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Residency law isn’t for prior offenders

Published: Thu, February 21, 2008 @ 12:00 a.m.

A man was ordered to move from his home, which is within 1,000 feet of a school.



COLUMBUS — A 2003 law restricting certain sex offenders from living within 1,000 feet of a school can’t be applied retroactively, according to an Ohio Supreme Court Decision released Wednesday.

The high court ruled 6-1 the law doesn’t apply if the offense was committed or the residency established before the law went into effect.

“Our conclusion that [the 2003 law] was not expressly made retrospective precludes us from addressing the constitutional prohibition against retroactivity,” wrote Chief Justice Thomas Moyer in the majority opinion. “We hold that because [the law] was not expressly made retroactive, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute.”

The majority maintained the Legislature knew how to make legislation retroactive if that was its intent and cited cases in which lawmakers at the time had done just that.

The issue came before the high court from the Hamilton County case of Gerald Porter.

Porter purchased his home in 1991 and was later ordered to register as a sexually oriented offender after his conviction on a sexual battery charge in 1999. After passage of the 2003 legislation, Porter was ordered to move from his home, which is within 1,000 feet of a school.

The order was upheld by the 1st District Court of Appeals, but the decision conflicted with the decision of the 2nd District Court of Appeals on a similar issue.

Justice Terrence O’Donnell disagreed with the majority and said the legislative intent to keep the offenders from living within 1,000 feet of a school no matter when the offense was committed.

“If the General Assembly had intended only to prohibit individuals from establishing a residence within 1,000 feet of a school after its adoption of this statute, it did not need to also prohibit those individuals from occupying residential premises — but, it did so,” wrote Justice O’Donnell.

“The General Assembly, in choosing to prohibit both the establishment of a residence and the occupation of a residential premises, intended to preclude present and future conduct regarding the location of a residence of persons described in this statute,” he wrote.

David Singleton of the Cincinnati-based Ohio Justice & Policy Center represented Porter on the matter. He said Porter was “ecstatic” to be able to rejoin his wife and their two teenage sons since he was not able to live with them since October 2005.

“This is a landmark decision,” Singleton said in a prepared statement. “The Ohio Supreme Court has made it clear that it will apply and uphold the law regardless of the unpopularity of the defendant. As an increasing number of law enforcement groups, prosecutors, and victims rights advocates have recognized, residency restrictions are ineffective as child protection measures and actually make the community less safe by giving the community a false sense of security and driving some offenders underground making it virtually impossible for law enforcement to monitor them.”

Hamilton County Assistant Prosecutor Paula Adams said her office will not pursue the matter further. “We certainly respect the decision of the Ohio Supreme Court,” she said and added it is now up to the Ohio General Assembly to correct the issue. “I think it if was their intent, they should correct it,” Adams said.

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