State v. Petersen-Beard , 304 Kan. 192 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,061
STATE OF KANSAS,
Appellee,
v.
HENRY PETERSEN-BEARD,
Appellant.
SYLLABUS BY THE COURT
1.
Lifetime postrelease registration for sex offenders mandated by the Kansas
Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for
purposes of applying provisions of the United States Constitution. Contrary holdings in
State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v.
Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v.
Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided), are overruled.
2.
Lifetime postrelease registration for sex offenders mandated by the Kansas
Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for
purposes of applying § 9 of the Kansas Constitution Bill of Rights.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 9, 2013.
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed April 22, 2016. Judgment of the
Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
Christina M. Trocheck, first assistant county attorney, argued the cause, and Ellen Mitchell,
county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Henry Petersen-Beard challenges his sentence to lifetime postrelease
registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA),
K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas
Bill of Rights and the Eighth Amendment to the United States Constitution. Because we
find that lifetime registration as a sex offender pursuant to KORA is not punishment for
either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is
unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule
the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280,
this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day
decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day
decided).
FACTUAL AND PROCEDURAL BACKGROUND
Petersen-Beard pled guilty to and was convicted of one count of rape for having
sexual intercourse with a 13-year-old girl when he was 19 years old. Prior to sentencing,
he filed motions asking the district court to depart from the presumptive guidelines
sentence and to declare KORA's requirement of lifetime registration unconstitutional
under § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States
Constitution. The district court granted Petersen-Beard's motion for a downward
durational departure but denied his request to find KORA's lifetime registration
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requirements unconstitutional. As such, the district court sentenced Petersen-Beard to 78
months' imprisonment with lifetime postrelease supervision and lifetime registration as a
sex offender—the lowest sentence permitted by law.
Petersen-Beard appealed the district court's ruling to the Court of Appeals but did
not prevail. State v. Petersen-Beard, No. 108,061, 2013 WL 4046444 (Kan. App. 2013)
(unpublished opinion). Petersen-Beard now brings his appeal to this court reprising the
arguments he made below that the requirement in Kansas law of lifetime registration as a
sex offender is unconstitutional. We granted Petersen-Beard's petition for review
pursuant to K.S.A. 20-3018(b), exercise jurisdiction pursuant to K.S.A. 60-2101(b), and
affirm.
ANALYSIS
Standard of Review
This appeal requires us to decide whether KORA's mandatory lifetime sex
offender registration as set forth in K.S.A. 22-4901 et seq., runs afoul of either the Eighth
Amendment's prohibition against "cruel and unusual punishments" or § 9's prohibition
against "cruel or unusual punishment." The constitutionality of a statute is a question of
law over which this court exercises plenary review. State v. Mossman, 294 Kan. 901, 906,
281 P.3d 153 (2012). "We presume statutes are constitutional and must resolve all doubts
in favor of a statute's validity." State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). "It
is not the duty of this court to criticize the legislature or to substitute its view on
economic or social policy; it is the duty of this court to safeguard the constitution." State
ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).
Typically, challenges arising under either the Eighth Amendment or § 9, or both,
attack criminal sanctions against persons convicted of crimes as being cruel and/or
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unusual. Such is the case with Petersen-Beard's argument here. However, as the State
points out, there remains a threshold question as to whether the challenged sanction is
punishment at all for purposes of either the Eighth Amendment or § 9, or is rather a civil
and nonpunitive sanction. Here, the State claims that KORA's requirement of lifetime sex
offender registration in Petersen-Beard's case is not punishment at all and is therefore not
subject to our normal cruel and unusual analysis. For the reasons set forth below, we
agree.
KORA's lifetime sex offender registration requirements are not punishment for purposes
of applying the United States Constitution.
In Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the
United States Supreme Court set out the following framework for analyzing whether a
legislature's statutory scheme is punitive:
"We must 'ascertain whether the legislature meant the statute to establish "civil"
proceedings.' Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the
legislature was to impose punishment, that ends the inquiry. If, however, the intention
was to enact a regulatory scheme that is civil and nonpunitive, we must further examine
whether the statutory scheme is '"so punitive either in purpose or effect as to negate [the
State's] intention" to deem it "civil."' Ibid. (quoting United States v. Ward, 448 U.S. 242,
248-249 (1980)). Because we 'ordinarily defer to the legislature's stated intent,'
Hendricks, supra, at 361, '"only the clearest proof" will suffice to override legislative
intent and transform what has been denominated a civil remedy into a criminal penalty,'
Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249, [100 S.
Ct. at 2641]); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267,
290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984)."
This framework is often referred to as the "intent-effects" test. Moore v. Avoyelles
Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001). In Smith v. Doe, the Supreme
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Court reasoned that a "conclusion that the legislature intended to punish" would resolve
the question of the punitive nature of the statutory scheme "without further inquiry into
its effects." 538 U.S. at 92-93. Applying the intent-effects test to KORA's lifetime
registration provisions, we have held today in Thompson that our legislature intended
those provisions of KORA to be a nonpunitive and civil regulatory scheme rather than
punishment. See Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day
decided), slip op. at 22-31 (citing State v. Myers, 260 Kan. 669, 923 P.3d 1024 [1996]
[lifetime postrelease registration under Kansas Sex Offender Registration Act was
nonpunitive in nature], cert. denied 521 U.S. 1118 [1997]. We agree and do not disturb
that aspect of Thompson or its companion cases. See State v. Redmond, 304 Kan. ___,
___ P.3d ___ (No. 110,280, this day decided), slip op. at 6; State v. Buser, 304 Kan. ___,
___ P.3d ___ (No. 105,982, this day decided), slip op. at 6.
Because the legislature did not intend for KORA's lifetime sex offender
registration scheme to be punishment, we must next turn to the effect of those provisions
to determine whether, by "'"the clearest proof,"'" those effects "'override legislative intent
and transform what has been denominated a civil remedy into a criminal penalty.'" Smith,
538 U.S. at 92. The Supreme Court in Smith utilized the seven factors identified in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644(1963), to decide whether the effects of the legislative enactment negated and overrode
the legislature's intent to establish a civil regulatory scheme. Smith, 538 U.S. at 97. The
Mendoza-Martinez factors are:
"Whether the sanction involves an affirmative disability or restraint, whether it has
historically been regarded as a punishment, whether it comes into play only on a finding
of scienter, whether its operation will promote the traditional aims of punishment—
retribution and deterrence, whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be connected is assignable for
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it, and whether it appears excessive in relation to the alternative purpose assigned . . . ."
Mendoza-Martinez, 372 U.S. at 168-69.
While in Smith, the Mendoza-Martinez factors were applied to determine whether
a lifetime registration scheme was punishment for ex post facto purposes rather than for
purposes of the Eighth Amendment, there exists no analytical distinction between or
among the different constitutional contexts in which the question of punishment versus a
civil regulatory scheme can arise. "The common inquiry across the Court's Eighth
Amendment, ex post facto, and double jeopardy jurisprudence is determining whether the
government's sanction is punitive in nature and intended to serve as punishment." Hinds
v. Lynch, 790 F.3d 259, 264 n.5 (1st Cir. 2015) (citing Mendoza-Martinez); see also
United States v. Under Seal, 709 F.3d 257, 263-64 (4th Cir. 2013) (using Mendoza-
Martinez factors to determine federal Sex Offender Registration and Notification Act
(SORNA), 42 U.S.C. § 16901 et seq. (2012), is nonpunitive for purposes of the Eighth
Amendment); Myrie v. Commissioner, N.J. Dept. of Corrections, 267 F.3d 251, 262 (3d
Cir. 2001) (applying Mendoza-Martinez factors to an Eighth Amendment "Excessive
Fines" Clause challenge); Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir. 1999) (using
Mendoza-Martinez factors to determine Tennessee's Sex Offender Registration and
Monitoring Act was nonpunitive under the Eighth Amendment); Hare v. City of Corinth,
MS, 74 F.3d 633, 651-52 (5th Cir. 1996) (Dennis, J., concurring) (using Mendoza-
Martinez factors to evaluate whether a pretrial detainee was punished under the Eighth
Amendment); People v. Adams, 144 Ill. 2d 381, 388, 581 N.E.2d 637 (1991) (court
would have used Mendoza-Martinez factors to evaluate Eighth Amendment claim if
conclusive evidence of legislative intent was unavailable); In re Justin B., 405 S.C. 391,
404, 747 S.E.2d 774 (2013) (using Mendoza-Martinez to evaluate sex offender
registration under the Eighth Amendment).
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Given this, if KORA's lifetime sex offender registration requirement is punishment
for either ex post facto or double jeopardy purposes, it must necessarily also be
punishment for Eighth Amendment purposes. The reverse would likewise be true. Thus,
while the question of whether KORA is punishment arises here in the context of the
Eighth Amendment, we must necessarily address our decisions, issued today, in
Redmond, Buser, and Thompson. In Redmond, Buser, and Thompson, we held that the
identical statutory provisions we consider here are, in fact, punishment for ex post facto
purposes. Redmond, 304 Kan. ___, ___, No. 110,280, slip op. at 9; Buser, 304 Kan. ___,
___, No. 105,982, slip op. at 12; Thompson, 304 Kan. ___, ___, No. 110,318, this day
decided, slip op. at 44.
