KS Sup. Court simultaneously reverses itself: Registration IS punishment, but NOT

By TONY RIZZO . . .

In an apparently unprecedented series of events, the Kansas Supreme Court on Friday overruled three of its own opinions, also released Friday, regarding the state’s sex offender registration laws.

In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect.

But then in a fourth opinion, also released Friday, the court found that those rulings were incorrect.

Attorneys across the state said they couldn’t recall a situation where the court reversed itself in rulings issued on the same day.

“We continue to study today’s peculiar group of Kansas Supreme Court decisions involving the offender registration act,” Kansas Attorney General Derek Schmidt said in a written statement. “In the coming days, we will endeavor to discern what the court actually has done and will assess all options for next steps.”

The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions. That interim judge was serving on the court while there was a vacancy.

But for the fourth case, the newest Supreme Court justice, Caleb Stegall, replaced the district court judge. That case also was decided 4-3, with Stegall casting the deciding vote.

The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders did not constitute additional punishment for a crime.

Therefore, the law does not violate federal or Kansas constitutional protections against cruel and unusual punishment, the court ruled in that fourth case.

In the three other cases, the court ruled that the law did constitute an additional punishment and said offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took effect after they committed their crimes.

But those rulings apparently apply only to those three offenders.

Others will be governed by the fourth ruling Friday.

“While I’m happy that my client may get relief, it’s unfortunate that others similarly situated will not,” said attorney Meryl Carver-Allmond, who represented one of the men covered by the rulings on the 2011 law change.

She said it was “ludicrous” to say that the offender registry requirement is not punishment.

“The court had it right in the first instance,” said Carver-Allmond. “And it’s disappointing that the recent change in personnel steered them off course.”

Jeff Dazey, the attorney for one of the other men covered by the opinions in the 2011 law change, said he was “pleased, disappointed and somewhat perplexed” by the rulings.

“Virtually every year the Kansas legislature has modified the law to make registration more difficult and more expensive, while simultaneously increasing the penalties for failing to register and increasing the time that a person has to register,” Dazey said. “I firmly believe that applying these draconian terms and conditions on people whose initial registration duties expired is unconstitutional.”

Christopher Joseph, attorney for the third man covered by the 2011 change in the law, said it was an area of the law that is evolving.

Joseph said he “has little doubt” that courts across the country, including the U.S. Supreme Court, will ultimately agree that offender registration laws are “punitive.”

Source: The Kansas City Star