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Ohio Supreme Court: Retroactive Application of Sexually Violent Predator Law Violates Ex Post Facto Clause

In 2017, Albert Townsend was indicted on numerous counts of rape and kidnapping for sexual offenses committed against three victims between 2003 and 2006. In that indictment, the grand jury included an SVP enhancement, should Townsend be convicted of those offenses. A jury found him guilty of every count, and he was sentenced to 56 years to life in prison, an enhanced sentence under the SVP law.

But the SVP enhancement applied to Townsend was changed in 2005 so that it applied only to cases where the defendant had a prior conviction for a qualifying sex offense. Under R.C. 2971.01(H)(1) at the time of Townsend’s first two offenses, the SVP enhancement only applied to “a person who has been convicted of ... a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.” On April 29, 2005, the General Assembly amended the SVP statute to remove the requirement of a prior sex offense conviction. In other words, now a first-time offender could be a “sexually violent predator” under the SVP.

Townsend appealed his SVP enhancement and won. The court of appeals ruled that the amended law was a new punishment that could not apply to offenses that occurred before its enactment. Before Townsend could be resentenced without the SVP, the Ohio Supreme Court agreed to hear the State’s appeal.

Citing U.S. Supreme Court cases going back over 200 years, the Court reiterated that the Ex Post Facto Clause of the federal Constitution forbids “every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. 386 (1798). The Court explained that the Ex Post Facto Clause is not the right againt increased punishment, “but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S.24 (1981).

The Court observed that, with the Ex Post Facto Clause, “the Framers sought to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” The critical aspect is notice of the punishment faced for a criminal offense at the time it’s committed, which is impossible when there’s a change afterward.

Under the old version of the SVP law, Townsend could not be charged as an SVP unless he had “already been convicted of a sexually violent offense,” which he was not, the Court said. Applying the SVP to his 2003 and 2005 offenses, therefore, violated the Constitution, the Court concluded.

The Court further concluded that the SVP statute being a sentencing law did not remove it from the reach of the Ex Post Facto Clause, as the State had argued. Citing the U.S. Supreme Court opinion in Peugh v. United States, 569 U.S. 530 (2013), which ruled that applying a harsher version of the federal sentencing Guidelines enacted after the offense is committed violates the Ex Post Facto Clause, the Court stated that Ohio’s SVP sentencing statute was the same idea.

The Court also rejected the State’s argument that the changes to the SVP statute were only to “clarify” that it applied to first-time offenders. “It is the effect, not the form of the law that determines whether it is ex post facto,” the Court said. “Legislative labels do not immunize laws from scrutiny under the Ex Post Facto Clause.”

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Related legal case

State of Ohio v. Townsend



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