If we were to follow those holdings, we would conclude that KORA's lifetime sex
offender registration requirement is punishment for Eighth Amendment purposes and we
would proceed with a cruel and unusual analysis pursuant to established precedent.
However, this court is persuaded that the holding of Thompson, Buser, and Redmond that
KORA constitutes punishment is incorrect. We are instead convinced by the dissent in
Thompson that a faithful application of federal precedents requires us to find that the
provisions of KORA at issue here are not punitive for purposes of applying our federal
Constitution. We therefore overrule the contrary holdings of Thompson, Buser, and
Redmond.
Because we are persuaded by the Thompson dissent on this question, we take the
unusual step of quoting liberally from that opinion and adopting its reasoning in toto:
"Federal appellate courts have unanimously held retroactive application of the
federal offender registration requirements found in SORNA does not violate the Ex Post
Facto Clause. United States v. Brunner, 726 F.3d 299, 303 (2d Cir. 2013); United States
v. Parks, 698 F.3d 1, 5-6 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th
Cir. 2012); United States v. Elkins, 683 F.3d 1039, 1045 (9th Cir. 2012); United States v.
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Leach, 639 F.3d 769, 773 (7th Cir. 2011); United States v. W.B.H., 664 F.3d 848, 860
(11th Cir. 2011); United States v. Shenandoah, 595 F.3d 151 (3d Cir.), cert. denied 560
U.S. 974 (2010), abrogated on other grounds by Reynolds v. United States, 565 U.S. ___,
132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); United States v. Gould, 568 F.3d 459, 466 (4th
Cir. 2009), cert. denied 559 U.S. 974 (2010); Young, 585 F.3d at 206 (noting that Young
made no "effort to prove that the effect of SORNA is so punitive as to make it not a civil
scheme, and any attempt to do so would have been futile"); United States v. May, 535
F.3d 912, 919-20 (8th Cir. 2008), cert. denied 556 U.S. 1258 (2009), abrogated on other
grounds by Reynolds, 132 S. Ct. 975 (2012); United States v. Hinkley, 550 F.3d 926, 937-
38 (10th Cir. 2008), abrogated on other grounds by Reynolds v. United States, 565 U.S.
___, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); see also United States v. Under Seal, 709
F.3d 257, 265 (4th Cir. 2013) (applying Mendoza-Martinez factors to hold SORNA was
not cruel and unusual punishment as applied to a juvenile); United States v. Stacey, 570
Fed. Appx. 213, 216 (3d Cir. 2014) (holding ex post facto challenge to conviction for
failing to register under SORNA foreclosed by Shenandoah); United States v. Sampsell,
541 Fed. Appx. 258, 260 (4th Cir. 2013) (holding ex post facto challenge to SORNA
foreclosed by Gould).
"In addition, federal circuit courts have upheld state sex offender registration
laws against federal ex post facto challenges, even when those state laws contained
provisions more expansive in scope and impact than either SORNA or the Alaska
provisions addressed in Smith. See Litmon v. Harris, 768 F.3d 1237, 1242-43 (9th Cir.
2014) (upholding California requirement that offenders register in-person every 90 days);
American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1051, 1058 (9th Cir.
2012) (upholding Nevada law expanding category of individuals who must register,
increasing time period offenders were subject to registration, adding in-person
registration requirements, and expanding law enforcement obligations to notify specified
entities that an offender resided nearby); Doe v. Bredesen, 507 F.3d 998, 1000 (6th Cir.
2007) (upholding Tennessee law requiring, among other things, extended lifetime
registration and satellite-based monitoring with wearable GPS device); Hatton v. Bonner,
356 F.3d 955, 967 (9th Cir. 2004) (upholding California law containing several
provisions different from the Alaska statute analyzed in Smith).
8
"The majority disingenuously characterizes this unanimous body of caselaw as
just the decisions of 'a number of Federal Circuit Courts of Appeal,' which it then
discounts by noting the obvious, i.e., there are differences between the federal SORNA
and our state's KORA. Slip op. at 44. And while it is true that none of the statutory
schemes upheld by other courts are identical to KORA, there is substantial overlap, and
so the rationale from those decisions should apply with equal force here. I would not so
quickly disdain this federal caselaw because it compellingly answers the real question
presented: Are there convincing reasons to believe the United States Supreme Court
would view KORA differently than it viewed the Alaska law in 2003 when it decided
Smith? See Litmon, 768 F.3d at 1243 ('[T]here is no reason to believe that the addition of
[the 90-day, in-person registration] requirement would have changed the outcome [in
Smith].'). If the answer to that question is no, then this court must affirm.
"[Given that the legislature did not intend KORA to be punishment], we must
decide whether KORA is '"'so punitive either in purpose or effect as to negate [the
State's] intention' to deem [KORA] 'civil.'"' Smith, 538 U.S. at 92. This is where I depart
from the majority's analysis.
"For this second step, we should follow the federal factors laid out in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). See
Smith, 538 U.S. at 97. Those factors consider the degree to which the regulatory scheme
imposes a sanction that: (1) has historically been regarded as punishment; (2) constitutes
an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4)
is rationally connected to a nonpunitive purpose; (5) is excessive in relation to the
identified nonpunitive purpose; (6) contains a sanction requiring a finding of scienter; and
(7) applies the sanction to behavior that is already a crime. Mendoza-Martinez, 372 U.S.
at 168. In Smith, the Court focused on the first five as more relevant in evaluating
Alaska's registration and notification law, concluding the remaining two were of 'little
weight.' 538 U.S. at 105. I will do the same.
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"HISTORICAL FORM OF PUNISHMENT
"The majority holds that the 2011 KORA 'crosses the line drawn by Smith' by too
closely resembling the shaming punishments from the colonial period. Slip op. at 36-37.
KORA does this, according to the majority, by posting the registrant's information on the
Internet, 'branding' a registrant's driver's license with the letters 'RO,' and requiring
quarterly registration in each location where an offender works, lives, or attends school.
Let's take each of these in turn.
"Posting offender information on the Internet
"As summarized below, there is overwhelming federal authority holding that
Internet posting of registrant information is not analogous to historical forms of
punishment. The analysis used to reach that conclusion applies in equal force to KORA,
regardless of other differences the statutory schemes may have. The majority overreaches
by rejecting this caselaw and adopting a contrary view.
"In Smith, the United States Supreme Court held that Alaska's offender
registration act could apply retroactively and '[t]he fact that Alaska posts the information
on the Internet does not alter our conclusion.' 538 U.S. at 99. The Court held the posting
requirement was not akin to historical punishments despite recognizing that it subjects the
offender to public shame or humiliation because most of the information related to an
already public criminal record and dissemination of it furthers a legitimate governmental
objective. 538 U.S. at 99. The Smith Court explained:
'[T]he stigma of Alaska's Megan's Law results not from public display
for ridicule and shaming but from the dissemination of accurate
information about a criminal record, most of which is already public. Our
system does not treat dissemination of truthful information in furtherance
of a legitimate governmental objective as punishment. On the contrary,
our criminal law tradition insists on public indictment, public trial, and
public imposition of sentence. Transparency is essential to maintaining
public respect for the criminal justice system, ensuring its integrity, and
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protecting the rights of the accused. The publicity may cause adverse
consequences for the convicted defendant, running from mild personal
embarrassment to social ostracism. In contrast to the colonial shaming
punishments, however, the State does not make the publicity and the
resulting stigma an integral part of the objective of the regulatory
scheme.' 538 U.S. at 98-99.
"The Smith Court then added:
'The fact that Alaska posts the information on the Internet does
not alter our conclusion. It must be acknowledged that notice of a
criminal conviction subjects the offender to public shame, the
humiliation increasing in proportion to the extent of the publicity. And
the geographic reach of the Internet is greater than anything which could
have been designed in colonial times. These facts do not render Internet
notification punitive. The purpose and the principal effect of notification
are to inform the public for its own safety, not to humiliate the offender.
Widespread public access is necessary for the efficacy of the scheme,
and the attendant humiliation is but a collateral consequence of a valid
regulation.' 538 U.S. at 99.
In so holding, the Court's analysis recognizes the obvious—posting information on the
Internet makes it far more accessible and subjects the offender to increased shame and
humiliation. Nevertheless, the Court held that Internet posting did not make Alaska's
statutory scheme punitive.
"The majority characterizes the Smith Court's 2003 analysis of the Internet as
'antiquated,' and then concludes: 'Any suggestion that disseminating sex offender
registration [information] on an Internet website reaches no more members of the public
and is no more burdensome to the offender than maintaining an archived criminal record
simply ignores the reality of today's world.' Slip op. at 37-38.
