View "The Advocate" hereTo read the entire PDF, click the above. Below is only the portion starting on page 14 of the PDFBy Samuel N. Potter, Appeals BranchIn the last edition of the Advocate, part one of this article summarized the changes House Bill Three (HB3) made to the sex offender residency requirements (SORR). Part two of this article will examine a case from Kenton District Court that ruled the new SORR violated the Ex Post Facto Clause of the Constitutions of the United States and Kentucky. Copies of the motion and order can be downloaded from the 2007 annual conference materials from the session on sex offender registration on DPA’s intranet. If you do not have access to DPA’s intranet, feel free to contact the author at
sam.potter@ky.gov or
502 564-8006.
The Kenton District Court case involved more than 10 defendants and five defense lawyers, both private and public defenders. All the defendants became sex offender registrants (registrants) before HB3 took effect. The defendants challenged the constitutionality of HB3 as applied to them on multiple grounds: Equal Protection violation; Substantive Due Process violation; Ex Post Facto violation; and Inalienable Property Rights violation. The first three grounds involved both the Kentucky and United States Constitutions, while the last ground relied solely on the Kentucky Constitution. The Kenton District Court based its dismissal ruling only on the Ex Post Facto Clause, though it intimated that the remaining grounds raised substantive issues that will have to be resolved in the future. The Court’s observation is sound. The implication of this statement is significant for criminal defense attorneys. Ex Post Facto challenges will not succeed in each case. Thus, it is worth the time and effort to challenge the SORR on multiple grounds, not knowing which Constitutional provision may warrant relief in any given situation.
The Court spent about eight pages of its 36 page opinion on the historical background of the sex offender registration system (SORS). This included a detailed retelling of the facts of the crime committed against Megan Kanka in New Jersey. This horrible incident provided the political motivation to pass SORS across the nation, which are commonly referred to as Megan’s Law. The SORS attempted to provide a quick solution to the problem that communities face of not knowing where sexual offenders live. Over time, however, the registration requirements and restrictions have grown more burdensome, and the punishments for violations have grown more harsh. The defendants challenged the premises upon which the SORR are founded. The first premise assumed that many sexual offenders target unknown children at a high rate. The second premise assumed that sex offenders re-offend at a high rate after being released. The Court examined some scientific studies that supported the defendants’ challenges of these two premises. The findings are striking and are worth repeating here.
- Many studies show that sexual abuse most often occurs in a preexisting relationship. For example, 80% of girls and 60% of boys are abused by someone they know.
- No more than 10% of child sexual abuse cases involve strangers to the victim.
- In 1997, only 7% of child molesters in prison committed their offense against a stranger.
- More specifically, 3% of children under 12 were abused by strangers, and 11% of children 13 to 17 were abused by strangers.
The Court stated: “The implication of these and countless other studies is that laws designed to protect our children, to be effective, should focus on preventing sex offenders from harming children whom they know, not fixated on preventing the rare attacks by strangers. Legislators however, continue to focus on high profile, emotionally charged cases like that of Megan Kanka, and craft measures designed to combat the predator lurking in the bushes.” Opinion, p.10.
A causal connection has not been discovered that links an increased re-offense rate to the offenders residence near a school or playground. Of 500 sex offenders who legally lived close to schools, only one was rearrested, and the arrest did not involve another sexual assault. The Minnesota Department of Corrections concluded that residency restrictions were not effective in deterring the offender from re-offending because only two re-offending acts were committed on unknown victims in parks, but those parks were several miles from the re-offenders’ homes.
Studies refute the premise that sex offenders re-offend at a high rate.
- After five years, the re-offense rate for child molesters was 12.7% in a study of 29,000 sex offenders.
- Only 14% of sex offenders released from prison in 1994 reoffended.
- Of child molesters released in 1994, 3% were rearrested for a sexual assault, 14% were rearrested for a violent offense, and 39% were rearrested for any offense including parole violations and traffic offenses. Id.
- Of all prisoners released in 1994, 68% were rearrested for any offense in three years. Id.
