State v. Blankenship

Transcription

1 State v. Blankenship 145 OHIO ST. 3D 221, 2015-OHIO-4624, 48 N.E.3D 516 DECIDED NOVEMBER 12, 2015 I. INTRODUCTION On November 12, 2015, the Supreme Court of Ohio issued a final ruling in State v. Blankenship, 1 a case involving the highly controversial realm of sex offenders and one of the most fundamental rights under both the United States Constitution and the Ohio Constitution the right against cruel and unusual punishment. 2 The five-two decision carries significant weight regarding the constitutionality of Ohio s mandatory sex offender classifications. The case also sheds light on how a court is likely to interpret the unique protections afforded to Ohioans under article I, section 9 of the Ohio Constitution, as well as when a court is likely to apply those protections to individuals who have been classified as sex offenders. II. STATEMENT OF FACTUAL AND PROCEDURAL HISTORY A. Factual History In 2011, twenty-one year old Travis Blankenship logged into Phonezoo.com, a social media website where he met and frequently conversed with fifteen year old M.H. 3 Through the course of their conversations, both Blankenship and M.H. informed each other of their true age and acknowledged that there was a six-year age gap between them. 4 Despite this age difference, however, Blankenship and M.H. continued communicating online and eventually met in person. 5 Following their faceto-face meeting, they entered into a consensual sexual relationship, which consisted of having intercourse on two different occasions Ohio St. 3d 221, 2015-Ohio-4624, 48 N.E.3d 516 (2015). 2. Id. at 222, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 518 (for policy reasons, the Court only provides the victim s initials). 4. Id., 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 222, 2015-Ohio , 48 N.E.3d at

2 978 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 42 B. Procedural History 1. The Charge and Pre-Sentence Investigation Blankenship was charged with unlawful sexual conduct with a minor in violation of Ohio Revised Code section (A) a felony of the fourth degree. 7 The statute provides, in pertinent part: No person... eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard. 8 Faced with the foregoing charge, Blankenship pled guilty. 9 In accordance with the pre-sentence investigation, the trial court ordered that Blankenship undergo a psychological evaluation. 10 The psychologist tasked with conducting the evaluation concluded that Blankenship did not show any characteristics of what he considers a sex-offender despite his commission of a sex offense, and that Blankenship therefore posed a low-risk of reoffending. 11 The psychologist discouraged sex offender specific treatment, finding such treatment unethical to implement because Blankenship [had] no disorder to treat. 12 Instead, the psychologist recommended psychotherapy as the more appropriate form of treatment. 13 Even after a new evaluation was ordered on account of Blankenship violating his court order by contacting M.H. while the pre-sentence investigation was still pending the psychologist s opinion and recommendation did not change Court Proceedings The trial court convicted Blankenship and sentenced him to five years of community control, consisting of a six-month jail sentence for which he was only required to serve twelve days. 15 In addition, the trial court designated him as a Tier II sex offender/child-victim offender pursuant to 7. Id., 2015-Ohio , 48 N.E.3d at OHIO REV. CODE ANN (A) (LexisNexis Supp. 2016). 9. Blankenship, 145 Ohio St. 3d at 222, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Id. at 243, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 222, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 518.

3 2016] STATE V. BLANKENSHIP 979 Ohio Revised Code section (F)(1)(b). 16 As a Tier II sex offender, Blankenship was required to register in person with the sheriff of the county in which he lives, attends school, and is employed. 17 Furthermore, Blankenship was required to verify in person his residence address, place of employment, and place of education every 180 days for twenty-five years. 18 On appeal, Blankenship contended that by requiring him to register as a Tier II sex offender, the trial court imposed a sentence that violated his Eighth Amendment right against cruel and unusual punishment. 19 Based on the psychologist s opinion that he showed no characteristics of a sex offender, the fact that he had a caring relationship with M.H., and the fact that he was only twenty-one years old, Blankenship argued that the required registration period for a Tier II sex offender twenty-five years served no legitimate penological purpose in his case. 20 Relying on the Court s decision in In re C.P., 21 Blankenship urged the appellate court to follow In re C.P. s holding imposing automatic, lifetime registration and notification requirements on juvenile sex offenders violates the constitutional right against cruel and unusual punishment and extend it to his case. 22 Finding that Blankenship s Tier II sex offender registration requirement did not constitute cruel and unusual punishment, the appellate court affirmed the judgment of the trial court. 23 On appeal, the Ohio Supreme Court considered whether the registration and address-verification requirements for Tier II sex offenders constituted cruel and unusual punishment under Chapter 2950 of the Ohio Revised Code in violation of either the United States Constitution or the Ohio Constitution Id., 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 518 (citing OHIO REV. CODE ANN (A)(2) (LexisNexis Supp. 2016)). 18. Id. at , 2015-Ohio , 48 N.E.3d at 518 (citing OHIO REV. CODE ANN (B)(2) (LexisNexis Supp. 2016); OHIO REV. CODE ANN (B)(2) (LexisNexis Supp. 2016)). 19. State v. Blankenship, 2014-Ohio (2d Dist. 2014) [hereinafter Blankenship II]. 20. Blankenship II, 2014-Ohio Ohio St. 3d 513, 2012-Ohio-1446, 967 N.E.2d 729 (2012). 22. See Blankenship II, 2014-Ohio See id., 2014-Ohio (2-1 decision). 24. See Blankenship, 145 Ohio St. 3d at 225, 2015-Ohio , 48 N.E.3d at 520.