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"But as seen from its holding, Smith did not base its conclusion on some old-
fashioned, dial-up modem/floppy disk notion of the World Wide Web; nor did it consider
accessing offender information on the Internet nothing more than a walk to the
courthouse to thumb through publicly available paper files. Smith's rationale withstands
the more recent development of a mobile, smartphone Internet. Indeed, these
developments can be viewed as furthering the nonpunitive, public safety ends supporting
offender registration because, as Smith acknowledged, '[w]idespread public access is
necessary for the efficacy of the scheme.' Smith, 538 U.S. at 99. The majority simply
disagrees with the Court's conclusion but needs a rationale for considering the question
further. This becomes overwhelmingly evident when the authority from more recent
courts applying Smith is acknowledged.
"Consider first the federal notification statute, SORNA. Similar to KORA, the
federal law requires that offender information including the offenders' names, physical
descriptions, photographs, criminal offenses, and criminal histories be made publicly
available on the Internet. See 42 U.S.C. §§ 16914, 16918-16920 (2012). Under SORNA,
the states and enumerated territories, including the District of Columbia and Puerto Rico,
must each maintain websites for this purpose. See 42 U.S.C. §§ 16911(10); 16918(a)
(2012). The federal government, in turn, must maintain a website containing 'relevant
information for each sex offender and other person listed on a jurisdiction's Internet site.'
42 U.S.C. § 16920. Each of these websites must make the information obtainable 'by a
single query for any given zip code or geographic radius set by the user.' 42 U.S.C.
§§ 16918(a), 16920(b). And among SORNA's others mandates, an appropriate official
must affirmatively distribute notice of an individual's sex offender status to 'each school
and public housing agency' in the area where that sex offender resides. 42 U.S.C.
§ 16921(b)(2) (2012). In short, SORNA goes further than the Alaska scheme at issue in
Smith and further than KORA as to affirmative notification of statutorily specified
groups.
"Nevertheless, all federal circuits addressing whether SORNA's publication
requirements are punitive have followed Smith and held they are not, despite candidly
recognizing they can result in greatly increased public shame. See, e.g., Parks, 698 F.3d
at 5-6 (noting the disadvantages from the publicity attendant to SORNA's Internet
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requirements 'are obvious' and refusing to invalidate SORNA due to 'wide dissemination'
of offender's information, citing Smith); Hinckley, 550 F.3d at 937-38 ('SORNA, just as
the Smith scheme, merely provides for the "dissemination of accurate information about a
criminal record, most of which is already public"'); see also United States v. Talada, 631
F. Supp. 2d 797, 808 (S.D. W. Va. 2009) (citing Smith and upholding SORNA as a valid
regulatory program even though it requires widespread Internet dissemination of
offenders' information, a community notification program, and in-person reporting).
"Also persuasive is the Ninth Circuit's 2012 decision upholding retroactive
application of a Nevada statute that, among other things, not only required Internet
publication of registration information, but also active notification to specified groups
over and above what was required by SORNA, such as youth and religious organizations.
Masto, 670 F.3d at 1051. In rejecting any notion that these features were akin to historical
forms of punishment, the Ninth Circuit held:
'Active dissemination of an individual's sex offender status does not alter
the [Smith] Court's core reasoning that "stigma . . . results not from
public display for ridicule and shaming but from the dissemination of
accurate information about a criminal record, most of which is already
public." [Citation omitted.] Though "humiliation increas[es] in
proportion to the extent of the publicity," the "purpose and the principal
effect of notification are to inform the public for its own safety."
[Citation omitted.]' 670 F.3d at 1056.
"There is also recent state court authority, relying heavily on Smith, that holds
posting registered offenders' information on the Internet is not akin to traditional shaming
punishments. See Kammerer v. State, 322 P.3d 827, 834-36 (Wyo. 2014) ('Although
dissemination of information relating to a registrant's status as a sex offender may have
negative consequences for the registrant, information regarding the offense is made
public at the time of trial, and its publication under WSORA is merely a necessary
consequence of the Act's intent to protect the public from harm.'); State v. Letalien, 2009
ME 130, ¶ 38, 985 A.2d 4 (2009) (Internet posting of sex offender information is not
punitive in purpose or effect, citing Smith; Maine and federal Ex Post Facto Clauses are
13
coextensive); see also Doe I v. Williams, 2013 ME 24, ¶ 35, 61 A.3d 718 (2013)
(following Letalien).
"I would follow this abundant caselaw and hold that KORA's Internet posting of
information is not akin to historical shaming punishments. And in reaching that
conclusion, I would further note the majority's discussion of the sharing functions
available on the Johnson County Sherriff's website is irrelevant to the statute's
constitutionality because KORA does not require this capability; and, just as importantly,
the majority cites no authority that would find a federal ex post facto violation because of
a nonstatutorily mandated software feature added by a local law enforcement agency.
"Regardless, given the overwhelming weight and substance of the caselaw
rejecting federal ex post facto challenges based on widespread Internet dissemination of
offender registration information, as well as the federal courts' more recent validations of
Smith, I would not consider Smith's rationale to be 'antiquated' or subject to easy
dismissal, and I would not weigh this against the statute's constitutionality. The majority
errs in this regard.
"'Branding' a registrant's driver's license
"Next, the majority declares that KORA 'mimics [the] shaming of old by
branding the driver's license of a registrant with the designation, "RO."' Slip op. at 36.
The majority is referring to K.S.A. 2011 Supp. 8-243, which provides that an offender's
driver's license 'shall be assigned a distinguishing number by the division [of motor
vehicles] which will readily indicate to law enforcement officers that such person is a
registered offender. The division shall develop a numbering system to implement the
provisions of this subsection.' This requirement, while not technically contained in
KORA, differentiates Kansas laws from SORNA, although the statute only requires a
distinguishing number and the 'RO' practice is just a decision by a state agency that is not
specifically dictated by the statute. See K.S.A. 8-243(d).
"The majority draws support for its view from a divided decision in Starkey v.
Oklahoma Dept. of Corrections, 2013 OK 43, 305 P.3d 1004 (2013), which considered
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the Oklahoma Constitution's Ex Post Facto Clause. See Okla. Const., art. 2, § 15. But I do
not find Starkey persuasive for several reasons.
"First, although the Oklahoma Supreme Court applied the intent-effects test, that
court's majority suggests they applied a lower standard as to when the effects of a
measure are punitive under the Oklahoma Ex Post Facto Clause by noting that the United
States Constitution simply establishes a floor for constitutional rights in Oklahoma. 2013
OK 43, ¶ 45 ('How we apply the "intent-effects" test is not governed by how the federal
courts have independently applied the same test under the United States Constitution as
long as our interpretation is at least as protective as the federal interpretation.'). Second,
Oklahoma's offender registry law imposed harsher restraints on offenders because of
residency boundaries (minimum distance from schools, playgrounds, etc.) and a
requirement that Oklahoma driver's licenses and identification cards spell out the term
'Sex Offender.' In contrast, KORA contains no residency exclusions and Kansas simply
uses as a matter of state agency practice an abbreviation (RO), which applies equally to
non-sex-offenders. Finally, the Starkey court relied upon the totality of the Oklahoma
law's harsher circumstances when determining they weighed in favor of punishment.
2013 OK 43, ¶ 61 ('[W]e are not making a determination of the constitutionality of any of
these individual registration requirements but for purposes of analyzing the second
Mendoza-Martinez factor we find the totality of these requirements weigh in favor of
punishment.').
"Offering a different analysis, the Louisiana Supreme Court's unanimous
decision in Smith v. State, 84 So. 3d 487 (La. 2012), reached the opposite conclusion
regarding its driver's license labeling and is more on point. In so holding, the Louisiana
court acknowledged that including the words 'sex offender' printed in orange color on an
offender's driver's license 'may be remotely similar to historical forms of punishment,
such as public humiliation, [but] the immediate need for public protection was a corollary
of, rather than an addendum to, the punishment for sex offenders.' Smith, 84 So. 3d at 496
n.7-8, 498. The court then concluded that the requirement of a notation on an offender's
driver's license 'may be harsh, may impact a sex offender's life in a long-lived and intense
manner, and also be quite burdensome to the sex offender, [but] we do not find them to
constitute an infringement of the principles of ex post facto.' 84 So. 3d at 499.
15
"Admittedly, the Louisiana court did not articulate whether it was relying on the
federal or state constitution for its holding, but this does not appear to make a difference
because that court had previously held Louisiana's Ex Post Facto Clause offers the same
protections because it was patterned after the United States Constitution. See State ex rel.
Olvieri v. State, 779 So. 2d 735 (La. 2001). For this reason, I find the Louisiana decision
more persuasive than the Oklahoma decision.
"Quarterly Registration
"Next, the majority labels KORA's quarterly, in-person registration requirements
for each location where the offender works, lives, or attends school as 'a traditional
means of punishment' by likening the requirement to probation or parole. (Slip op. at 38.)
