Wednesday, July 17, 2013

KS - Judge overturns 15-year extension of sex offender's registration time

Ex post facto law
Original Article
Court Ruling (PDF)


By Steve Fry

Offender's attorney thinks KBI, JoCo sheriff's office will appeal ruling

Citing the U.S. Constitution forbidding more punishment for a crime already resolved, a Shawnee County District Court judge has ordered two law enforcement agencies to terminate a man's additional 15-year offender registration requirement.

In addition, District Judge Larry Hendricks ordered the Kansas Bureau of Investigation and the Johnson County Sheriff's Office to "immediately delete" all information required by the Kansas Offender Registration Act that is publicly displayed about the man.

"I'm pleased with the ruling," Chris Joseph, the offender’s attorney, said Tuesday. "I think it's dead-on right with the law. Registration is clearly punishment, clearly punitive. When you change the rules after the fact, it's an ex post facto violation."

The registered offender was identified in district court records only as "John Doe." Doe sued KBI director Kirk Thompson and Johnson County Sheriff Frank Denning.

As for Doe's reaction to the ruling, "he's very excited that he may be able to live a normal life in the near future," Joseph said.

Kirk T. Ridgway, an Overland Park attorney representing Denning, said Tuesday, "We're reviewing the opinion and have no comment at this time."

Assistant attorney general Christopher Grunewald, one of two attorneys representing Thompson, said he hadn't received the Doe ruling.

Joseph said he "has no doubt" the KBI and Johnson County Sheriff's Office will appeal Hendricks’ ruling. There are hundreds, perhaps thousands of offenders, who are affected by the increased registration statute, Joseph said.

The Hendricks ruling isn't binding on other district court judges faced by the same set of circumstances.

But if the ruling is appealed to the Kansas Supreme Court and if that court would uphold the ruling, the KBI would have to remove everyone from its offender registry who had completed their original 10-year registration, Joseph said.

The offender registration of Doe stems from his guilty plea on Feb. 19, 2003, to a charge of indecent liberties with a child (touching). He was ordered to register as a sex offender for 10 years until 2013.

But the Kansas Legislature amended the Kansas Offender Registration Act in 2011 to require offenders convicted of indecent liberties to register for 25 years, the Hendricks decision said.

Doe filed the lawsuit on Feb. 15, 2012, asking that Hendricks find Thompson and Denning couldn't enforce the 25-year registration period against Doe "because it violates the ex post facto clause of the United States Constitution."

Hendricks agreed.

Provisions of the offender registration statute "have become oppressive to the point of punishment," Hendricks said in his 29-page ruling. "Therefore, the KORA's retroactive application assigns a new punitive measure to a crime already consummated, in violation of the ex post facto clause."

According to the 2011 statute, Doe was required by the Kansas statute to:
  • Register for 25 years until 2028.
  • Report in person four times a year in each jurisdiction he would live in, work or attend school, a potential total of 12 times a year.
  • Pay a $20 reporting fee each time and have his photograph taken.
  • Register within three days of changing residence, job or school.
  • Provide his address, phone numbers, vehicle, boat and aircraft information, professional licenses, palm prints, email address, online identities, membership in online social networks, and travel and immigration documents.
  • Notify law enforcement officers of any plans for international travel.
  • Face a potential conviction of a person felony for each violation of the law.

In affidavits, Doe and his wife said negative impacts of the offender registration law included concern that people who see his registered offender number on his driver's license, then deny him services or discriminate against him, loss of a job, landlords wouldn't rent to him, suffer a "strong sense of shame" and hopelessness, vandalism to his home, shunning of the offender's family, and impact of the registration on their children.

In opposing the lawsuit, Thompson and Denning contended the Kansas statute blocked Doe from being granted a court order relieving him from registering. The defendants also cited a U.S. Supreme Court case which upheld provisions of a retroactive Alaska offender registration law.

Hendricks said the Kansas statute was "significantly different" from Alaska’s.

Hendricks concluded the Kansas Offender Registration Act "is effectively punitive" and "is excessive in relation to its alleged purpose of protecting public safety. These provisions have become oppressive to the point of punishment. Therefore, the KORA's retroactive application assigns a new punitive measure to a crime already consummated in violation of the ex post facto clause."

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Loneranger said...

the fact that the registry is punishment shouldn't be a surprise to any judge after nearly two decades. If a judge is ignorant of this by now they should be removed from the bench. The entire scheme to register and track sex offenders was borderline at best when it was deemed regulatory and not punishment. In the early days of registering people they were not made public and so the fact they had to come in and update information for the police each year didn't look like such a big deal. However after that was established they changed the law many times to the point where there is no question that this is punitive. The courts that ruled this regulatory are now being forced to revisit parts of the ruling but have not addressed the main issue. The fact that this is punitive. If ruled punitive all sex offender laws would be ruled unconstitutional for many offenders. Like this case as the laws are being applied retroactively. They would not need to give up many of the laws as they could apply to the ones that were sentenced after they took affect. However this also could open the door to cruel and unusual punishment for many of these laws as they were only leagle if they were not deemed punishment and only regulatory. This is why we have a constitution both Federal and state that forbid making laws in this way. If the constitution is not upheld in all cases then it is worthless. To determine a law is constitutional and then to change the law after the ruling is made should be looked at and the original ruling overturned as it no longer applies as they are no longer talking about the original scheme that was borderline at best. The politicians have taken advantage of the original ruling and have used it to craft law after law on the premiss that it is only regulatory hoping when they finally hit the Supreme court again they will be able to continue as based on the original ruling they were doing nothing wrong. Fact is it doesn't take a rocket scientist to know what they were doing is taking advantage of a loophole created by one ruling made based on a judge being convinced that all they were going to do is make the person come in once a year and update information and that was as far as they were going to go. thous not really a punishment as it was only to gather information. Now it s a whole different ballgame.

Ron said...

First Oklahoma says that retroactive application violates the Ex Post Facto clause and now a couple of weeks later Kansas is saying the same thing. It seems like finally some Judges are opening their eyes and seeing the how these changes in registration laws are punitive. The whole registration scheme is a house of cards with new laws piled onto old laws, it will collapse one day. I just hope it's soon.

CJ Soup said...

I just hope that if the ruling is appealed, that the Kansas Supreme Court judge see this ruling in in fact following the US Constitution. I so wished that in the beginning the laws would have included level of offenses. I know people who we do not need to waste tax payers dollars to watch and I also know people who really do. Example, 18 years boy is dating your 16 year old daughter. Everythings great, you know they are probably having sex but thats ok because Johhny is helping you work on your car or house, going fishing with you, quarterback of the football team you get the point. all of a sudden they get in a fight bad names are called and daddy gets mad and files charges. Then there is the 53 yr old luring 14 yr olds into their basements. Quite a difference. Or the person who got caught urninating between a couple of cars. Johhny and the guy peeing are probably not a danger to scoiety. Just a thought.