4 980 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 42 III. THE COURT S DECISION AND RATIONALE A. Majority Opinion by Justice Lanzinger Justice Lanzinger wrote the majority opinion, which Chief Justice O Connor and Justice French joined. 25 When addressing Eighth Amendment challenges to mandatory sex offender classification for adults, the Court conceded that while most states have dismissed such challenges because their registration requirements were found to be remedial not punitive Ohio is not one of those states. 26 The Court has previously held that the reporting and registration requirements for sex offenders are not only punitive in nature, but that they are also unconstitutional when applied to certain juveniles. 27 However, the Court held that, when applied to adults, the registration and address verification requirements for Tier II sex offenders did not constitute cruel and unusual punishment; therefore, there was no violation of either the Eighth Amendment to the United States Constitution or article I, section 9 of the Ohio Constitution. 28 In Blankenship, the Court first addressed the claim of cruel and unusual punishment under the Eighth Amendment to the United States Constitution and focused on whether the punishment in question was disproportionate to the crime. 29 To make this determination, the Court relied on Graham v. Florida. 30 There, the Supreme Court of the United States engaged in a twostep process: (1) is there a national consensus against the sentencing practice at issue; and (2) based on the court s judgment, does the punishment violate the Constitution? 31 In order to answer the inquiry in step two, the Court considered three factors: (1) the culpability of the offender, (2) the severity of the punishment, and (3) the penological justifications. 32 Applying the Graham process, the Court held that Blankenship s challenge failed both steps. 33 In the first step, the Court stated that Blankenship conceded to the lack of a national consensus against lengthy sex-offender registration for individuals like himself. 34 As for the second 25. See id. at 222, 231, 2015-Ohio , 38, 48 N.E.3d at 517, Id. at , 2015-Ohio , 48 N.E.3d at See id., 2015-Ohio , 48 N.E.3d at 519 (citing State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (2011); In re C.P., 131 Ohio St. 3d 513, 2012-Ohio-1446, 967 N.E.2d 729 (2012)). 28. See id. at 231, 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 225, 2015-Ohio , 48 N.E.3d at U.S. 48 (2010). 31. Blankenship, 145 Ohio St. 3d at 226, 2015-Ohio , 48 N.E.3d at 521 (quoting Graham, 560 U.S. at 61). 32. Id. at , 2015-Ohio , 48 N.E.3d at 521 (citing Graham, 543 U.S. at 67). 33. See id. at , 2015-Ohio , 48 N.E.3d at Id. at 226, 2015-Ohio , 48 N.E.3d at 521.