It does so without citation to any authority or explanation as to how quarterly reporting
mandates offend federal ex post facto caselaw. Again, a review of the unanimous federal
caselaw upholding SORNA is persuasive and leads to a contrary conclusion.
"SORNA's in-person reporting requirements differentiate between types of sex
offenses in determining the frequency of in-person reporting. There must be in-person
verification 'not less frequently than' once a year for Tier I sex offenders, twice a year for
Tier II sex offenders, and four times per year for Tier III sex offenders. 42 U.S.C.
§ 16916 (2012); see 42 U.S.C. § 16911 (defining Tiers I, II, and III). In Parks, the First
Circuit recently noted SORNA's in-person requirement was 'surely burdensome for those
subject to it,' but nevertheless concluded this was not punitive, noting:
'To appear in person to update a registration is doubtless more
inconvenient than doing so by telephone, mail or web entry; but it serves
the remedial purpose of establishing that the individual is in the vicinity
and not in some other jurisdiction where he may not have registered,
confirms identity by fingerprints and records the individual's current
appearance. Further, the inconvenience is surely minor compared to the
disadvantages of the underlying scheme in its consequences for renting
16
housing, obtaining work and the like—consequences that were part of
the package that Smith itself upheld.' 698 F.3d at 6.
See Doe v. Pataki, 120 F.3d 1263, 1281-82 (2d Cir. 1997); see also Doe v. Cuomo, 755
F.3d 105, 112 (2d Cir. 2014) (approving triennial, in-person reporting as being
reasonably related to the nonpunitive, prospective goals of protecting the public and
facilitating law enforcement efforts).
"Admittedly, KORA's reporting requirements are more burdensome than those in
SORNA because under KORA, all sex offenders are subject to in-person registration four
times per year, and drug and violent offenders must report in person a minimum of three
times per year. K.S.A. 2011 Supp. 22-4905(b). KORA further requires an offender to
report registration changes in person 'to the . . . agency or agencies where last registered.'
(Emphasis added.) K.S.A. 2011 Supp. 22-4905(a), (g). In addition, the definition of
'reside' in KORA is broader than the definition in SORNA. Compare K.S.A. 2011 Supp.
22-4902(j) (definition of 'reside') with SORNA's 42 U.S.C. § 16911. Therefore, it is
obvious KORA imposes a greater registration burden on the offender than SORNA. But
the question is whether the federal courts would view these changes as tipping the
balance. I think not.
"Consider again as an example Matso in which the Ninth Circuit rejected a
federal ex post facto challenge to a Nevada law that essentially mirrored SORNA's
registration requirements, but also expanded the category of individuals required to
register, added to the frequency offenders were subject to registration, and required in-
person registration. Matso, 670 F.3d at 1051; see also Litmon, 768 F.3d at 1242-43
(holding California's 90-day, in-person lifetime registration requirement does not violate
federal ex post facto principles); Hatton, 356 F.3d at 965 (no evidence California's
registration requirement has an objective to shame, ridicule, or stigmatize sex offenders).
These decisions strongly point in a direction that indicates KORA's reporting
requirements do not offend federal ex post facto principles.
"Additionally, the majority's analogy to probation is not persuasive. While
probation/parole may have 'reporting' in common in the abstract, this is only one aspect
17
of many conditions attached to these punishments. For example, probationers are subject
to searches of their persons and property simply on reasonable suspicion of a probation
violation or criminal activity and are subject to random drug tests. They may also be
required to avoid 'injurious or vicious habits' and 'persons or places of disreputable or
harmful character'; permit state agents to visit their homes; remain in Kansas unless given
permission to leave; work 'faithfully at suitable employment'; perform community
service; go on house arrest; and even serve time in a county jail. K.S.A. 2011 Supp. 21-
6607(b), (c).
"In sum, I do not believe the federal courts, more specifically the United States
Supreme Court, would hold that this historical-form-of-punishment factor weighs toward
an ex post facto violation.
"AFFIRMATIVE DISABILITY OR RESTRAINT
"The majority focuses next on what it characterizes as the 'more common
restraint on an offender's freedom of movement' under KORA, which is the quarterly
registration requirement in each applicable jurisdiction and the required $20 registration
fee, as well as the KORA's broader definition of the word 'resides.' Slip op. at 38. The
majority notes the registration costs, depending on circumstances, could be $80 to $240
annually.
"But the majority fails to explain how the federal courts would hold that these
components of KORA would weigh this factor against the Kansas law. For example, no
evidence was presented establishing that the KORA registration costs were a fine instead
of a fee. See Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014) ('The burden of
proving that it is a fine is on the plaintiffs . . . .').
"In Mueller, the Seventh Circuit recently upheld Wisconsin's annual $100
registration fee against a sex offender who moved out-of-state but was still required to
register in Wisconsin. In doing so, the court noted first that plaintiff had done nothing to
get over the first hurdle by presenting evidence regarding the fee versus the registration
program's cost. 740 F.3d at 1134 ('[T]hey cannot get to first base without evidence that it
18
is grossly disproportionate to the annual cost of keeping track of a sex offender
registrant—and they have presented no evidence of that either. They haven't even tried.').
Similarly, Doe has done nothing as to this evidentiary hurdle, yet the majority strikes this
factor against KORA even though the burden is on the challenger and the statute is
presumed constitutional.
"Second, the Seventh Circuit noted the nonpunitive purpose of collecting fees
and where the responsibility lies for having to provide a registry, stating:
'The state provides a service to the law-abiding public by maintaining a
sex offender registry, but there would be no service and hence no
expense were there no sex offenders. As they are responsible for the
expense, there is nothing punitive about requiring them to defray it.' 740
F.3d at 1135.
"If it is the potential for a total annual cost of $240 that offends the majority,
what is the legal basis for that? The majority leaves this unexplained.
"Next, the majority holds that housing and employment problems result from the
registry, which ties back to the widespread dissemination of information on the Internet
discussed above, which Smith and the other federal courts have plainly rejected. But the
majority believes KORA suffers an additional evidentiary blow because of direct
evidence that Doe actually lost a job and housing opportunities because of the Internet
registry. I disagree this tips the balance when the caselaw is considered.
"As noted earlier, my review of federal caselaw from Smith on down shows the
courts have fully understood that actual consequences result from offender registration
and have not dismissed these consequences simply as conjecture. See, e.g., Smith, 538
U.S. at 99; Parks, 698 F.3d at 6 ('The prospective disadvantages to Parks from such
publicity are obvious.'). Indeed, several courts have approved state laws that imposed
actual residential living restrictions on offenders, which are literally off-limits zones
disabling offenders from living in close proximity to schools, playgrounds, etc. See Doe
v. Miller, 405 F.3d 700 (8th Cir. 2005) (Iowa's 2,000-foot buffer zone regulatory, not
19
punitive); Salter v. State, 971 So. 2d 31 (Ala. Civ. App. 2007) (approving 2,000-foot
buffer zone); People v. Leroy, 357 Ill. App. 3d 530, 828 N.E.2d 769 (2005) (approving
500-foot buffer zone); State v. Seering, 701 N.W.2d 655 (Iowa 2005) (upholding 2,000-
foot buffer zone); see also Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir. 2007)('The
[Tennessee] Act's registration, reporting, and surveillance components are not of a type
that we have traditionally considered as a punishment, and the district court correctly
found that they do not constitute an affirmative disability or restraint in light of the
legislature's intent.'); Standley v. Town of Woodfin, 186 N.C. App. 134, 650 S.E.2d 618(2007) (upholding ban on entering public park); Doe v. Baker, No. Civ. A. 1:05-CV-
2265, 2006 WL 905368 (N.D. Ga. 2006) (unpublished opinion) (upholding 1,000-foot
buffer zone). Clearly, such exclusions cause lost opportunities for housing and
employment for offenders, yet these prohibitions were upheld as nonpunitive.
"I am not persuaded the federal courts would find KORA to impose requirements
traditionally considered to be affirmative disabilities or restraints to the point of weighing
this factor against constitutionality.
"TRADITIONAL AIMS OF PUNISHMENT
"The third Mendoza-Martinez factor is whether the 'regulatory scheme . . .
promotes the traditional aims of punishment.' Smith, 538 U.S. at 97. The Court has
described those aims as retribution and deterrence. See, e.g., Mendoza-Martinez, 372
U.S. at 168.
"The majority's analysis of this factor is muddled and difficult to unpack. It is
unclear to me whether the majority is relying on the articles attached to Doe's summary
judgment motion or its own intuition. As best as I can tell, the majority ultimately ignores
the attachments and simply holds that KORA promotes traditional aims of punishment
because the legislature increased the reporting term from 10 to 25 years. Slip op. at 41.
But this conclusion is at odds with the federal caselaw.
