TOPEKA, Kansas — The attorney for a convicted child molester on Thursday challenged the constitutionality of the Kansas offender registry before the state’s highest court, arguing social media has made the Internet the new town square for public shaming.
Attorney Christopher Joseph urged the Kansas Supreme Court to uphold a decision by Shawnee County Judge Larry Hendricks that removed the name of a Lenexa man from the registry. The judge ruled the retroactive application of the Kansas Offender Registration Act when the Legislature amended the law in 2011 violates the U.S. Constitution’s ban on “ex post facto,” or after-the-fact, punishments.
Attorney General Derek Schmidt, who watched the proceedings from the gallery, said afterward that if the state ultimately loses the case, Kansas would not have an effective offender registry.
“The stakes in this case are very high,” Schmidt said. “Our goal is to have an effective registry that conveys to Kansans the information that they can then use.”
The case hinges on whether the Kansas justices determine that the state’s amended registry law is an unconstitutional retroactive punishment or a permissible tool to protect public safety. The U.S. Supreme Court ruled in 2003 that Alaska’s sex offender registration law was not punishment and its retroactive application therefore did not violate the Constitution.
But Joseph urged the appeal court justices to take a “fresh look” because the world has changed dramatically with the rise of the Internet, social media and smartphones that have created a virtual town square for public shaming since that U.S. Supreme Court decision was handed down.
“Today’s town square is the Internet,” he said.
Noting the U.S. Supreme Court previously ruled registration requirements constitutional, Justice Lee Johnson said the Kansas justices would have to conclude that the nation’s highest court might now rule differently because the world has changed.
“We have to be able to say that they would acknowledge that,” Johnson said.
“There’s too much notification?” Justice Eric Rosen asked.
Joseph replied that with social media, “it’s right there, in your face.”
But Rosen also asked Assistant Attorney General Christopher Grunewald whether the length of the registration requirement is a factor in determining that the registry law is non-punitive and therefore constitutional.
“There’s a significant difference between 10 years and 25 years,” Rosen told him.
Grunewald contended length isn’t a factor, but faced skepticism from the court when he asserted there is no reason to question the law’s public safety purpose.
Johnson then retorted, “Well, I’m going to question it.”
When Johnson pressed him as to whether his conclusion that registration improves public safety is based on hard evidence, Grunewald replied, “It’s common sense.”
While the Shawnee County judge’s initial ruling applied only to the 51-year-old Lenexa man who sued the Kansas Bureau of Investigation and the Johnson County Sheriff’s Office, any Supreme Court ruling now would affect others on the registry whose reporting requirement was retroactively lengthened by a 2011 amendment to the state’s law. If the court concludes the effect of today’s law is punitive, then the registration law at the time of a person’s conviction would determine their registration requirements and would extend to everyone subject to KORA, Joseph said Wednesday.
Kansas law requires people convicted of certain sex, drug and violent crimes to register with law enforcement between 15 years and life, depending on the severity of the crime. As of August, Kansas has 13,582 people listed on the registry: 8,086 for sex crimes; 2,854 for drug offenses; and 2,642 for violent crimes.
The man at the center of the lawsuit pleaded guilty in 2003 to having indecent liberties with a child/touching in Johnson County. At the time, he was required to remain on the registry for 10 years. But the Legislature’s change to the law in 2011 extended the length of time such offenders must be registered to 25 years. The state then told him that the law applied retroactively — meaning he had to remain registered until 2028.
Court documents identify him only as “John Doe,” and one of the issues on appeal is whether the judge erred in allowing him to proceed pseudonymously in the litigation.
In reading this article several things come to mind. First, has the world changed since the advent of the internet? To that I say Absolutely! . Everything is out there. Once information is on the internet it there in perpetuity. In fact law enforcement and victim advocates use that argument all the time as part of their argument for stronger sentencing enhancements in a child pornography cases. They go on to say having this information public like that is hurtful and damaging. It seems to me we cannot use an argument only when it suits us. It either is or it is not. IF ITS PUNISHMENT AND DAMAGING THEN THATS UNCONSTITUTIONAL BECAUSE WE CANNOT PUNISH SOMEONE AGAIN AFTER THEY HAVE DONE THEIR TIME AND PAID THEIR DEBT. If registration is about public safety then lets do what is truly about public safety and focus legislation and policy regarding public safety on what the empirical evidence supports, and is in the best interest of public safety. After all these years of public registration there is no credible research which supports this policy does anything to support public safety and protect our children and reduce recidivism. What we do know is the majority of abuse is inflicted by someone known to the family, or a direct family member. Research also tells us that risk goes down over time so just as long term incarceration is a waste of resources in most instances so is long term registration. If it is necessary for law enforcement to be able to identify the whereabouts of a former sex offender for a reasonable period of time, then let registration be for law enforcement only. The average citizen doesn’t have enough understanding of what they read to interpret the former offenders offense, the registry doesn’t even fully explain how long ago it was, how long the former offender has been offence free (new sex offense), whether treatment was completed, if they are leading a successful life etc. It damages families and keeps people from being productive members by its application to reintegration to society, finding stable employment and housing. These are counter productive to public safety. It also is a waste of public resources which can be directed to better use in education and prevention. It provides a false sense of security to parents, as they tend to think they only need to worry about someone who is on the registry. The fact is the overwhelming majority of these people are first time offenders… 95% will not reoffend whether they are registered or not!
It is also a known fact that for every $1 spent on prevention we save $34 in criminal justice costs. So lets stop this wasteful ineffective practice and give parents and children real tools to protect themselves. EDUCATE !!!