Kentucky Supreme court

Ky. Supreme Court strikes down law targeting sex offenders

shopkins@herald-leader.comOctober 2, 2009 

A state law limiting where registered sex offenders may live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented, the Kentucky Supreme Court ruled Thursday.

The law prohibits sex offenders from living within 1,000 feet of playgrounds, day-care centers and schools, and the law changed how the distance is measured.

The court, in a 5-2 decision, said the law is punitive and violates the ex post facto clause, or retroactive law, in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes. The restrictions will still apply to anyone convicted after July 12, 2006.

As of Thursday morning, there were 280 sex offenders in Fayette County, and six were not in compliance, according to the Fayette County Sheriff's Office. Sheriff Kathy Witt said some addresses are visited every day. Those who are incompliant are usually not living at the addresses listed for the individuals.

Witt received and skimmed the ruling Thursday morning. "I haven't had time to digest the whole thing," she said, adding that she planned to look it over and decide how to proceed.

State Rep. Joni Jenkins, D-Shively, lead sponsor of the bill, noted that the Supreme Court decision doesn't strike down the entire law, only a provision of the law.

Jenkins said the law still helps protect children, as it was meant to do. But she said it's also important for parents not to rely on the sex-offender registry because most children are abused by a family member or family friend.

"We still need to look after our personal safety and the safety of our children," Jenkins said.

Rep. Bob Damron, D-Nicholasville, who also sponsored the bill, said he was disappointed and surprised by the decision.

"Our focus was not to penalize anybody," Damron said. "Our focus was to provide protection to potential victims of sex offenders."

He said the date a sex offender was convicted is irrelevant.

"To say that I'm disappointed is probably an understatement," Damron said.

In October 2006, authorities in Fayette County began knocking on doors and arresting sex offenders who were in violation of the law. At the time, there were 256 sex offenders in Fayette County, and 180 were expected to move.

Most of them were living in older, urban neighborhoods inside New Circle Road. Downtown Lexington was virtually off limits to sex offenders because of the number of prohibited areas.

The new law included playgrounds in the list of prohibited areas whereas the former law only prohibited offenders from living near day-care centers and schools. The new law also measures the distance from a property line instead of the center of a property.

Many registered sex offenders in Fayette County who owned homes for years were upset about being forced to move because of a law enacted after they committed and served time for their crimes.

Sex offenders across the state took their concerns to court only to receive varying opinions from judges.

Michael Baker, who entered a guilty plea to a third-degree rape charge in March 1995 in Kenton County, challenged the new law on several constitutional grounds and asked the court to dismiss charges that he violated the residency law.

Kenton District Judge Martin J. Sheehan ruled that the law was punitive and not regulatory, and violated the ex post facto clause in the U.S. Constitution. Kenton District Court granted Baker's motion.

The issue was sent to the Supreme Court to determine whether the law was unconstitutional.

The Supreme Court, however, disagreed with Kenton District Court that the General Assembly intended for the law to be punitive. The Supreme Court said state legislators intended for the law to be a "civil, non-punitive regulatory scheme," according to the ruling.

Still, the residency restrictions are "so punitive in effect as to negate any intention to deem them as civil."

Justice Lisabeth Hughes Abramson issued a dissenting opinion, which Chief Justice John D. Minton Jr. joined, saying the majority had "arrogated to itself the role of legislator and has substituted its public policy judgment for that of the General Assembly."

Abramson said policy choices are left to the legislature, and she agreed with other courts that have said retroactive sex-offender residency restrictions don't exceed a legislature's authority to address "vital public safety concerns."

The justice said she strongly disagreed with the majority opinion.

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