"But the fact that KORA has a deterrent effect is not conclusive. The Smith Court
found that '[a]ny number of government programs might deter crime without imposing
20
punishment' and "'[t]o hold that the mere presence of a deterrent purpose renders such
sanctions 'criminal' . . . would severely undermine the Government's ability to engage in
effective regulation." [Citations omitted.]' 538 U.S. at 102. The Court also rejected the
lower court's finding that Alaska's registration obligations were retributive based upon the
length of reporting differing between individuals convicted of nonaggravated offenses
and those 'convicted of aggravated or multiple offenses.' 538 U.S. at 102. The Court
found the 'categories . . . and the corresponding length of the reporting requirement are
reasonably related to the danger of recidivism, and this is consistent with the regulatory
objective.' (Emphasis added.) 538 U.S. at 102.
"The Smith Court's analysis is equally applicable to KORA, though not wholly
dispositive because the Court was addressing a 15-year registration requirement and
KORA has a 25-year requirement. But SORNA imposes a 25-year registration
requirement on Tier II offenders and a lifetime requirement on Tier III offenders, 42
U.S.C. § 16915 (2012), and the federal courts addressing this issue have upheld SORNA
based on Smith.
"The Eleventh Circuit addressed this registration requirement in W.B.H. and held
that SORNA is no different than the Alaska act at issue in Smith. 664 F.3d at 858-59. The
W.B.H. court reasoned that SORNA is 'reasonably related to the danger of recidivism
posed by sex offenders.' 664 F.3d at 858. And the court explained that while SORNA
'allows the public and law enforcement to determine the general whereabouts of
convicted sex offenders, . . . it does not directly restrict their mobility, their employment,
or how they spend their time.' 664 F.3d at 858. So, the court found that any deterrent
effect or purpose of SORNA does not justify a finding that the act's purpose is punitive.
664 F.3d at 858; see also Under Seal, 709 F.3d at 265 (quoting from Smith to find that
SORNA does not promote traditional aims of punishment).
"I would find under Smith and the cases interpreting SORNA that the traditional
aims of punishment factor weighs in favor of KORA being fairly characterized as
nonpunitive.
21
"RATIONAL CONNECTION TO NONPUNITIVE PURPOSE
"In Smith, the Court identified this as 'a "most significant" factor in our
determination that the statute's effects are not punitive.' 538 U.S. at 102 (citing United
States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L. Ed. 2d 549 [1996]). The
Smith Court did not elaborate on what is meant by 'rational connection to a nonpuntive
purpose' before analyzing the Alaska act under the standard. One commentator has noted
that the standard is 'deferential to the state purpose (much like rational basis review under
substantive due process analysis).' Hobson, Banishing Acts: How Far May States Go to
Keep Convicted Sex Offenders Away from Children?, 40 Ga. L. Rev. 961, 984 (2006). In
State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008), this court determined that 'the
registration act was intended to promote public safety and to protect the public from sex
offenders, who constitute a class of criminals that is likely to reoffend.'
"The majority concludes that arguably under the current version of KORA,
'public safety has become a pretext.' Slip op. at 42. The majority finds fault with KORA
because it does not distinguish between types of offenders and contains no mechanism
for relieving a 'fully rehabilitated' offender from its notification burdens. But the Ninth
Circuit and others have rejected similar arguments. In Matso, the court held:
'Plaintiffs argue Smith overstated the risk of sex-offender
recidivism. They note that Smith cited several studies on sex offender
recidivism. See id. at 104. Plaintiffs then rely on an expert declaration
critiquing the methodology of the recidivism studies in Smith. The
district court did not make any factual finding regarding the risk of sex
offender recidivism. Even had it adopted the declaration's conclusions as
its own, a recalibrated assessment of recidivism risk would not refute the
legitimate public safety interest in monitoring sex-offender presence in
the community.' 670 F.3d at 1057.
See also Bredesen, 507 F.3d at 1006 (Tennessee Legislature 'could rationally conclude
that sex offenders present an unusually high risk of recidivism, and that stringent
registration, reporting, and electronic surveillance requirements can reduce that risk and
22
thereby protect the public' and concluding that '[w]here there is such a rational connection
to a nonpunitive purpose, it is not for the courts to second-guess the state legislature's
policy decision'). In addition, the Second Circuit recently held the New York
Legislature's 'decision to eliminate the possibility of relief from registration for twenty
years' for level one offenders did not render the registration provisions punitive. Cuomo,
755 F.3d at 112.
"The majority fails to cite any authority for its analysis of this factor; and the
proposition that offender registration schemes are rationally related to the nonpunitive
purpose of public safety finds overwhelming approval in the federal caselaw. Even
Myers, 260 Kan. at 681, appears to assume offender registration is rationally connected to
public safety, and the Alaska state case that held post-Smith changes to the Alaska act
were an ex post facto violation admits registration, at least as to sex offenders, advances a
nonpunitive public safety purpose. See Doe v. State, 189 P.3d 999, 1015-16 (Alaska
2008).
"I do not see how the majority can say no public safety purpose is rationally
furthered by having sex, drug, and violent offenders register. I would follow the
referenced precedent and hold that KORA has a rational connection to a nonpunitive
purpose, so this factor does not weight towards punishment.
"EXCESSIVE IN RELATION TO REGULATORY PURPOSE
"In Smith, the Court clarified that '[t]he excessiveness inquiry of our ex post facto
jurisprudence is not an exercise in determining whether the legislature has made the best
choice possible to address the problem it seeks to remedy. The question is whether the
regulatory means chosen are reasonable in light of the nonpunitive objective.' 538 U.S. at
105. The Smith Court further noted that ex post facto jurisprudence does not preclude a
state from making reasonable categorical judgments that certain crimes should have
particular regulatory consequence.
"Instead of independently analyzing this factor, the majority merely harkens back
to the ground it already plowed, concluding: 'Our discussion of the other factors has
23
touched upon the excessive nature of KORA.' Slip op. at 43. The majority then
specifically cites the fact that the 2011 KORA amendments required more information
from the offenders and that the penalty for noncompliance has increased. Slip op. at 43. I
would hold that neither of these requirements is excessive given KORA's public safety
purpose based on the authority cited above.
"CONCLUSION
"Although the 2011 KORA offender registration scheme imposes a number of
burdens on sex offenders, I believe the applicable federal caselaw considering similar
burdens under other offender registration schemes compels us to conclude that the 2011
KORA amendments do not violate the United States Constitution's Ex Post Facto Clause
as applied to sex offenders and that the United States Supreme Court would so hold."
Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided), slip op.
at 47-66 (Biles, J., concurring in part and dissenting in part).
Because we conclude the registration requirements Petersen-Beard complains of
are not punishment, his claim that those requirements violate the Eighth Amendment's
prohibition against cruel and unusual punishment cannot survive.
KORA's lifetime sex offender registration requirements are not punishment for purposes
of applying the Kansas Constitution.
Having held that KORA's lifetime sex offender registration requirements are not
punishment for purposes of applying our federal Constitution, we must next consider
whether those same requirements might still be punishment for purposes of applying the
Kansas Constitution. We conclude they are not.
Section 9 of the Kansas Constitution Bill of Rights provides that "[a]ll persons
shall be bailable by sufficient sureties except for capital offenses, where proof is evident
24
or the presumption great. Excessive bail shall not be required, nor excessive fines
imposed, nor cruel or unusual punishment inflicted."
"This court . . . can construe [its] state constitutional provisions independent of
federal interpretation of corresponding provisions." State v. Schultz, 252 Kan. 819, 824,
850 P.2d 818 (1993). While we have the freedom to extend greater protection to Kansas
citizens under the Kansas Constitution than exists under comparable provisions of the
federal Constitution, we generally have not done so. See State v. Spain, 269 Kan. 54, 59,
4 P.3d 621 (2000); Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996); State v.
Morris, 255 Kan. 964, 981, 880 P.2d 1244 (1994); Schultz, 252 Kan. at 826.
However, we have shown a willingness to evaluate § 9 under a separate analytical
framework. See State v. Mossman, 294 Kan. 901, 924, 281 P.3d 153 (2012) (explaining
how proportionality analysis can differ between the two clauses). In this instance,
however, we find no textual or historical evidence that the drafters of § 9 intended the
meaning of "punishment" to differ from the same word's meaning as used in the Eighth
Amendment to the United States Constitution.
The origins of the Eighth Amendment and similar state prohibitions ("punishments
clauses"), such as § 9 of the Kansas Bill of Rights, are in the 1689 English Bill of Rights.
See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966, 111 S. Ct. 2680, 115 L. Ed. 2d 836(1991); Solem v. Helm, 463 U.S. 277, 285 n.10, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983);
3 Story, Commentaries on the Constitution of the United States § 1896 (1833). By 1791,
five state constitutions prohibited "cruel or unusual punishments." See Del. Declaration
of Rights, sec. 16 (1776); Md. Declaration of Rights, art. 22 (1776); Mass. Declaration of
Rights, art. XXVI (1780); N.C. Declaration of Rights, sec. 10 (1776); N.H. Bill of Rights,
art. 33 (1784). Two others prohibited "cruel" punishments. See Pa. Const., art. IX, sec. 13
(1790); S.C. Const., art. IX, sec. 4 (1790). The Eighth Amendment most closely followed
25
the Virginia Declaration of Rights, which prohibited "cruel and unusual" punishment. Va.
