Kansas Supreme Court Rules, Then Reverses Itself, Over A Weekend
Apr. 26, 2016 (Mimesis Law) — For about a day, the Supreme Court of Kansas held 4-3 that the state could not create new consequences for old convictions. It ruled in three separate cases. One of the lucky winners was Promise Delon Redmon, who allegedly solicited a teenager for sex in 2001. One of the consequences of that conviction was that he would have to register as a sex offender for ten years.
Shortly before that ten years had passed, the Kansas Legislature had a bright idea. Why not take people who were already on the sex offender registry, and place new conditions on them? So they passed a bill requiring Redmon to stay on the registry for twenty-five years instead of ten. Also, since they were at it, they’d require people on the registry to get a new sex offender driver’s license every year, disclose when they were going out of the country, have frequent in-person reporting, and pay a bunch of costly registration fees (to cover the costs of all this new surveillance). Shortly after his ten years had expired, Redmon stopped checking in with the registry, and was charged with serious felonies for the violation.
So the only question before the court was whether the State could retroactively impose new conditions for old crimes. There’s an entire sentence in the Constitution devoted to exactly this question: “No Bill of Attainder or ex post facto Law shall be passed.” An ex post facto law imposes a new punishment for an old action, either making something illegal or increasing punishment after the action has been committed.
If the new conditions were “punitive,” then the law could not be applied retroactively. If the law was merely “civil,” then the Kansas Supreme Court could allow it to proceed. Now, the legislature did not call it the “punishing sex offenders” law—they put in a preamble suggesting that the law existed for the protection of the public. That meant that the Court would have to look past what the legislature said it was doing, and figure out whether the law itself actually harmed sex offenders without a corresponding public benefit.
The Kansas Supreme Court took a pretty common-sense approach to the question in Thompson, its most detailed opinion, pointing out that public shaming is one of the oldest means of punishment there is, the expense of the new conditions, the insane difficulties of housing and employment for someone on the registry and, most importantly of all, noting just how disproportionate all those harms were in comparison to the tiny public safety advantages of the registry.
If the 10-year length of reporting was reasonably related to the danger of recidivism in 2003, when Doe was convicted and the year after Smith was decided, one has to wonder what happened in 2011 to make the reasonable relationship two and a half times greater. The State has provided nothing to support the reasonableness of the 25- year reporting term. Even Smith’s “legislative fact” in support of ASORA’s length of reporting was that sex offenders may reoffend “‘as late as 20 years following release.'” 538 U.S. at 104. KORA’s new reporting term is 25% longer than Smith’s outside limit. Moreover, Doe’s “legislative fact” from current social science indicates that the risk of recidivism actually decreases as the offender ages. Even if we do not take judicial notice of that “legislative fact,” we can conclude that there is no evidentiary or logical support for the increase in reporting term. Such arbitrariness is inherently retributive.
So there you had it. There was no good reason to bump the registration length by two and a half times. The law was clearly designed as a way for the legislature to reaffirm that it didn’t like sex offenders, rather than to protect the public. It was so arbitrary that it couldn’t possibly have any non-punitive purpose.
That was on Friday. On Monday, the Court said that the new requirements were fine and could be imposed retroactively, overruling the three cases it had decided literally one business day earlier. So what changed the Court’s mind? Did the State file a particularly amazing new brief over the weekend? Were there mass protests at the State capitol? In short, no. On Friday, a district court was sitting by designation with the Supreme Court, meaning that he had a say. On Monday, he was gone, shifting the 4-3 majority to the opposite direction, and the new justice didn’t agree with how he’d ruled. The Court went back and decided that the law wasn’t punitive because a bunch of federal courts had ruled that such schemes weren’t punitive, just “civil.”
Sure, the court reasoned, a person on the “civil” registry might have requirements that were tougher to comply with than being on probation or parole, but probationers were also subject to warrantless searches (never mind that a sex offender also has additional requirements, like having to tell the government whenever he creates a new screen name or creates a personal web page).
Justice Johnson, in his dissent to the new opinion, makes one of my favorite points of all the cases. The United States Supreme Court was okay with lifetime registration for sex offenders because, frankly, they were too old to understand how debilitating those offender requirements were.
The Smith majority, authored by Justice Kennedy, who was 67 years old at the time, described Alaska’s posting of registration information on the Internet as a passive system, akin to physically visiting “an official archive of criminal records.”
He also points out that the Supreme Court relied on faulty statistics (citing the debunked notion that 80% of sex offenders reoffend) and that, by contrast, the Supreme Court that decided the case of Riley v. California seemed less likely to buy the government’s technical arguments at face value.
But, regardless of the merits of the case, the Kansas Supreme Court has spoken. Everyone asides from the three successful Friday litigants will find themselves subject to new and more difficult requirements, possibly for life.
Unfortunately, this is all par for the course. Courts around the country have okayed detaining citizens, potentially indefinitely, after placement on the registry. None of this is motivated by public safety. It is motivated by sheer animus, and a constituency that will never balk in the face of harsher requirements for sex offenders. In a system that talks endlessly about the joys of “finality,” none of these citizens will ever know if their punishment has ended. And all it took to ensure a lifetime of uncertainty was one bad weekend.