AN ANALYSIS OF A DISTRICT COURT’S RULING
DECLARING THE SEX OFFENDER RESIDENCY
REQUIREMENTS UNCONSTITUTIONAL
By Samuel N. Potter, Appeals Branch
In the last edition of the Advocate, part one of this article
summarized the changes House Bill Three (HB3) made to the
sex offender residency requirements (SORR). Part two of this
article will examine a case from Kenton District Court that
ruled the new SORR violated the Ex Post Facto Clause of the
Constitutions of the United States and Kentucky. Copies of
the motion and order can be downloaded from the 2007 annual
conference materials from the session on sex offender
registration on DPA’s intranet. If you do not have access to
DPA’s intranet, feel free to contact the author at
sam.potter@ky.gov or 502 564-8006.
The Kenton District Court case involved more than 10
defendants and five defense lawyers, both private and public
defenders. All the defendants became sex offender registrants
(registrants) before HB3 took effect. The defendants
challenged the constitutionality of HB3 as applied to them on
multiple grounds: Equal Protection violation; Substantive Due
Process violation; Ex Post Facto violation; and Inalienable
Property Rights violation. The first three grounds involved
both the Kentucky and United States Constitutions, while
the last ground relied solely on the Kentucky Constitution.
The Kenton District Court based its dismissal ruling only on
the Ex Post Facto Clause, though it intimated that the remaining
grounds raised substantive issues that will have to be resolved
in the future. The Court’s observation is sound. The implication
of this statement is significant for criminal defense attorneys.
Ex Post Facto challenges will not succeed in each case. Thus,
it is worth the time and effort to challenge the SORR on multiple
grounds, not knowing which Constitutional provision may
warrant relief in any given situation.
The Court spent about eight pages of its 36 page opinion on
the historical background of the sex offender registration
system (SORS). This included a detailed retelling of the facts
of the crime committed against Megan Kanka in New Jersey.
This horrible incident provided the political motivation to pass
SORS across the nation, which are commonly referred to as
Megan’s Law. The SORS attempted to provide a quick solution
to the problem that communities face of not knowing where
sexual offenders live. Over time, however, the registration
requirements and restrictions have grown more burdensome,
and the punishments for violations have grown more harsh.
The defendants challenged the premises upon which the
SORR are founded. The first premise assumed that many sexual
offenders target unknown
children at a high rate. The
second premise assumed
that sex offenders re-offend
at a high rate after being
released. The Court
examined some scientific
studies that supported the
defendants’ challenges of
these two premises. The
findings are striking and are
worth repeating here.
• Many studies show that sexual abuse most often occurs
in a preexisting relationship. For example, 80% of girls and
60% of boys are abused by someone they know.1
• No more than 10% of child sexual abuse cases involve
strangers to the victim.2
• In 1997, only 7% of child molesters in prison committed
their offense against a stranger.3
• More specifically, 3% of children under 12 were abused
by strangers, and 11% of children 13 to 17 were abused
by strangers.4
The Court stated: “The implication of these and countless
other studies is that laws designed to protect our children, to
be effective, should focus on preventing sex offenders from
harming children whom they know, not fixated on preventing
the rare attacks by strangers. Legislators however, continue
to focus on high profile, emotionally charged cases like that
of Megan Kanka, and craft measures designed to combat the
predator lurking in the bushes.” Opinion, p.10.
A causal connection has not been discovered that links an
increased re-offense rate to the offenders residence near a
school or playground. Of 500 sex offenders who legally lived
close to schools, only one was rearrested, and the arrest did
not involve another sexual assault.5 The Minnesota
Department of Corrections concluded that residency
restrictions were not effective in deterring the offender from
re-offending because only two re-offending acts were
committed on unknown victims in parks, but those parks were
several miles from the re-offenders’ homes.6
Studies refute the premise that sex offenders re-offend at a
high rate.
• After five years, the re-offense rate for child molesters
was 12.7% in a study of 29,000 sex offenders.7
• Only 14% of sex offenders released from prison in 1994 reoffended.
8
• Of child molesters released in 1994, 3% were rearrested for
a sexual assault, 14% were rearrested for a violent offense,
and 39% were rearrested for any offense including parole
violations and traffic offenses. Id.
• Of all prisoners released in 1994, 68% were rearrested for
any offense in three years. Id.