Declaration of Rights, sec. 9 (1776).
The Kansas Bill of Rights, adopted as part of the Wyandotte Constitutional
Convention of 1859, was modeled after the Ohio Bill of Rights, although there were "a
few transpositions and changes in phraseology." Perdue, The Sources of the Constitutions
of Kansas, reprinted in 7 Kansas Historical Collections 130-151 (1902). Ohio had created
a new constitution in 1851 and its punishments clause read: "All persons shall be
bailable by sufficient sureties, except for capital offences where the proof is evident, or
the presumption great. Excessive bail shall not be required; nor excessive fines imposed;
nor cruel and unusual punishments inflicted." Ohio Const., art. I, § 9 (1851). Our § 9
tracks Ohio's § 9, but for one key distinction: "or" vs. "and." While this textual difference
may support a divergent application of § 9 in some cases, it is immaterial to our decision
today.
The record regarding the adoption of the Kansas Bill of Rights—and § 9 in
particular—is scarce. We can find no textual or historical reason to depart from our
general practice of giving an identical interpretation to identical language appearing in
both the Kansas Constitution and our federal Constitution. There is no evidence that the
word "punishment" meant anything different to the drafters of the Kansas Constitution
than it did to the framers of the Bill of Rights. Therefore, we conclude the term
punishment has the same meaning in § 9 as it does in the Eighth Amendment. Because
we have held that KORA's sex offender registration requirements do not qualify as
punishment as that word is used in the Eighth Amendment, we likewise conclude that
those requirements are not punishment as that word is used in § 9.
Affirmed.
26
***
JOHNSON, J., dissenting: I dissent from the majority's decision in this case and
from the majority's declaration that it is overruling the decisions in State v. Redmond, 304
Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___,
___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___
P.3d ___ (No. 110,318, this day decided), which I will hereafter collectively refer to as
"Ex Post Facto cases."
The majority does not explain the unusual circumstance whereby the opinions in
the September 2014 Ex Post Facto cases are being filed on the same day as the opinion in
this September 2015 case that purports to overrule their holdings. I firmly believe that
some explanation is warranted in the interests of clarity and transparency. Moreover, I
want to assure that the defendants in the Ex Post Facto cases obtain the relief to which
they are entitled.
The "overruled" Ex Post Facto cases dealt with the question of whether article I, §
10 of the United States Constitution—the Ex Post Facto Clause—prohibited the
retroactive application of the 2011 amendments to the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901 et seq. An initial consideration was whether KORA was even
subject to the Ex Post Facto Clause. The three cases were set together and heard on this
court's docket on September 11, 2014.
At that time, and for some 3 months thereafter, a position on this court was open
due to the appointment of our colleague, Nancy Moritz, to the United States 10th Circuit
Court of Appeals. Consequently, the Chief Justice utilized his constitutional and/or
statutory authority to assign a senior district court judge as the seventh member of this
court to hear and decide cases coming before the court during the vacancy period, which
27
included the September 2014 docket. See K.S.A. 20-2616(b) ("A retired justice or judge
so designated and assigned to perform judicial service or duties shall have the power and
authority to hear and determine all matters covered by the assignment."); see also Kan.
Const. art. 3, § 6(f) ("The supreme court may assign a district court judge to serve
temporarily on the supreme court."). Notably, our constitution does not restrict or limit
the power and authority of a temporarily assigned justice nor does it restrict or limit the
precedential effect of the decisions issued by a supreme court that includes a justice that
is temporarily assigned. Indeed, the Chief Justice often announces at oral argument that a
temporarily assigned jurist will be fully participating in the decision of the court.
As evidenced by the opinions that are now being publicly filed, a majority of the
constitutionally constituted court hearing the Ex Post Facto cases voted to hold that
KORA's statutory scheme, after the 2011 amendments, was so punitive in effect as to
negate any implied legislative intent to deem it civil, so that it was subject to the Ex Post
Facto Clause's prohibition on retroactive application. The decision specifically left intact
all provisions of the 2011 iteration of KORA for any person who committed a qualifying
offense after July 1, 2011, the effective date of the 2011 amendments. In other words, the
majority opinion in the Ex Post Facto cases did not hold KORA unconstitutional, but
rather it held that the retroactive application of KORA's amendments was
unconstitutional. The prohibitions against cruel and/or unusual punishment in our federal
and state constitutions were neither raised as issues nor discussed by this court in the Ex
Post Facto cases.
By August 2015, the opinion in Thompson, the lead Ex Post Facto case, was ready
to be filed with the Clerk of the Appellate Court. By that time, the vacancy on this court
had been filled and this case had been set on a docket to be heard by the newly
constituted court the following month, September 16, 2015, i.e., a year after the
arguments in Thompson. Thereupon, notwithstanding that the outcome for the Ex Post
28
Facto litigants would be unaffected by any subsequent ruling in another case, a majority
of the Ex Post Facto court ordered that the opinions in those cases were to be held in
abeyance pending the newly constituted court's hearing and resolution of Petersen-
Beard's cruel and unusual punishment case.
Then, after a majority of the court in this case determined that it could overrule the
holdings in the Ex Post Facto cases for all future litigants—as disclosed in the majority
opinion above—a majority of the Ex Post Facto court ordered that the release of the Ex
Post Facto cases was to be further delayed until this Petersen-Beard opinion was ready to
be filed. The apparent rationale for the delay was to make the holding in the Ex Post
Facto cases applicable solely to the parties in those cases.
To be clear, this Petersen-Beard opinion does not change the result for the Ex Post
Facto defendants, i.e., John Doe in Doe v. Thompson, No. 110,318; Joseph M. Buser in
No. 105,982; and Promise Delon Redmond in No. 110,280. Likewise, Leonard D.
Charles, whose case No. 105,148 was heard on the same docket as the Ex Post Facto
cases, will be governed by the holding in his case. Plainly stated, all of those litigants
won on appeal, and the KORA amendments cannot be applied to them. But they had to
wait for many months—unnecessarily in my view—to reap the benefits of their
respective wins. I find that to be a denial of justice.
Turning to the merits of this case, I begin by clarifying what is before us to be
decided. The issue presented here was whether the KORA provision requiring Petersen-
Beard to register as a sex offender for the rest of his life was unconstitutionally cruel and
unusual punishment under the Eighth Amendment to the United States Constitution or
unconstitutionally cruel or unusual punishment under § 9 of the Kansas Constitution Bill
of Rights. The Ex Post Facto Clause of article I, § 10 of the United States Constitution
was not in play here. Moreover, the issue is not limited to retroactivity, but rather
29
Petersen-Beard seeks to nullify KORA's lifetime registration provision for all offenders,
both past and future. In other words, the issue in this case is not the same issue presented
in the cases it purports to overrule, notwithstanding the possibility that the analyses might
overlap in some respects.
Further, the question of whether KORA is subject to the cruel and unusual
constraint of the Eighth Amendment to the United States Constitution was not presented
to or decided in the Ex Post Facto cases. Consequently, the majority's assertion that its
determination that KORA is not punitive for Eighth Amendment purposes requires the
reversal of the prior Ex Post Facto cases is dictum. See Law v. Law Company Building
Assocs., 295 Kan. 551, 564, 289 P.3d 1066 (2012) (nobody bound by dictum, not even
the court that issued it). If this case is to provide authority for the proposition that the Ex
Post Facto Clause does not apply to KORA because the act is nonpunitive for both Eighth
Amendment and Ex Post Facto purposes, then a subsequent case that presents that precise
issue can make that determination. Accordingly, the litigants of that subsequent case
could challenge the applicability of the federal circuit courts of appeal cases addressing
the constitutionality of the Sex Offender Registration and Notification Act (SORNA), 42
U.S.C. § 16901 et seq. (2012), upon which the majority in this case relies to conflate the
two types of cases.
Likewise, the Thompson dissent, adopted as the majority's rationale, presents
string cites to federal circuit courts of appeal decisions that analyze the constitutionality
of SORNA or other states' registration acts in light of those federal circuit courts'
mandatory authority from the United States Supreme Court. While perhaps interesting,
those citations are only tangentially connected to the issue before this court. Our task, as
the Kansas Supreme Court, is to rule on the constitutionality of the Kansas registration
act. A federal court's determination that a federal act is constitutional might be used as an
analog to inform a state court's decision on its own laws, but state courts are not bound by
30
any lower federal court decision, even on matters of federal constitutional law. As stated
by a member of the United States Supreme Court:
"The Supremacy Clause demands that state law yield to federal law, but neither federal
supremacy nor any other principle of federal law requires that a state court's
interpretation of federal law give way to a (lower) federal court's interpretation. In our
federal system, a state trial court's interpretation of federal law is no less authoritative
than that of the federal court of appeals in whose circuit the trial court is located."
Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)
(Thomas, J., concurring).
Ordinarily, any analysis of a Kansas legislative act would not begin with a
consideration of merely persuasive federal authority when there are decisions of this
court on point. If there is direct authority in this State, it is binding on the lower State
courts and is entitled to the benefit of the doctrine of stare decisis in this court. In
Thompson, the majority opinion began its analysis by discussing the direct authority of
State v. Myers, 260 Kan. 669, 699, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118(1997), which held that the disclosure provisions of a prior registration law—the Kansas
Sex Offender Registration Act (KSORA)—were punitive in effect, precluding their
retroactive application under the Ex Post Facto Clause. The State in Thompson had
argued that Myers was overruled by the United States Supreme Court's decision in Smith
v. Doe, 538 U.S. 84, 103-04, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). But that was not
accurate, because Smith did not review the Myers decision and did not even consider the
Kansas registration act. Rather, the Smith court held that the Alaska Sex Offender
Registration Act (ASORA) was nonpunitive and not subject to the Ex Post Facto Clause.
Accordingly, Smith is important only as a guide as to how the United States Supreme
Court might view KORA for federal constitutional purposes; it is not direct, mandatory
authority that KORA is nonpunitive.
31
The Thompson dissent obliquely recognized that Smith was not directly binding in
that Ex Post Facto case when it stated that "the real question presented" was: "Are there
convincing reasons to believe the United States Supreme Court would view KORA
differently than it viewed the Alaska law in 2003 when it decided Smith?" Thompson, slip
op. at 49 (Biles, J., concurring in part and dissenting in part). Of course, the majority's
recitation of that issue statement presents an incomplete picture in Peterson-Beard's case
because of the State constitutional provision in play here. The United States Supreme
Court does not have authority to interpret § 9 of the Kansas Constitution Bill of Rights. It
is this court's view of KORA that will decide that issue, even if this court chooses to
adopt a rationale consistent with the Smith majority. The majority must own that
decision; it cannot hide behind federal decisions.
Setting aside for a moment the State constitutional question, the answer to the
question posed by the Thompson dissent is yes, there are convincing reasons to believe
that the United States Supreme Court, in 2016, would view the current version of KORA
differently than it viewed ASORA in 2003, when it decided Smith. The majority in
Thompson attempted to explain those reasons, and I will reiterate some of them here,
albeit I do not intend to clip and paste the entire majority opinion into this dissent. In
addition, I will present some points that were not explicitly made in Thompson.
March 5, 2016, marked 13 years since Smith was decided, and there are new
justices now. Five of the justices involved in the Smith decision, i.e., 55.56% of the
Court, are no longer on the Court. Three of the five justices (60%) joining the majority
opinion in Smith, upon which the Thompson dissent heavily relies, are no longer on the
Court. Surely, the majority here, especially the Thompson dissenters, can appreciate the
impact of a change in Court composition.
32
And not only are the new justices different, but they are younger, which might
well make them more attuned to the digital age. For instance, the youngest member of the
current court was about 21 years old when IBM introduced the PC (personal computer) in
1981, as compared to Chief Justice Rehnquist—a member of the Smith majority—who
was approaching 60 years old when the personal computer revolution began to go
mainstream. 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," 538
U.S. at 99.
In contrast, in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 2491, 189 L. Ed.
2d 430 (2014), a majority of the 2013 Term Supreme Court noted that ordinary citizens
with smartphones can easily access vast amounts of data and that "a cell phone [can be]
used to access data located elsewhere, at the tap of a screen." 573 U.S. at ____, 134 S. Ct.
at 2491. That data includes push notifications of sex offender registries and
indiscriminate sharing of social media. Certainly, if nothing else, a majority of the Court
must now recognize that ubiquitous tweeting and other social media have changed the
landscape of information sharing. Pointedly, Twitter did not exist until 3 years after Smith
was decided. In short, I believe a majority of the current Supreme Court would be more
attuned to the repercussions of Internet dissemination of a sex offender registry.
In this State, Myers displayed a great deal of prescience. It held that despite how
one might try to justify the disclosure provisions of KSORA, the repercussions visited
upon Myers were "great enough . . . to be considered punishment. The unrestricted public
access given to the sex offender registry is excessive and goes beyond that necessary to
promote public safety." 260 Kan. at 699. Myers fretted that "[t]he print or broadcast
media could make it a practice of publishing the list [of sex offenders] as often as they
chose." 260 Kan. at 697. Not only has that circumstance come to pass, but the
33
unnecessary digital distribution of the sex offender registry has gone far beyond that
imagined by the Myers court. In other words, the punitive effect on offenders is even
greater now.
The explanation that the repercussions to which Myers referred arise from the fact
that the offender was convicted in a public proceeding and the records of that conviction
are public information is nonsensical. The whole purpose of the registry is to provide
easy access to information that most people would not know. It is the wide dissemination
of the information that causes the punitive effect. Moreover, the public record of
conviction does not provide the wealth of current information about the offender that he
or she must provide for the sex offender registry and keep updated. Public shaming is
much more effective if the public knows where the offender lives, works, and/or attends
school, as well as the make, model, and license number of the vehicle he or she drives.
Likewise, the attempted rationale that an Internet-based registry is merely the
dissemination of accurate information is unpersuasive. An example of traditional public
shaming referred to in Myers came from Nathaniel Hawthorne's The Scarlet Letter
(Random House 1950) (1850), in which Hester Prynne's punishment for adultery required
her to wear a scarlet "A" upon her dress. One could describe the information being
conveyed by that scarlet letter as "accurate information." Yet, Hawthorne described its
punitive effect as follows: "'There can be no outrage . . . against our common nature,—
whatever be the delinquencies of the individual,—no outrage more flagrant than to forbid
the culprit to hide his face for shame; as it was the essence of this punishment to do.'"
Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1265 (3d Cir. 1996) (quoting
The Scarlet Letter, 63-64). Further, one has to challenge the accuracy of the disseminated
information when it does not differentiate between the extremely low-risk offenders and
the extremely dangerous high-risk offenders. Ultimately, however, the point is that,
34
despite the spin the majority would put on it, today's dissemination of sex offender
registry information does resemble traditional forms of punishment.
In Thompson, we set forth KORA's onerous requirements and differentiated them
from both Smith's ASORA and the dissent's SORNA. It is unfathomable to me that any
rational person could say with a straight face that being forced to comply with those
Draconian terms and conditions of registration for the rest of one's life, under penalty of
going to prison for a new felony, is not an affirmative disability or restraint on the
offender. The majority quibbles over whether the required monetary payments due each
quarterly reporting date is a fine or fee. But Smith described the intent-effects test as
being in two parts, whereby the second step examines the "punitive . . . purpose or
effect." 538 U.S. at 92. I submit that a substantial fee, even if its intent is to cover the
government's cost of the registry, can have a punitive effect on the offender who might be
living hand-to-mouth because of problems getting and maintaining employment.
Moreover, although the majority compares individual provisions of KORA to
corresponding provisions in SORNA, in the Thompson majority we cautioned that
"it is important to keep in mind that it is the entire 'statutory scheme' that must be
examined for its punitive effect. See Smith, 538 U.S. at 92 (effects analysis requires the
appellate court to 'examine . . . the statutory scheme' [emphasis added]); Myers, 260 Kan.
at 681 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed.
2d 742 [1980]) ('ask whether the "statutory scheme was so punitive either in purpose or
effect"' [emphasis added]). For instance, a particular registration requirement may not
have the same punitive effect in a statutory scheme that permits a reduction in registration
time for proven rehabilitation, as it does in a statutory scheme that precludes any
individualized modifications." Thompson, slip op. at 35-36.
35
That distinction is particularly compelling when considering that SORNA allows
an offender the opportunity to reduce his or her registration time, whereas under KORA
there is no opportunity for relief from lifetime registration even for a completely
rehabilitated offender. The punitive effect of being required to register in person quarterly
might be mitigated if the requirement could be terminated when it was no longer
necessary, rather than mandatorily continuing for a lifetime.
Perhaps the most compelling reason for the current Supreme Court to view KORA
differently than the Smith Court viewed ASORA involves the last two factors discussed
by the majority: whether the statutory scheme is rationally connected to a nonpunitive
purpose; and whether the statutory scheme is excessive in relation to the identified
nonpunitive purpose.
Smith analyzed ASORA against the nonpunitive purpose of public safety. The
Court opined that a registration act need not be "'narrowly drawn to accomplish the stated
purpose,'" so long as "the Act's nonpunitive purpose is [not] a 'sham or mere pretext.'
