walsh Act/AWA mandated registration declared punitive not administrative
  4. April 2012- Retroactive mandate of lifetime registration for juveniles
All determined to be unconstitutional. 

So why does any of this matter here in Virginia?  

Well, for the last 5 General Assembly sessions I have been the one voice of reason pointing out that the majority of proposed bills here in Virginia against registered sex offenders has nothing to do with public safety, they aren't simply administrative but are actually punitive and they are all based on myth and fear instead of on any facts or empirical evidence.  

Also, most bills proposed here in Virginia are still being written as retroactive and are only amended if I point out the issues with ex post facto. Some of the more senior and knowledgeable Senators and Delegates have also recognized this and agree that the bill can not move forward as retroactive. 

But the main reason is because 

  • In 2006 and 2008 the Virginia General Assembly retroactively re-classified Virginians who were classified as Non-Violent to Violent. The offenders were notified via letter of the new mandate after the law went into effect that July. When this changed occurred it meant the offender would not be able to petition to be removed from the registry, ever they would be listed for life. It also meant instead of re-registering in-person with the VSP once per year they were mandated to do so every 90 days for life
  • In 2008 the Virginia General Assembly retroactively increased the mandatory time Non-Violent offenders were required to register from 10 years to 15 years before they would be allowed to petition the courts to be removed. A few Virginians that had successfully petitioned and were removed before 2008 were notified via letter of the new mandate to register for another 5 years after the law went into effect that July and were put back on the list. Everyone else had 5 years added onto their time-frame but weren’t even notified of this change by the state, it was just done with no due process.
These are the exact dynamics that were ruled unconstitutional in Oklahoma two weeks ago.  

The two 2008 Virginia legislative changes are also what gave me that push to step up as a public advocate for this platform. 

One day hopefully here in Virginia our Supreme Court will take up these two legislative violations of ex post facto from 2006 and 2008; when someone that was affected by one or both of these retroactive mandates is willing and able to take on the challenge. If they do, they will not only be helping themselves but thousands of others who were denied due process when these proposals were signed into law by the Governor of Virginia. 

Mary D. Devoy