The Court concluded this section by quoting another article:
“Residency restrictions suffer from several practical problems
that call into question their basis, efficacy, and fairness. Their
scientific premise is spurious and only leads to over-inclusive
and ineffective restrictions that will do nothing to stop the
small fraction of sex offenders who will harm unknown children
again.” Opinion, p. 11-12.9 With this background information
providing context, the Kenton District Court proceeded to its
Ex Post Facto analysis.
The Court’s Ex Post Facto analysis consisted of over 20 pages.
“No state shall . . . pass any . . . ex post facto law.” U.S. Const.,
Art. I, §10. “No ex post facto law . . . shall be encacted.” Ky.
Const., §19(1). The Court found no U.S. Supreme Court case
directly on point regarding whether the SORR violates the Ex
Post Facto Clause. However, the case of Smith v. Doe, 538
U.S. 84, 105-106 (2003), upheld the constitutionality of the
SORS, ruling that it “is nonpunitive and its retroactive
application does not violate the Ex Post Facto Clause.”
Opinion, p. 13. Based on Smith v. Doe, the Eighth Circuit has
upheld the constitutionality of SORR. Doe v. Miller, 405 F.3rd
700 (8th Cir. 2005). The Kenton District Court disagreed with
the conclusion of Doe v. Miller because of the plain language
found in Smith v. Doe: “offenders subject to the Alaska statute
are free to move where they wish and to live and work as
other citizens, with no supervision.” Opinion, p.14 (quoting,
Smith v. Doe, 538 U.S. at 101; emphasis mine.)
Determining whether a statute violates the Ex Post Facto
Clause consists of a two step analysis. Step one requires the
court considering the issue to ascertain whether the legislature
intended the statute to impose punishment or establish civil
proceedings. Id. at 92. The inquiry ends if the legislature
intended to impose punishment, and the statute violates the
Ex Post Facto Clause. If the legislature intended a regulatory
scheme that is civil and non-punitive, then the court proceeds
to the second step. Step two has the court determine whether
the purpose or effect of the statutory scheme is so punitive
that it negates the legislature’s intent to deem it civil. Id. Five
factors that are not exhaustive or dispositive serve as useful
guideposts for evaluating step two: 1) has the regulatory
scheme been regarded as punishment in our history and
tradition; 2) does it impose an affirmative restraint or disability;
3) does it promote the traditional aims of punishment, 4) does
it have a rational connection to a non-punitive purpose, and
5) is it excessive with respect to that purpose. Id. at 97 (citing,
Hudson v. United States, 522 U.S. 93, 99 (1997)).
The Court began with step one and asked whether the
legislature expressly or implicitly intended the SORR to impose
a criminal punishment or a civil regulation. “Considerable
deference must be accorded to the intent as the legislature
has stated it.” Opinion, p. 15 (quoting, Smith v. Doe, 538 U.S.
at 93). The Court found that the following facts supported a
finding that legislature intended the SORR to be punishment.
• The title of HB3 was “An act related sex offenses and the
punishment therefore.” (Court’s emphassis.)
• Both the House and the Senate required official cost
estimates from the Department of Corrections and local
governments. The estimates focused on increased costs
due to more people being incarcerated and more probation
and parole officers.
• The sole enforcement procedure the legislature authorized
with the SORR were criminal sanctions of a Class A
misdemeanor for the first offense and a Class D felony for
subsequent offenses.
Based on these facts, the Court believed the legislature
intended the law to be punitive and violated the Ex Post Facto
Clause. Even though this resolved the question, the Court in
an effort to be thorough proceeded to step two.
The Court moved on to step two, which is essentially a
balancing test to see if the punitive purpose and/or effect of
the SORR negates its civil regulation. The five factors listed
above provide guidance, and courts are free to weigh the
factors as they see fit. Factor one examines the historical
tradition of the regulatory scheme, namely residency
restrictions. The defendants argued the SORR are equivalent
with the punishment of banishment. Banishment is
“punishment inflicted on criminals by compelling them to quit
a city, place, or county for a specified period of time, or for
life.” Opinion, p. 19 (quoting, United States v. Ju Toy, 198 U.S.
253, 269-270 (1905). The Court agreed with the defendants’
argument.
Factor two considers whether the SORR imposes an affirmative
duty or restraint. Because the SORR restricts where a registrant
can live, the SORR is inherently an affirmative restraint. This
factor distinguishes the residency restrictions from the
registration system. The Kentucky Supreme Court upheld the
SORS because the mere act of registering did not limit the
activities of the registrant. Hyatt v. Commonwealth, 72 S.W.3d
566, 572 (Ky. 2002). The Court reasoned that unlike “registration
requirements, residency restrictions do in fact impose an
affirmative disability and do place limitations on the activities
of the offender. . . . The punishment imposed by these statutes,
banishment, is not prospective in nature.” Opinion, p. 25.
