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October 1, 2009

Kentucky Supreme Court finds retroactive application of sex offender residency restriction unconstitutional

As detailed in this local article, in Kentucky a "law that bans convicted sex offenders from living near schools and other places where children congregate is unconstitutional, the Kentucky Supreme Court ruled Thursday." Here are the basics:

Kentucky lawmakers passed a law in 2006 that barred sex offenders from living within 1,000 feet of schools, day care centers and playgrounds. In a 5-2 decision, justices held that the law is punitive because lawmakers applied it retroactively to sex offenders convicted before the restrictions were imposed. The restrictions will still apply to anyone convicted after July 2006. By doing so, the majority concluded, lawmakers unconstitutionally imposed a punishment that wasn't in criminal law at the time the sex offenders were convicted....

Attorney General Jack Conway said he and his staff are reviewing the ruling and considering whether to ask the state Supreme Court to reconsider the decision or to appeal the case to the U.S. Supreme Court. "At first glance, we have some serious concerns about the impact on public safety," Conway said. "As a parent, I am concerned that this ruling could open the door for sex offenders to be living next door to our schools and day care centers."

The full ruling in Kentucky v. Baker, No. 2007-SC-000347-CI (Ky. Oct. 1, 2009) (available here) starts this way:

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.

October 1, 2009 at 06:19 PM | Permalink

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Comments

It's nice to see that there are some rational judges left. To few, too late. But at least some.

Posted by: Daniel | Oct 1, 2009 6:37:56 PM

"As a parent, I am concerned that this ruling could open the door for sex offenders to be living next door to our schools and day care centers."

If YOU don't like who YOUR neighbors are, then YOU move!

Posted by: George | Oct 1, 2009 11:17:22 PM

At first (and a quick) glance, it looks like the court might have relied a bit too much on the U.S. Constitution rather than Kentucky's constitution...perhaps creating a Michigan v. Long problem? The court could have relied entirely on the state ex post facto clause and made the case one which could not be appealed to the Supreme Court--why they didn't is baffling.

Posted by: Anonymiss | Oct 2, 2009 9:32:01 AM

"As a parent, I am concerned that this ruling could open the door for sex offenders to be living next door to our schools and day care centers."

News flash: Potential sex offenders (including weird uncles and predatory neighbors with no priors) are probably already living next door to schools and day care centers in the worried prosecutor's community.

It's refreshing on these increasingly rare occasions when courts bravely uphold unpopular constitutional principles. Never mind that all the registries and other oppressive government tacks don't appear to have improved much on the venerable practice of repetitively coaching kids on what and whom to avoid.

Posted by: John K | Oct 2, 2009 4:11:50 PM

I agree but i think they may be hoping this DA will be the one DUMB enough to appeal to the U.S Supreme Court. It's LONG past them they revisided this and tossed it all.

what i want to know is just WHEN this started

"Attorney General Jack Conway said he and his staff are reviewing the ruling and considering whether to ask the state Supreme Court to reconsider the decision"

here i though his choices were APPEAL or DROP IT. just when did they suddenly start thinking they had a right to demand an do-over?

I think if he makes that request they should have him arrested and locked in his own fail for contempt!

Might start to convice these idiot politicians which is all an AG is that NO MEANS NO!

Posted by: rodsmith3510 | Oct 2, 2009 5:04:50 PM

I am currently fighting a case in Ft. Myers,Fl. I plead out to a exposure to under 16 back in 1991. I was given probation and finished my probation in2002.Not having a job or a place to live I was scared to register.Ex post facto went out the window.This witchhunt has torn my life apart as they are offering 3 1/2 years on a new failure to register.This has been 18 + years since my last conviction!My P.D. sucks & im ready to represent myself! My phone # is 239-244-5577 thanx!

Posted by: Thomas Shoaf | Oct 29, 2009 9:57:18 PM

when we say sex offender we think it about little kids under the age of 12,,,our laws lump all together Pedophiles are different most sex offenders had consensual sex with a young lady..its like this...If i go to the corner market an steal a candy bar it stealing,,,i get a slap on the hand go home If i go to the bank and rob it again its just another form of stealing..but I go to prison..so why can't the courts take it case by case in stead of lumping all together I urge everyone to write letters to every one they can think of news papers national is better all it will take is one to pick up on this and we can get the stupid laws changed write to your state officials our congress senators it will take all of us to cjhange the laws ans SMALL mined people that a sex offender pose no more of a threat than the drug dealer/maker next door but we do not know who they are do we this is my thoughts what's yours???

Posted by: Betty | Jan 21, 2012 11:23:22 PM

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