5 2016] STATE V. BLANKENSHIP 981 step, the Court found that the three considerations were not in Blankenship s favor: (1) the six-year age difference between Blankenship and M.H. made him more culpable and more deserving of punishment; (2) the Tier II registration requirements, although burdensome, did not amount to cruel and unusual punishment; and (3) the perceived high rate of recidivism and resistance to treatment among sex-offenders, coupled with the economic benefits of avoiding the cost of imprisonment, weigh in favor of the punishment. 35 Next, the Court addressed the claim of cruel and unusual punishment under article I, section 9 of the Ohio Constitution. 36 Like the United States Constitution, the Ohio Constitution prohibits cruel and unusual punishment, but provides protection independent of the Eighth Amendment. 37 For that reason, when considering a claim under article I, section 9 of the Ohio Constitution, courts analyze whether the punishment at issue is so greatly disproportionate to the offense as to shock the sense of justice of the community. 38 Addressing Blankenship s reliance on In re C.P., the Court stated that the concerns which led to its conclusion that sex-offender reporting and notification requirements for certain juveniles violated Ohio s prohibition against cruel and unusual punishment were largely absent in his case. 39 In addition, the Court found that because similar requirements are imposed throughout the states, Ohio s punishments are not deemed shocking to the sense of justice of the community. 40 Therefore, because the Tier II registration requirements did not meet the burden of being disproportionate to the crime or shocking to a reasonable person, the Ohio Supreme Court affirmed the appellate court s decision and held that the requirements under Chapter 2950 of the Ohio Revised Code did not constitute cruel and unusual punishment in violation of either the United States Constitution or the Ohio Constitution. 41 B. Concurring Opinion by Justice O Donnell Justice O Donnell, joined by Justice Kennedy, concurred in the judgment to affirm the court of appeals decision. 42 However, Justice O Donnell disagreed with the majority s analysis, stating that because Ohio s registration and address verification requirements for Tier II sex- 35. Id. at , 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 229, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 523 (quoting State v. Chaffin, 30 Ohio St. 2d 13, 282 N.E.2d 46 (1972)). 39. Id. at 230, 2015-Ohio , 48 N.E.3d at Id. at , 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 231, 2015-Ohio , 48 N.E.3d at Id. at , 2015-Ohio , 48 N.E.3d at 525.

6 982 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 42 offenders is a civil requirement and not a punitive one, the Eighth Amendment should not apply to the case. 43 After reviewing the history of Ohio s sex offender registration, Justice O Donnell stated that the purpose behind classifying offenders into tiers based on the nature of the conviction was to protect[] the public from the risk of recidivism, not to impose punishment on the offender. 44 Thus, in Justice O Donnell s opinion, the majority s determination that Blankenship s label as a Tier II sex-offender was proportionate to his offense was unnecessary. 45 These concerns, Justice O Donnell noted, are matters of policy that are the province of the General Assembly. 46 Acknowledging the Court s precedent and the decisions of the federal circuit courts, Justice O Donnell concluded by arguing that the Court should overrule its decisions in Williams and C.P., and in doing so, hold that sex offender registration is not punishment for an offense. 47 C. Dissenting Opinions by Justice Pfeifer and Justice O Neill Justice Pfeifer issued the first dissenting opinion, stating that because Blankenship s requirements as a Tier II sex offender lack proportionality and would be considered shocking to any reasonable person, the judgment of the court of appeals should be reversed. 48 Expressing great concern with the current statutory scheme, Justice Pfeifer argued that the sentencing judge is not provided with any discretion when imposing the registration and address verification requirements, which punishes the offender according to a one-size-fits-all standard. 49 In closing, Justice Pfeifer stated that in certain circumstances, such as those in Blankenship, the Court should hold that the twenty-five year reporting requirements are onerous enough to constitute cruel and unusual punishment. 50 In the second dissenting opinion, Justice O Neill expanded upon Justice Pfeifer s concerns, stating that Blankenship s case is another example of how Ohio s criminal sentencing is dictated by the one-size-fits-all mentality. 51 Justice O Neill argued that Blankenship s requirements, which he will face until he is forty-six years old, fall directly within the definition of the phrase cruel and unusual. 52 Acknowledging that the trial 43. Id. at 232, 2015-Ohio , 48 N.E.3d at Id. at 239, 2015-Ohio , 48 N.E.3d at Id. at 240, 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 240, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at Id. at , 2015-Ohio , 48 N.E.3d at Id. at 241, 2015-Ohio , 48 N.E.3d at Id. at 242, 2015-Ohio , 48 N.E.3d at Blankenship, 145 Ohio St. 3d at 242, 2015-Ohio , 48 N.E.3d at Id. at , 2015-Ohio , 48 N.E.3d at 534.

