Attorney General Conway Argues that Legislature Should be Allowed to Pass Ex Post Facto Laws at will.

 Attorney General Conway has announced that his office will appeal the recent ruling of the Ky. Supreme Court which held that the legislature is prohibited by the Kentucky and U.S. Constitution from passing an ex post facto law which adds to the sentence of a person who was convicted before the passage of the law.  Few issues are as well settled in the law as the unconstitutionality of ex post facto laws.  

Any reading of this court decision shows a great deal of restraint by the court.  The court’s ruling held that any new sex offenders can still be banned.  Only those offenders who had already been convicted before the new law was passed were affected by this decision.   The court did not rule on a larger question of whether “banishment” is itself constitutional.   The court discussed the logic of the law and pointed out that it does not prevent convicted sex offenders from visiting homes within a thousand yards of a school or playground, it just says they can’t sleep there.

 We would hope that our Attorney General would focus on asking the legislature for a better piece of legislation that actually limited contact of child sex offenders with children and to provide supervision of offenders.  The current law merely draws a line on a map which forces (even offenders who were not convicted of offenses involving children) to be forced from their homes.

 While the Attorney General’s petition for certiorari is great political theater it ignores the larger problem and avoids the heavy lifting of writing an effective law.

 

The Herald Leader commented on this issue:

“…at this moment, the state’s high court’s ruling is the law. Conway recently filed a motion requesting that the court suspend the law’s implementation until after the appeal. Unless or until the court agrees to that, we all should abide by the ruling.

As the state’s top law enforcement official, Conway should make that clear, in no uncertain terms, to law enforcement personnel across the state. Not doing so would raise questions about whether he, as a U.S. Senate candidate, is using this emotional issue for political grandstanding.

More troublesome is the message this situation sends that law enforcement officials do not have to play by the rules of the legal system.

That’s anarchy. Who then is protected?”

 

For full text of case click case number  2007-SC-000347-CL.pdf  

 COMMONWEALTH OF KENTUCKY vs.  MICHAEL BAKER

 FROM KENTON DISTRICT COURT  – . HONORABLE MARTIN J. SHEEHAN, JUDGE

 The Ky. Supreme Court said: 

“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 ofKRS 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…

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…

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.”

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