Tuesday, July 30, 2013

KS - Judge overturns sex offender's registration extension

Kansas sex offender registry is unconstitutional punishment
Original Article


By Steve Fry

15-year extension on registration became statute in Kansas in 2011; conviction stemmed from case originating in 2003

TOPEKA - 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 (PDF) 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 with 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."

1 comment :

Chance_X74 said...

State attorneys love citing that 2003 Alaska decision but ignore the fact that the decision was made when registration was the only component, before other requirements and stipulations were continually added, and that's exactly why it was found to to be regulatory and not punitive in nature.

Since then, however, many amendments have been made across the board to add clearly punitive measures, making the invocation of the Alaskan decision faulty within the context of registration laws as implemented ten years after as registration laws are no longer just registration.

Even if one glosses over this fact, as the courts seem wont to do, the offender in this case was legally required to register for 10 years and the state should not have the power to come in before the end of the term and make an enforceable arbitrary change to that deal.