7 2016] STATE V. BLANKENSHIP 983 court was required to impose the penalty as prescribed by law, Justice O Neill argued that by following the law as it is written and by not permitting any discretion, Blankenship received a punishment that will guarantee an unnecessarily long term of public humiliation only. 53 IV. ANALYSIS A. Introduction The Eighth Amendment to the United States Constitution states, Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 54 Although the original prohibition against cruel and unusual punishments may have been directed towards barbarous methods of punishment, today s courts have interpreted the clause as a prohibition against sentences that are disproportionate to the gravity of the crime committed. 55 Although article I, section 9 of the Ohio Constitution contains a similar prohibition, it provides protection independent of what is provided under the Eighth Amendment. 56 For this reason, it was well within the Court s power to hold that the registration and address verification requirements for Tier II sex offenders do not constitute cruel and unusual punishment under either federal or state law. 57 An analysis of the Eighth Amendment s proportionality standard, the unique protection provided under the Ohio Constitution, and the problems caused by Ohio s sex offender registration demonstrate that the majority s reasoning in finding no violation of state law was misguided. B. Discussion 1. The Eighth Amendment s Proportionality Standard At the heart of the Eighth Amendment s protection against cruel and unusual punishment is the concern for proportionality that the punishment for a crime should be proportional to the offense committed. 58 The issue is not whether the punishment does in fact constitute torture, but rather, 53. Id. at 243, 2015-Ohio , 87, 48 N.E.3d at Id. at 225, 2015-Ohio , 48 N.E.3d at 520 (quoting U.S. CONST. AMEND. VIII) (emphasis added). 55. See William H. Mulligan, Cruel and Unusual Punishments: The Proportionality Rule, 47 FORDHAM L. REV. 639, 640 (1979). 56. See Blankenship, 145 Ohio St. 3d at 229, 2015-Ohio , 48 N.E.3d at Id. at 231, 2015-Ohio , 48 N.E.3d at 525; see (A)(2); (B)(2); (B)(2). 58. Weems v. United States, 217 U.S. 349, 367 (1910) ( [P]unishment for crime should be graduated and proportioned to offense. ).

8 984 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 42 the issue is whether the punishment is disproportionate to the crime. 59 Cases addressing this proportionality issue fall within two classifications: those involving challenges to the length of term-of-years sentences, and those dealing with categorical restrictions. 60 Until the United States Supreme Court s decision in Graham, categorical restrictions had applied only in cases involving the death penalty. 61 In Graham, the Court used the categorical approach and applied a two-step model to find that sentencing juveniles to life without parole for non-homicide related crimes was cruel and unusual punishment. 62 Since the goal of the proportionality test is to reduce the input of judicial subjectivity in [E]ighth [A]mendment jurisprudence, 63 a court first determines if there is a national consensus against the sentencing practice contested, and then (in its own independent judgment) determines whether the relevant punishment violates the Eighth Amendment. 64 The majority in Blankenship follows the approach from Graham. By considering Blankenship s culpability, the severity of his punishment, and the penological justifications for sex-offender registration requirements, the majority found that his punishment as a Tier II sex offender was proportionate to his crime. 65 As for Blankenship s culpability as an offender, the majority logically found that his conscious decision (as a twenty-one year old) to engage in a sexual relationship with a fifteen-year old girl made him more culpable and more deserving of punishment. 66 While Blankenship s argument that his young age, lower maturity level, and consensual relationship with M.H. warrant a finding of low culpability and an ultimately less severe punishment is justified, it is unfortunately overshadowed by his overall lack of judgment. At the end of the day, Blankenship was an adult who chose to have sexual relations with a minor. The Court acknowledged this and had no trouble finding that his case was a perfect fit for Ohio s current Tier system. 59. Blankenship, 145 Ohio St. 3d at 225, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 520 (citing Graham, 560 U.S. at 59). 61. Id. at , 2015-Ohio , 48 N.E.3d at (citing Graham, 560 U.S. at 61-62). 62. Id. at 226, 2015-Ohio , 48 N.E.3d at Mulligan, supra note 55, at Blankenship, 145 Ohio St. 3d at 226, 2015-Ohio , 48 N.E.3d at 521 (citing Graham, 560 U.S. at 61). 65. Id. at , 231, 2015-Ohio , 38, 48 N.E.3d at , Id. at 227, 2015-Ohio , 48 N.E.3d at

