Precedent vs. Present: Should New Evidence Affect the Ohio Retroactivity Clause Analysis in Offender Registration Laws?

Photo by Chris Lawton on Unsplash

Sara Leonhartsberger, Associate Member, University of Cincinnati Law Review

I. Introduction

Should evidence that repeat-homicide recidivism rates rests at or below 1%[1] drastically affect the Ohio Supreme Court’s Retroactivity Clause analysis in offender registration laws when that evidence clashes with the high recidivism rates rationale in prior United States and Ohio Supreme Court precedent?[2] Article II, Section 28 of the Ohio Constitution states that “the general assembly shall have no power to pass retroactive laws,”[3] laws made applicable to those who committed offenses prior to the laws’ provisions.[4] Similarly, Article I, § 10, cl. 1 of the United States Constitution prohibits ex post facto laws,[5] laws that impose retroactive punishment.[6] Both the Ohio Supreme Court and the United States Supreme Court have analyzed whether offender registration statutes would be considered punitive, therefore violative of Ohio’s Retroactivity Clause and the Constitution’s Ex Post Facto Clause,[7] or remedial,[8] therefore permissible under both clauses.[9] While both federal and state precedent have favored a remedial interpretation of offender registration laws,[10] Ohio Supreme Court Justice Stewart’s dissent in State v. Hubbard challenges the continued viability of such precedent.[11]

State v. Hubbard held that a retroactive application of O.R.C. 2903.41 through 2903.44—“Sierah’s Law” that “requires all offenders convicted of or pled 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 these offenses to enroll in Ohio’s ‘Violent Offender Database’ for a period of ten years”[12]—did not violate the Retroactivity Clause of the Ohio Constitution.[13] While the majority strictly applied former precedent to determine Sierah’s Law was permissibly remedial,[14] Justice Stewart’s dissent found Sierah’s Law punitive in its effect and therefore unconstitutional partially through present recidivism rates.[15]

Part II of this article will provide a background, discussing United States Supreme Court precedent and Ohio Supreme Court precedent. Part III of this article will provide an analysis of the State v. Hubbard majority and dissent. Part IV will discuss a legal strategy emphasized by State v. Hubbard. Part V will conclude with a concurrence that the legal strategy emphasized by State v. Hubbard, the presence of low recidivism rates undermining the original rationale of federal and state precedent, should be considered in the Ex Post Facto Clause analysis.

II. Background

A. United States Supreme Court Precedent

In Kennedy v. Mendoza-Martinez, the Supreme Court developed factors for assessing whether a statute in effect would be punitive orremedial in nature for Ex Post Facto Clause analysis.[16] Although the underlying case involved whether automatic deportation as a penalty for draft evasion violated the Fifth and Sixth Amendment rights to due process and fair trial,[17] the factors that ultimately weighed in favor of punitive sanctions in Kennedy[18] have been applied to other areas of law such as the Ex Post Facto Clause analysis.[19] While the factors are not exhaustive or dispositive, they provide the traditional framework in the Supreme Court’s analysis.[20] The factors to consider and balance in the analysis of whether a statute is punitive are as follows:

“1) whether the sanction involves an affirmative disability or restraint; 2) whether it has historically been regarded as 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 rationally be connected is assignable for it; and 7) whether it appears excessive in relation to the alternative purpose assigned.”[21]

The more factors that are answered affirmatively, the more likely the statute is punitive.[22]

In Smith v. Doe, the Supreme Court held that Alaska’s retroactive sex offender registration statute was a civil, remedial provision that did not violate the Ex Post Facto Clause.[23] The Court first analyzed whether the legislature intended to establish the statute for punishment or for civil remedial purposes;[24] if the legislature intended to punish with the retroactive statute, the analysis would end;[25] the statute would violate the Ex Post Facto Clause.[26] The Court reasoned that Alaska’s specific objective stated in the statutory text itself—that “sex offenders pose a high risk of reoffending” and identification of “protecting the public from sex offenders” as the “primary governmental interest” of the law[27]—demonstrated a civil remedial intent, not a punitive intent.[28] Furthermore, the placement of the statute in the civil code instead of the criminal code also leant weight to the civil remedial intent.[29] The Court proceeded to the next step of the analysis, using the Kennedy v. Mendoza-Martinez factors to determine whether the registration law had a punitive effect, regardless of legislative intent.[30] If the law had a punitive effect, it would also violate the Ex Post Facto Clause.[31]

