Sex offender residency rules still being enforced despite Supreme Court ruling

lblackford@herald-leader.comOctober 30, 2009 

Kentucky probation and parole officers are enforcing a law that restricts where registered sex offenders can live despite a recent ruling by the Kentucky Supreme Court that says the law doesn't apply to those convicted before July 2006.

The state Department of Corrections has continued enforcing the law because Attorney General Jack Conway has asked the state's high court to suspend their ruling while he appeals to the U.S. Supreme Court.

"Our position is that the Supreme Court decision is not final," said Lisa Lamb, spokeswoman for the state Department of Corrections. "We believe the former law is still in effect."

Conway's Office of Criminal Appeals filed a motion on October 21, 2009, with the Kentucky Supreme Court requesting the court suspend implementation of the ruling until the U.S. Supreme Court determines whether or not it will review the Kentucky case.

Conway said he was appealing to the U.S. Supreme Court because of "serious concerns about how the Kentucky Supreme Court's ruling will affect public safety."

The Kentucky Supreme Court has not yet ruled on Conway's motion to suspend its ruling.

On Oct. 1, the state Supreme Court ruled that a 2006 law that banned sex offenders from living near schools, parks and other places where children congregate was unconstitutional because lawmakers applied it retroactively. The court said the restrictions should apply only to sex offenders who were convicted after July 2006.

Mike Hummel, a Kenton County public defender, said he was disappointed by the state's decision.

"I think it's wrong to disregard what the Supreme Court has said is wrong," he said Thursday.

Lamb said the decision to enforce the old law came from the department's legal counsel.

The 2006 law caused many registered sex offenders, particularly those in urban areas, to move. Downtown Lexington, for example, became nearly uninhabitable for sex offenders because of the number of day-care centers, playgrounds and schools.

Many registered sex offenders were upset about being forced to move because of a law enacted after they committed and served time for their crimes. Some 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 that it 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 constitutional.

Although the Supreme Court disagreed with the lower court's ruling that the General Assembly intended for the law to be punitive, it still found that the restrictions are "so punitive in effect as to negate any intention to deem them as civil."

Conway's office has until December 30, 2009, to file a certiorari motion with the U.S. Supreme Court.

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