The Court concluded this section by quoting another article: “Residency restrictions suffer from several practical problems that call into question their basis, efficacy, and fairness. Their scientific premise is spurious and only leads to over-inclusive and ineffective restrictions that will do nothing to stop the small fraction of sex offenders who will harm unknown children again.” Opinion, p. 11-12.9 With this background information providing context, the Kenton District Court proceeded to its Ex Post Facto analysis.
The Court’s Ex Post Facto analysis consisted of over 20 pages. “No state shall . . . pass any . . . ex post facto law.” U.S. Const., Art. I, §10. “No ex post facto law . . . shall be encacted.” Ky. Const., §19(1). The Court found no U.S. Supreme Court case directly on point regarding whether the SORR violates the Ex Post Facto Clause. However, the case of Smith v. Doe, 538 U.S. 84, 105-106 (2003), upheld the constitutionality of the SORS, ruling that it “is nonpunitive and its retroactive application does not violate the Ex Post Facto Clause.” Opinion, p. 13. Based on Smith v. Doe, the Eighth Circuit has upheld the constitutionality of SORR. Doe v. Miller, 405 F.3rd 700 (8th Cir. 2005). The Kenton District Court disagreed with the conclusion of Doe v. Miller because of the plain language found in Smith v. Doe: “offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision.” Opinion, p.14 (quoting, Smith v. Doe, 538 U.S. at 101; emphasis mine.)
Determining whether a statute violates the Ex Post Facto Clause consists of a two step analysis. Step one requires the court considering the issue to ascertain whether the legislature intended the statute to impose punishment or establish civil proceedings. Id. at 92. The inquiry ends if the legislature intended to impose punishment, and the statute violates the Ex Post Facto Clause. If the legislature intended a regulatory scheme that is civil and non-punitive, then the court proceeds to the second step. Step two has the court determine whether the purpose or effect of the statutory scheme is so punitive that it negates the legislature’s intent to deem it civil. Id. Five factors that are not exhaustive or dispositive serve as useful guideposts for evaluating step two:
- Has the regulatory scheme been regarded as punishment in our history and tradition;
- Does it impose an affirmative restraint or disability;
- Does it promote the traditional aims of punishment,
- Does it have a rational connection to a non-punitive purpose, and
- Is it excessive with respect to that purpose. Id. at 97 (citing, Hudson v. United States, 522 U.S. 93, 99 (1997)).
The Court began with step one and asked whether the legislature expressly or implicitly intended the SORR to impose a criminal punishment or a civil regulation. “Considerable deference must be accorded to the intent as the legislature has stated it.” Opinion, p. 15 (quoting, Smith v. Doe, 538 U.S. at 93). The Court found that the following facts supported a finding that legislature intended the SORR to be punishment.
- The title of HB3 was “An act related sex offenses and the punishment therefore.” (Court’s emphassis.)
- Both the House and the Senate required official cost estimates from the Department of Corrections and local governments. The estimates focused on increased costs due to more people being incarcerated and more probation and parole officers.
- The sole enforcement procedure the legislature authorized with the SORR were criminal sanctions of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.
Based on these facts, the Court believed the legislature intended the law to be punitive and violated the Ex Post Facto Clause. Even though this resolved the question, the Court in an effort to be thorough proceeded to step two.
The Court moved on to step two, which is essentially a balancing test to see if the punitive purpose and/or effect of the SORR negates its civil regulation. The five factors listed above provide guidance, and courts are free to weigh the factors as they see fit. Factor one examines the historical tradition of the regulatory scheme, namely residency restrictions. The defendants argued the SORR are equivalent with the punishment of banishment. Banishment is “punishment inflicted on criminals by compelling them to quit a city, place, or county for a specified period of time, or for life.” Opinion, p. 19 (quoting, United States v. Ju Toy, 198 U.S. 253, 269-270 (1905). The Court agreed with the defendants’ argument.