In its balance of the Kennedy v. Mendoza-Martinez factors, the Court weighed whether the regulatory scheme had “been regarded in our history and tradition as a punishment; impose[d] an affirmative disability or restraint; promote[d] the traditional aims of punishment; ha[d] a rational connection to a nonpunitive purpose; or [was] excessive with respect to this purpose.”[32] The Court reasoned that the regulatory scheme had not been regarded as punishment, both from its relatively new implementation and its lack of analogy to public shame by permanent branding in the colonial period.[33] Further, since sex offenders would be free to move, the registration would not constitute an affirmative disability or restraint.[34] The Court further held that while the statute may deter further crimes,[35] that was not enough to prove it promote the traditional aims of punishment.[36] Finally, the Court held that registration had a rational connection to the nonpunitive purpose of protecting the public from repeat-offenders by the dissemination of information required by the registration statute.[37] Because “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism”[38] and “the risk of recidivism posed by sex offenders is ‘frightening and high,’”[39] the Court further held that Alaska’s registration law was not excessive in relation to its regulatory purpose, the final factor in the effects test.[40] With all factors weighing toward remedial, the Court held that Alaska’s retroactive sex offender registration law did not violate the Ex Post Facto Clause.[41]

B. Ohio Supreme Court Precedent

In State v. Cook, the Ohio Supreme Court held that Ohio’s retroactive sex offender registration law did not violate the Ohio Constitution’s Retroactivity Clause as a civil remedial statute.[42] The Court applied a two-part test in determining in its Retroactivity Clause analysis: 1) whether the legislature intended to apply the statute retroactively, and 2) if so, whether that statute was substantive, a violation of the Retroactivity Clause, or remedial, a non-violation.[43] Determining that the legislature intended the registration law to apply retroactively,[44] the Ohio Supreme Court stated that a statute was substantive only if it “impairs or takes away vested rights, affects an accrued substantive right, imposed new or additional burdens, duties, obligations or liabilities as to a past transaction, or creates a new right.”[45] The Ohio Supreme Court reasoned that habitual sex offenders were already required to register with their country sheriff prior to the law,[46] therefore it was not a new vested right.[47] Furthermore, the Ohio Supreme Court cited prior precedent that “unless a past transaction or consideration created at least a reasonable expectation of finality,”[48] application of a retroactive law would not raise constitutional concerns.[49] The Ohio Supreme Court held that the registration and address requirements under the registration law were de minimus procedural requirements, the equivalent of renewing a driver’s license; therefore not substantive.[50] The Ohio Supreme Court further held that a community notice provision, that neighbors would be informed of the registration status of the sex offender, was also remedial in addressing the “risk of recidivism is higher among sex offenders than any other type of criminal.”[51] Because holding otherwise would be to “find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence,”[52] the Court held that the offender registration law was remedial, therefore permissible under Ohio’s Retroactivity Clause.[53]

However, in State v. Williams, the Ohio Supreme Court held that retroactive amendments to the sex offender registration statute were punitive in nature, violating the Retroactivity Clause.[54] Finding the legislature intended the amendments to be retroactive,[55] the Court proceeded to its second step of analysis as to whether the amendments were substantive or remedial.[56] The Court held that the amendments had rendered the registration statute punitive, contrasting the automatic registration requirements of in-person registration in three different counties every 180 days for life with criminal prosecution if violated with Cook’s de minimus “driver’s license” requirement of annual registration for ten years.[57] Furthermore, as sex offenders could no longer challenge their classifications and judges could no longer review their classifications, the Court found further weight for the amendments’ punitive nature.[58] Finally, the Court found that “all registration requirements apply without regard to the future dangerousness of the sex offender”[59] but rather “are based solely on the fact of conviction”[60] as another factor in its punitive determination.[61] Because the new amendments were punitive, the Court held that they violated the Retroactivity Clause, and all offenders convicted prior to the amendments could not have the amendments applied to them.[62]

