Louisville District Court Judge Rules Ky. Sex Offender Law Unconstitutional

LawReader Note:  A District Judges ruling affect only the case on which he is ruling.  Other courts are not required to follow that decision as precedent.  However, such a ruling may provide guidance for other courts.  This ruling will likely be appealed by the Commonwealth to the Jefferson Circuit Court, and thereafter either party could seek a discretionary review in the Court of Appeals.

By Jason Riley   The Courier-Journal               July 24, 2007

 A Jefferson District Court judge today ruled the state’s new sex offender law is unconstitutional and should not apply to criminals convicted before the restrictions took effect in July 2006.

Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged under a law that prevents them from living within 1,000 feet of a playground, school or day care.

In the case of Stanley S. Bottom, who was charged with a misdemeanor violation of the sex offender residency restriction law, Armstrong ruled the law was, in effect, a second punishment, which is unconstitutional, instead of a monitoring action.

Michael Goodwin, an attorney for Bottom, said Armstrong “has recognized that when an individual is punished by a judge and jury, the legislators can’t, many years later, adopt a second punishment for the same person.? said

Similar rulings have been handed down in Kenton and Madison counties, but neither the state Appeals Court or Supreme Court has decided the issue yet. The case in Kenton has been appealed to the Supreme Court.

Armstrong said in his decision today that a higher court will ultimately decide the issue.

While Armstrong’s decision is not binding for other judges, “the logic could be applied by judges statewide,? Goodwin said.

The Jefferson County Attorney’s Office is reviewing the decision and may appeal, said Julie Hardesty, first assistant with the office.

“We’re concerned,? she said. “It’s a public safety concern.?

Under the law, which took effect a year ago, sex offenders are barred from living within 1,000 feet of a school, licensed day-care center and public parks with pools or playgrounds.

Jefferson County has about 760 registered sex offenders. And the county has 12 public pools, as well as playgrounds in all 122 parks.

The new law covers all registered offenders — about 5,800 in Kentucky. The old law applied only to about 1,200 registered sex offenders who are on probation or parole.

The law required them to move by Nov. 11 and provided no exemption, regardless of age or illness. Initial violations are misdemeanors punishable by up to 12 months in jail; subsequent violations are felonies for which the maximum sentence is five years in prison.

Jeff Middendorf, general counsel for the Justice and Public Safety Cabinet, said the ruling today wouldn’t affect enforcement of the law. Police agencies will be asked to continue notifying sex offenders when they live within 1,000 feet of a school, playground or day care facility.

“We have an obligation to enforce the law and until a higher court says otherwise we will fulfill that obligation,? he said.

Read full coverage in tomorrow’s Courier-Journal.

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