9 2016] STATE V. BLANKENSHIP Ohio s Unique Protection: Shocking to the Community s Sense of Justice Like the United States Constitution, the Ohio Constitution affords individuals with the same protection against cruel and unusual punishment; however, Ohioans receive double protection. 67 In addition to a lack of proportionality, Ohio courts examine whether a reasonable person acknowledging the circumstances of the case would consider the punishment to be shocking. 68 Therefore, if the punishment is not so greatly disproportionate to the offense as to shock the sense of justice of the community, it does not violate the prohibition against cruel and unusual punishment under article I, section 9 of the Ohio Constitution. 69 Despite the Ohio Constitution s unique protection, the Blankenship majority found that Blankenship failed to prove that Tier II sex offender registration requirements constituted cruel and unusual punishment in his circumstance. 70 In making this decision, the majority referenced State v. Bradley, 71 where the Ohio First District Court of Appeals held that Tier II registration requirements associated with a conviction for unlawful sexual conduct with a minor did not amount to cruel and unusual punishment. 72 Bradley involved a non-consensual sexual relationship between a thirty-year old man and a fourteen-year old girl. 73 Not only did the defendant deny having any sexual activity with the victim, but he also argued that the relationship was simply platonic. 74 This point of comparison, although logical, is clearly misguided when applied to Blankenship s case. 67. Id. at 229, 2015-Ohio , 48 N.E.3d at 523. Addressing article I, section 9 of the Ohio Constitution, and its unique protection for Ohioans, the Supreme Court of Ohio stated: The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups. Id., 2015-Ohio , 48 N.E.3d at 523 (quoting Arnold v. Cleveland, 67 Ohio St. 3d 35, 616 N.E.2d 163 (1993) (paragraph one of the syllabus)). 68. Blankenship, 145 Ohio St. 3d at 299, 2015-Ohio , 48 N.E.3d at 523 (quoting McDougle v. Maxwell, 1 Ohio St. 2d 68, 70, 203 N.E.2d 334, (1964)). 69. Id., 2015-Ohio , 48 N.E.3d at 523 (quoting Chaffin, 30 Ohio St. 2d at 13, 282 N.E.2d at 46). 70. Id. at 231, 2015-Ohio , 48 N.E.3d at Ohio-6266 (1st Dist. 2011). 72. Blankenship, 145 Ohio St. 3d at 230, 2015-Ohio , 48 N.E.3d at 524 (citing Bradley, 2011-Ohio ). 73. Bradley, 2011-Ohio ( The victim testified that when Bradley tried to put his penis into her vagina, she said, No. ). 74. Id., 2011-Ohio

10 986 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 42 Blankenship was twenty-one years old and M.H. was fifteen when they began their sexual relationship an age difference of only six years, not sixteen years. 75 It was a relationship that M.H. reported as being consensual, and one that Blankenship described as caring. 76 Second, after evaluating Blankenship s possible threat to society, a psychologist found that he was not a sex offender, that his risk of reoffending was low, and that he did not require sex-offender treatment. 77 Next, facing a possible sentence of eighteen months in prison, he was sentenced to six months, and released after twelve days. 78 These considerations not only demonstrate the majority s questionable holding, but further illustrate the dissent s conclusion that the twenty-five year reporting requirements when applied to Blankenship are onerous enough to constitute cruel and unusual punishment. 79 This one-size-fits-all system is a problem, and Blankenship is a clear illustration of what happens to those who don t rightfully fit the label, but are nevertheless branded with it. V. CONCLUSION No reasonable person can condone sexual relations between an adult and a minor. Undoubtedly, Ohio s Tier classification system has successfully warned and protected the public from persons who pose a substantial threat. However, being convicted of a sex offense means becoming defined by the crime. The motivations of those who are convicted remain unacknowledged, and their backstories are overshadowed by the disgraceful nature of the felony. Thus, Ohio courts should exercise more discretion before issuing the label sex offender and acknowledge that instituting a one-size-fits-all mentality 80 is not a just application of the law, but may even constitute cruel and unusual punishment in violation of a constitutional right. In this case, the Ohio Supreme Court questionably relied on both legislative intent and precedent in holding that the registration and address verification requirements for Tier II sex offenders do not constitute cruel and unusual punishment in violation of either the United States Constitution or the Ohio Constitution. 81 This decision did not demonstrate that [j]ustice 75. Blankenship, 145 Ohio St. 3d at 222, 2015-Ohio , 48 N.E.3d at Id. at , 2015-Ohio , 48 N.E.3d at Brief for Appellant at 15, State v. Blankenship, 145 Ohio St. 3d 221, 2015-Ohio-4624, 48 N.E.3d 516 (2015) (No ), 2014 WL at * Blankenship, 145 Ohio St. 3d at 241, 2015-Ohio , 48 N.E.3d at Id., 2015-Ohio , 48 N.E.3d at 533 (Pfeifer, J., dissenting). 80. Id. at 242, 2015-Ohio , 48 N.E.3d at 534 (O Neill, J., dissenting). 81. Id. at 231, 2015-Ohio , 48 N.E.3d at 525.

11 2016] STATE V. BLANKENSHIP 987 is blindfolded to reflect neutrality, but rather highlighted that it has the ability to be sightless to the consequences of a Tier II Sex Offender classification on a twenty-one-year-old for half of his adult life. 82 CAMERON MICHAEL LENT RODE 82. Blankenship II, 2014-Ohio (Donovan, J., dissenting).