III. State v. Hubbard

A. State v. Hubbard Majority

In State v. Hubbard, the Ohio Supreme Court held that the retroactive application of Sierah’s Law, a violent offender registration statute, was not a violation of Ohio’s Retroactivity Clause.[63] After the parties stipulated that Sierah’s Law was expressly made retroactive by the legislature, the first part of the Court’s Retroactivity Clause analysis,[64] the Court examined “whether Sierah’s Law impairs vested, substantial rights or imposes new burdens, duties, obligations, or liabilities as to a past transaction.”[65] Comparing Sierah’s Law to prior precedent, the Court equated Sierah’s Law’s requirement to register annually in one county for ten years to Cook’s remedial de minimus procedural requirements akin to obtaining a driver’s license.[66] The Court contrasted Williams, holding it to be far more burdensome a regime that had required more frequent in-person registration in several counties.[67] Furthermore, the Court reasoned that the Violent Offender Database was not a public record, like sex offender databases that were held remedial were.[68] Furthermore, the Court noted that Sierah’s Law was not codified in the sentences and penalties provision of the Code, distancing it from a punitive statute.[69] Finally, when considering the Kennedy v. Mendoza-Martinez factors, the Court tracked Smith’s reasoning for each relative factor, equating Sierah’s Law to each factor rendering Alaska’s sex registration guidelines remedial and non-violative of the Ex Post Facto Clause.[70] Notably, the Court cited in its reasoning for the requirement to register once a year to not be excessive in relation to the regulatory purpose a United States Sentencing Commission’s 2019 report that “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.”[71] Deeming Sierah’s Law to be less burdensome than other statutory regimes it had found remedial, the Court held Sierah’s Law as remedial and therefore non-violative of Ohio’s Retroactivity Clause.[72]

B. State v. Hubbard Dissent

In a passionate and lengthy dissent joined by Justices Donnelly and Brunner, Justice Stewart contended the majority’s Retroactivity Clause analysis failed to fully consider the Kennedy v. Mendoza-Martinez factors that led to her conclusion that Sierah’s Law is punitive in effect, therefore violative of the Retroactivity Clause.[73] Having cited the “whether the law is excessive in relation to its remedial purpose”[74] as “the most critical in determining whether a new law in fact punishes past criminal behavior,”[75] Stewart’s analysis of that factor challenged whether “registration and public disclosure schemes are a legitimate way to protect the public from people deemed to have a high risk of reoffending.”[76] Stewart noted that an offender would have no opportunity to present evidence of low risk of recidivism[77], nor would the judge have any discretion to terminate an extended reporting obligation if it found the person had been convicted of or pleaded to any other felony or any misdemeanor offense of violence during that ten-year reporting period.[78] Both of these provisions weighed toward considering the law as punitive.[79] Furthermore, when analyzing whether registration schemes really served the legislative intent as cases such as Smith and Cook asserted, Stewart noted that present statistics of repeat-homicide recidivism rates at or below 1%[80] or of sex-offense reconviction rates at 3.5%[81] undermined past precedent’s reliance on high recidivism rates.[82]

IV. Discussion

Raised in Justice Stewart’s State v. Hubbard dissent, should current evidence of low recidivism rates shape the Ohio Supreme Court’s future Retroactivity Clause analysis? Smith’s determination of Alaska’s sex registration as remedial as non-excessive in its relation to the remedial purpose heavily relied on the assumption that sex offenders were among the highest rates to re-offend.[83] Similarly, Cook’s determination that the community notice provision was remedial rested on the notion that sex offenders were more likely to re-offend than any other criminal.[84] How can that rationale comport with current statistics that demonstrate recidivism rates among targeted classes of violent offenders and sex offenders for automatic, lengthy registration are lower than non-targeted classes?[85] If the harm is substantially lower than the requirements and stigma imposed upon those citizens re-entering society, how can registration statutes be held remedial and non-violative of the Ex Post Facto Clause and Retroactivity Clause?

V. Conclusion

While precedent provides stability in the law, precedent that counters present reality should be subject to re-examination. In Ohio’s Retroactivity Clause analysis as applied to offender registration laws, Justice Stewart’s State v. Hubbard dissent reveals a gross imbalance between intended remedial effects of statutes and imposed requirements upon offenders. While the public’s safety requires remedial measures, those measures should not, in effect, inordinately punish those who have already experienced just punishment.


[1] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 97 (Stewart, J., dissenting).

[2] Smith v. Doe, 538 U.S. 84, 103 (2003); see also State v. Cook, 1998-Ohio-291, 404, 421.

[3] O.H. CONST. art. II, § 28.

[4] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 1.

[5] U.S. CONST. art. I, § 10, cl. 1.

[6] Smith v. Doe, 538 U.S. 84, 92 (2003).

[7] Smith v. Doe, 538 U.S. 84, 92-93 (2003); State v. Cook, 1998-Ohio-291, 404, 410-11; State v. Ferguson, 2008-Ohio-4824, ¶ 13; State v. Williams, 2011-Ohio-3374, ¶ 9.