That the SORR imposes an affirmative restraint on registrants
cannot be denied.
Factor three addresses whether the SORR promotes the
traditional aims of punishment—deterrence and retribution.
Smith v. Doe found that the SORS was not retributive because
it was reasonably related to sex offenders high re-offense
rate, though the U.S. Supreme Court did not cite any data to
support this proposition. Smith v. Doe, 538 U.S. at 102. The
Kenton District Court referred to the studies it cited early to
rebut that proposition and show that sex offenders are less
likely to re-offend than the average person. Further evidence
of the retribution nature of the SORR was the idea that a
registrant could visit “his mother’s home near an elementary
school all day long, each and every day, while school was in
session and he allegedly posed the greatest risk to children –
but he could not spend the night there after school was
dismissed and the children returned to their various homes.”
Opinion, 21 (citing, People v. Leroy, 828 N.E. 2d 769, 793 (Il.
App. 2005(dissent))). The absence of individualized risk
assessment of sex offenders bothered Justice Souter
significantly enough that he concurred in Smith v. Doe and
caused Justice Ginsburg to dissent. Smith v. Doe, 538 U.S. at
108-109; 116-117. The Court concluded that the SORR
promoted retribution, a traditional aim of punishment.
Factors four and five are connected. The issue they seek to
resolve is whether a rational connection exists between the
restriction and its purpose. Factor four inquires whether the
SORR has a rational connection to a non-punitive purpose.
The SORR are designed to protect children from sex offenders.
The Court observed that the “protection, however, is minimal
at best and completely illusory at worst.” Opinion, p. 26.
Registrants can still frequent schools, daycares, and
playgrounds as often as they want without violating the
SORR. The SORR do not prevent a registrant from living with
the prior victim as long as the residence is not close to a
school, daycare, or playground. The Court concluded that
the “residency restrictions appear to be little more than a
political placebo, offering false comfort to pacify the public’s
fear of sex offenders.” Opinion, p. 27. No rational connection
exists between the non-punitive purpose of protecting
children and the SORR.
Factor five addresses whether SORR is excessive with respect
to protecting children. The complete lack of individualized
risk assessment lumps all offenders together without any
consideration of the likelihood that a given person will reoffend.
Justice Souter wrote in his concurring opinion that
the SORS “uses past crimes as the touchstone, probably
sweeping in a significant number of people who pose no real
threat to the community, serves to feed suspicion that
something more than regulation of safety is going on.” Smith
v. Doe, 538 U.S. at 109. The SORR potentially subjects nonsex
offenders to its jurisdiction. A defendant who car jacks a
vehicle with a passenger who is 17 and is convicted of
kidnapping or unlawful imprisonment would have to register
as sex offender and comply with residency restrictions even
though no sexual assault occurred. KRS 17.500(3)(a)(1); KRS
17.520(2)(a); KRS 17.545(1). The fluidity of the SORR
contributes to its excessive nature. Where a registrant can
live is subject to constant change as new schools, daycares,
and playgrounds are opened. A city that desires to do so can
open enough playgrounds to render all residences within its
limits illegal to the registrant, effectively banishing the sex
offender. Therefore, the Court concluded that the impact of
the SORR is excessively punitive.
Based on this analysis, the Kenton District Court declared
the SORR unconstitutional as it applied to these defendants
because it violated the Ex Post Facto Clause because the
scheme is punitive and not regulatory. The Court succinctly
and persuasively articulated the problem with the SORR: not
“only do they [SORR] dictate where an offender may or may
not reside, but collaterally, they could impact where an
offender’s children attend school, access to public
transportation for employment purposes, access to
employment opportunities, access to residential alcohol and
drug abuse rehabilitation programs and even access to medical
care and residential nursing home facilities for the aging
offender.” Opinion, p. 30.
The constitutionality of the SORR remains an open question.
Other courts in Jefferson County and Madison County have
joined the Kenton District Court in declaring the SORR
unconstitutional. However, the appellate courts of Kentucky
have not yet addressed the issue, though cases are starting
to work their way up. Until then, challenges to the
constitutionality of the SORR should continue to be raised.