Ky. Supreme Rules Sex Offender Registration Statute Unconstitutional Ex Post Facto law when applied Retroactively

 

The Supreme Court has affirmed a District Court ruling of Judge Martin J. Sheehan (he now is a Circuit Judge).

 

LawReader Synopsis:  For full text of case click case number

2007-SC-000347-CL.pdf

 

APPEAL FROM KENTON DISTRICT COURT V. HONORABLE MARTIN J. SHEEHAN, JUDGE

 

The question of law to be answered is whether KRS 17 .545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17.545 is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.

 

Like every other state, Kentucky has enacted a version of Megan’s Law. The General Assembly first enacted sex offender registration requirements in 1994, amending them in 1996 and again in 2000. The 2000 amendments to our Megan’s Law also included residency restrictions on sex offenders as a condition of their probation or parole . That restriction, codified at KRS 17.495…

 

The current residency restriction statute, effective July 12, 2006, codified at KRS 17.545, reads as follows :

 

(1) No registrant., as delIned in KRS 17.500, shall

reside within one thousand (1,000) feet of a high

school, middle school, elementary school,

preschool, publicly owned playground, or licensed

day care facility. The nieasurement shall be taken

in a straight line froni the nearest property line of

the school to the nearest: property line of the

registrant’s place of residence….

 

While the original residency restriction statute applied only to those on probation, parole, or other form of supervised release, the current statute applies to all registrants regardless of probation or parole status .

 

The district court concluded that KISS 17 .545, as applied to Respondent, violated the ex post facto clauses of the United States and Kentucky Constitutions . In its thorough opinion, the district court found that the General Assembly had intended KRS 17.545 to be punitive . The district court also found that, even if KRS 17.545 were not clearly punitive, its effect was punitive. Upon finding the statute to be unconstitutional as applied to Respondent, the district court declined to address the remaining constitutional challenges .

 

We granted certification to resolve this important constitutional ISSUE…

 

The United States Constitution and the Kentucky their respective ex post facto clauses, prohibit. the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law’s enactment.

 

As a threshold question, for the law to be considered ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected  72 S.W.3d at 571

 

 There is no question that KRS 17.545 applies to conduct by respondent, that. occurred well before  the law’s enactment. In addition, Respondent, is disadvantaged by the law, as it restricts where he may live. However, to violate the ex post facto clause, the statute must also be punitive. Martin v. Chandler , 122 S.W.3d 540, 547 (Ky. 2003)

 

We conclude that the General Assembly intended KRS 17.545 to be a civil, nonpunitive, regulatory scheme .

 

As in Smith, the five factors relevant here are, “whether, in its necessary operation, the regulatory scheme (1) has been regarded in our history and traditions as punishment., (2) promotes the traditional aims of punishment, (3) imposes an affirmative disability or restraint., (4) has a rational connection to a nonpunitive purpose, or (5) is excessive with respect, to the nonpunitive purpose. Id .

 

When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction

begins to look far more like retribution for past offenses than a regulation intended to prevent further ones .

 

The registrant also faces a constant threat of eviction “because there is no way for him or her to find a permanent home…As such, a registrant cannot establish a permanent home. KRS 17.545 clearly imposes affirmative disability upon ….and restraints upon registrants.

 

The Commonwealth argues that residency restrictions serve a non punitive purpose of public safety, which is undoubtedly a legitimate purpose. The question is therefore whether KRS 17.545 bears a rational connection to public safety.

 

KRS 17 .54-5 does not oven restrict an offender from living with the victim, so long as they live, and sleep outside of the prohibited area .

 

All KRS 17.545 prohibits is residing in a home within the prohibited zone. It does not regulate contact with children.

 

KRS 17.545 is connected to public safety. However, the statute’s inherent flaws prevent that, connection from being “rational.” Therefore, we conclude that, KRS 17.545 does not have a rational connection to a nonpunitive purpose.

 

The record before us does not, reveal whether or not Respondent might be a threat to children and to public safety. But this is exactly why KRS 17.545 is excessive.

 

Of the five Smith factors, all five weigh in favor of concluding that KRS 17 .545 is punitive in effect. Therefore, we conclude that KRS 17.545 is so punitive in effect as to negate the General Assembly’s intention to deem it civil.

 

IV. CONCLUSION

 

Although the General Assembly did not intend KRS 17 .545 to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them, civil. Therefore, the statute may not constitutionally be applied….

 

The law is so certified .

 

Cunningham, Noble, Schroder, Scott . and Venters, JJ ., concur.

 

Abramson, J., dissents by separate opinion in which Minton, CJ., joins.

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