[8] A remedial statute is “a law whose purpose is to correct an existing law that hasn’t been working or has caused some harm and not good” Remedial Statute, The Law Dictionary, https://thelawdictionary.org/remedial-statute/ (last visited Dec. 3, 2021), [https://perma.cc/QMK9-3EZN]. An example of a remedial statute is the 1960 Civil Rights Act, which expanded the 1957 Civil Rights Act by allowing the Attorney General to seek a court finding of a “pattern and practice” of discrimination in order to more fully enjoin violators from practicing voter suppression. Federal Remedial Legislation, JUSTIA, https://law.justia.com/constitution/us/amendment-15/09-federal-remedial-legislation.html (last visited Dec. 3, 2021), [https://perma.cc/9UH4-FSUX].

[9] Smith v. Doe, 538 U.S. 84, 92-93 (2003); State v. Cook, 1998-Ohio-291, 404, 410-11; State v. Ferguson, 2008-Ohio-4824, ¶ 13; State v. Williams, 2011-Ohio-3374, ¶ 9.

[10] Smith v. Doe, 538 U.S. 84, 105-06 (2003); State v. Cook, 1998-Ohio-291, 404, 413; State v. Ferguson, 2008-Ohio-4824, ¶ 36. But see State v. Williams, 2011-Ohio-3374, ¶ 21 (holding the statute to be punitive).

[11] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 108 (Stewart, J., dissenting).

[12] Id. at ¶ 3.

[13] Id. at ¶ 45.

[14] Id. at ¶ 43-45.

[15] Id. at ¶ 97 (Stewart, J., dissenting).

[16] Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

[17] Id. at 165-166.

[18] Id.

[19] Smith v. Doe, 538 U.S. 84, 97 (2003).

[20] Id.

[21] Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (emphasis added).

[22] Id. at 168.

[23] Smith v. Doe, 538 U.S. 84, 105-06 (2003).

[24] Id. at 92.

[25] Id. at 92-93.

[26] Id.

[27] Id. at 93.

[28] Smith, 538 U.S. 84 at 93.

[29] Id. at 95.

[30] Id. at 97.

[31] Id.

[32] Id.

[33] Id. at 97-99.

[34] Id. at 100.

[35] Id. at 102.

[36] Id.

[37] Id. at 102-103.

[38] Id. at 103.

[39] Smith, 538 U.S. 84 at 103.

[40] Id. at 104.

[41] Id. at 105-106.

[42] State v. Cook, 1998-Ohio-291, 404, 414.

[43] Id. at 410-411.

[44] Id. at 410.

[45] Id. at 411.

[46] Id.

[47] Id. at 412.

[48] State v. Cook, 1998-Ohio-291, 404, 412 (citing State ex rel. Matz v. Brown (1988), 37 Ohio St. 3d 279, 281).

[49] State v. Cook, 1998-Ohio-291, 404, 412 (citing State ex rel. Matz v. Brown (1988), 37 Ohio St. 3d 279, 281).

[50] State v. Cook, 1998-Ohio-291, 404, 412.

[51] Id. at 413.

[52] Id. at 414.

[53] Id.

[54] State v. Williams, 2011-Ohio-3374, ¶ 21.

[55] Id. at ¶ 8.

[56] Id. at ¶ 9.

[57] Id. at ¶ 16, 3, 20.

[58] State v. Williams, 2011-Ohio-3374, ¶ 20.

[59] Id.

[60] Id.

[61] Id.

[62] Id. at ¶ 22.

[63] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 45.

[64] Id. at ¶ 17.

[65] Id. at ¶ 18.

[66] Id. at ¶ 40.

[67] Id. at ¶ 29.

[68] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 29.

[69] Id. at ¶ 31.

[70] Id. at ¶ 34-39.

[71] Id. at ¶ 41.

[72] Id. at ¶ 44-45.

[73] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 65 (Stewart, J., dissenting).

[74] Id. at ¶ 67 (Stewart, J., dissenting).

[75] Id.

[76] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 105 (Stewart, J., dissenting).

[77] Id. at ¶ 106 (Stewart, J., dissenting).

[78] Id.

[79] Id.

[80] Id. at ¶ 97 (Stewart, J., dissenting).

[81] Id. at ¶ 101 (Stewart, J., dissenting).

[82] Id. at ¶ 97 (Stewart, J., dissenting).

[83] Smith, 538 U.S. 84 at 103.

[84] State v. Cook, 1998-Ohio-291, 404, 413.

[85] State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, ¶ 97, 101 (Stewart, J., dissenting).