Factor two considers whether the SORR imposes an affirmative duty or restraint. Because the SORR restricts where a registrant can live, the SORR is inherently an affirmative restraint. This factor distinguishes the residency restrictions from the registration system. The Kentucky Supreme Court upheld the SORS because the mere act of registering did not limit the activities of the registrant. Hyatt v. Commonwealth, 72 S.W.3d 566, 572 (Ky. 2002). The Court reasoned that unlike “registration requirements, residency restrictions do in fact impose an affirmative disability and do place limitations on the activities of the offender. . . . The punishment imposed by these statutes, banishment, is not prospective in nature.” Opinion, p. 25. That the SORR imposes an affirmative restraint on registrants cannot be denied.
Factor three addresses whether the SORR promotes the traditional aims of punishment—deterrence and retribution. Smith v. Doe found that the SORS was not retributive because it was reasonably related to sex offenders high re-offense rate, though the U.S. Supreme Court did not cite any data to support this proposition. Smith v. Doe, 538 U.S. at 102. The Kenton District Court referred to the studies it cited early to rebut that proposition and show that sex offenders are less likely to re-offend than the average person. Further evidence of the retribution nature of the SORR was the idea that a registrant could visit “his mother’s home near an elementary school all day long, each and every day, while school was in session and he allegedly posed the greatest risk to children – but he could not spend the night there after school was dismissed and the children returned to their various homes.” Opinion, 21 (citing, People v. Leroy, 828 N.E. 2d 769, 793 (Il. App. 2005(dissent))). The absence of individualized risk assessment of sex offenders bothered Justice Souter significantly enough that he concurred in Smith v. Doe and caused Justice Ginsburg to dissent. Smith v. Doe, 538 U.S. at 108-109; 116-117. The Court concluded that the SORR promoted retribution, a traditional aim of punishment.
Factors four and five are connected. The issue they seek to resolve is whether a rational connection exists between the restriction and its purpose. Factor four inquires whether the SORR has a rational connection to a non-punitive purpose. The SORR are designed to protect children from sex offenders. The Court observed that the “protection, however, is minimal at best and completely illusory at worst.” Opinion, p. 26. Registrants can still frequent schools, daycares, and playgrounds as often as they want without violating the SORR. The SORR do not prevent a registrant from living with the prior victim as long as the residence is not close to a school, daycare, or playground. The Court concluded that the “residency restrictions appear to be little more than a political placebo, offering false comfort to pacify the public’s fear of sex offenders.” Opinion, p. 27. No rational connection exists between the non-punitive purpose of protecting children and the SORR.
Factor five addresses whether SORR is excessive with respect to protecting children. The complete lack of individualized risk assessment lumps all offenders together without any consideration of the likelihood that a given person will reoffend. Justice Souter wrote in his concurring opinion that the SORS “uses past crimes as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on.” Smith v. Doe, 538 U.S. at 109. The SORR potentially subjects nonsex offenders to its jurisdiction. A defendant who car jacks a vehicle with a passenger who is 17 and is convicted of kidnapping or unlawful imprisonment would have to register as sex offender and comply with residency restrictions even though no sexual assault occurred. KRS 17.500(3)(a)(1); KRS 17.520(2)(a); KRS 17.545(1). The fluidity of the SORR contributes to its excessive nature. Where a registrant can live is subject to constant change as new schools, daycares, and playgrounds are opened. A city that desires to do so can open enough playgrounds to render all residences within its limits illegal to the registrant, effectively banishing the sex offender. Therefore, the Court concluded that the impact of the SORR is excessively punitive.
Based on this analysis, the Kenton District Court declared the SORR unconstitutional as it applied to these defendants because it violated the Ex Post Facto Clause because the scheme is punitive and not regulatory. The Court succinctly and persuasively articulated the problem with the SORR: not “only do they [SORR] dictate where an offender may or may not reside, but collaterally, they could impact where an offender’s children attend school, access to public transportation for employment purposes, access to employment opportunities, access to residential alcohol and drug abuse rehabilitation programs and even access to medical care and residential nursing home facilities for the aging offender.” Opinion, p. 30.
The constitutionality of the SORR remains an open question. Other courts in Jefferson County and Madison County have joined the Kenton District Court in declaring the SORR unconstitutional. However, the appellate courts of Kentucky have not yet addressed the issue, though cases are starting to work their way up. Until then, challenges to the constitutionality of the SORR should continue to be raised.