Hendricks, 521 U.S., at 371 (KENNEDY, J., concurring)." Smith, 538 U.S. at 103. Smith
then determined that "Alaska could conclude that a conviction for a sex offense provides
evidence of substantial risk of recidivism." 538 U.S. at 103. The Smith majority then
supported that ruling as follows:
"The risk of recidivism posed by sex offenders is 'frightening and high.' McKune v. Lile,
536 U.S. 24, 34[, 122 S. Ct. 2017, 153 L. Ed. 2d 47] (2002), see also id., at 33 ('When
convicted sex offenders reenter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault' (citing U.S. Dept. of Justice,
Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice,
Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997)))."
538 U.S. at 103.
36
The Court then determined that "[t]he duration of the reporting requirements is not
excessive," because research on child molesters had shown that most of them do not
reoffend within the first several years after release, but rather a reoffense may occur "'as
late as 20 years following release.' National Institute of Justice, R. Prentky, R. Knight, &
A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997)." 538
U.S. at 104. But a recent investigation into the source of Smith's seemingly compelling
statistics calls into question their bona fides.
In "Frightening and High": The Supreme Court's Crucial Mistake About Sex
Crime Statistics, 30 Const. Comment. 495 (2015), the authors Ira and Tara Ellman point
out that Justice Kennedy, the author of the Smith majority, was also the author of a four-
person plurality decision in McKune, which is Smith's cited source for the "frightening
and high" statistic. In McKune, Justice Kennedy wrote that the recidivism rate of
untreated sex offenders "'has been estimated to be as high as 80%,'" which he later
referred to as "'a frightening and high risk of recidivism.'" 30 Const. Comment. at 495-96
(quoting McKune, 536 U.S. at 33-34). The source of the 80% statement—apparently
taken from a reference in an amicus brief filed by the Solicitor General—was cited as the
U.S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner's Guide to Treating the
Incarcerated Male Sex Offender, xiii (1988). Although that Practitioner's Guide was
published by the Justice Department, its "Preface notes that its contents present the views
'of the authors and do[es] not necessarily represent the official position or policies of the
U.S. Department of Justice.''' 30 Const. Comment. at 498 n.11. The Practitioner's Guide
cited a 1986 article in Psychology Today as the source of its claim. That mass-marketed
magazine article—designed for a lay audience—contained the following bare assertion,
without attribution or supporting reference: "'Most untreated sex offenders released from
prison go on to commit more offenses—indeed, as many as 80% do.'" 30 Const.
Comment. at 498 (quoting Freeman-Longo & Wall, Changing a Lifetime of Sexual
Crime, Psychology Today, March 1986, at 64). The author of the magazine article was a
37
counselor who was touting his prison counseling program for sex offenders and whose
"unsupported assertion about the recidivism rate for untreated sex offenders was offered
to contrast with [the counselor's] equally unsupported assertion about the lower
recidivism rate for those who complete [the counselor's] program." 30 Const. Comment.
at 498.
The article did not stop at challenging the factual support for McKune's
"frightening and high" finding. It cited to studies utilizing accepted methodologies to
support the proposition that the purported 80% risk of reoffending was way off base, both
as a stand-alone statistic for sex offenders and as a comparison to other offenders. "One
recent study found that about 3% of felons with no known history of sex offenses commit
one within 4.5 years of their release," whereas "[a]bout 97.5% of the low-risk offenders
were offense-free after five years." 30 Const. Comment. at 502-04. In other words, the
risk of recidivism within 5 years of release from prison for a low-risk sex offender (about
2.5%) is virtually identical to that of a released prisoner who was not convicted of a sex
offense (about 3.0%).
Further, the sample group of the study Smith used to declare that reoffenses do not
occur within the first several years of release, but rather "may occur 'as late as 20 years
following release,'" 538 U.S. at 104, consisted of "rapists and child molesters released
from the Massachusetts Treatment Center for Sexually Dangerous Persons, established in
1959 'for the purpose of evaluating and treating individuals convicted of repetitive and/or
aggressive sexual offenses.'" 30 Const. Comment. at 503 n.29 (citing Prentky, Lee,
Knight, & Cerce, Recidivism Rates Among Child Molesters and Rapists: A
Methodological Analysis, 21 L. & Hum. Behav. 635, 637 [1997]). While the public might
assume that everyone on the sex registry is a forcible rapist or molester of young
children, that is simply not the reality, as evidenced by the facts of this case. But even for
the offenders initially assessed as high-risk, the likelihood of reoffending decreases over
38
time. "Those who haven't re-offended after fifteen years are not high-risk for doing so,
regardless of their offense or their initial risk assessment." 30 Const. Comment. at 503.
The article recognized that human nature is such that, when faced with an
immeasurable fear and strongly held belief, a person will tend to ignore or discount
quantifiable facts. "The label 'sex offender' triggers fear, and disgust as well. Both
responses breed beliefs that do not yield easily to facts." 30 Const. Comment. at 508. Yet,
I must cling to the belief that the persons who have been privileged to serve on our
nation's highest Court will yield to the facts and give a closer look at whether our
statutory scheme is rationally connected to the nonpunitive purpose of public safety and
whether its terms and conditions are excessive in relation to that public safety purpose. If
they do, I submit that an objective analysis will disclose that, in the current version of
KORA, public safety has crossed over the line and is now a "sham or mere pretext" for
imposing additional punishment on the offender.
The Thompson majority pointed out that KORA does not differentiate between the
young immature adult whose indiscretion with a consenting and encouraging teenager
has led to a qualifying conviction and the middle-aged confirmed and incorrigible rapist
and pedophile. We said that mixing in low-or-no-risk offenders with the high-risk
offenders created an overinclusive system where "[t]oo much [was] too little." Thompson,
slip op. at 42. In other words, "[i]f the registry's main purpose is to let us monitor and
warn people about those who committed violent, coercive, or exploitative contact sex
offenses, we dilute its potential usefulness when we fill it up with people who never did
any of those things." 30 Const. Comment. at 504.
We also pointed out in the Thompson majority that KORA's statutory scheme was
also too underinclusive to be rationally related to the nonpunitive purpose of public
safety. Thompson, slip op. at 42-43. For the registry to provide effective public safety, it
39
should notify the public of all persons known to have committed acts considered to be
sex offenses. Yet, only persons convicted of a qualifying crime are required to register.
It is not uncommon for a prosecutor to entice a plea agreement from a defendant
charged with a registration-qualifying sex offense by offering to amend the charge to a
crime that will not require the defendant to register. Certainly, that circumstance dilutes
the State's argument that nullifying KORA in any respect will leave the young children of
this State defenseless—the State effects the same result through a plea agreement. But
more importantly for our purposes, one would think that, if the legislature's true intended
purpose for the registry was public safety, it would have prohibited prosecutors and
courts from circumventing the public's safety through a plea bargain. The legislature has
demonstrated that it knows how to do that for driving under the influence (DUI): "No
plea bargaining agreement shall be entered into nor shall any judge approve a plea
bargaining agreement entered into for the purpose of permitting a person charged with
[DUI] . . . to avoid the mandatory penalties established by this section . . . ." K.S.A. 2015
Supp. 8-1567(m).
Likewise, the registry would not include a person who has committed a qualifying
sex offense but who avoided being convicted of the crime on some legal basis. For
instance, an acquittal could follow the court's suppression of illegally obtained evidence.
While the exclusionary rule will entice proper police conduct in the future, the exclusion
of the sex offender from the registry does not further its purpose of public safety. In
another area deemed to be a civil regulatory statutory scheme, the Sexually Violent
Predator Act, K.S.A. 2015 Supp. 59-29a01 et seq., the legislature made a provision for
the civil commitment of a qualifying person, even where that person was deemed
incompetent to stand trial in his or her criminal case. K.S.A. 2015 Supp. 59-29a07(g). No
similar procedure is in place under KORA, further rendering its public safety purpose
suspect.
40
Given the foregoing, together with the other points made in the Thompson
majority, I have every confidence that the United States Supreme Court would find that
the current "statutory scheme [of KORA] '"is so punitive either in purpose or effect as to
negate [the State's] intention" to deem it "civil."'" See Smith, 538 U.S. at 92. Accordingly,
even under the issue framed by the Thompson dissent and adopted by the majority here,
Petersen-Beard should prevail.
But even though that was the end of the analysis in Thompson, we have more to
discuss in this case. The Kansas Constitution was not involved in Redmond, Buser, or
Thompson, because our state constitution does not contain an ex post facto provision. It is
involved here, however, because, in addition to the Eighth Amendment's prohibition
against cruel and unusual punishment, our own constitution—in § 9 of the Kansas
Constitution Bill of Rights—prohibits "cruel or unusual punishment." The majority
recognizes that this court can independently interpret our own State constitution in a
manner that extends greater protection to our Kansas citizens than the United States
Supreme Court has provided under its interpretation of the United States Constitution.
Then, it dismisses that proposition with the superficial rationale that "we generally have
not done so" and "[w]e can find no . . . reason to depart from our general practice." Slip
op. at 24-26.
I will not prolong this dissent with a discussion of the historical development of
this court's practice of simply adopting federal constitutional interpretation for similar
State constitutional provisions, or my opposition to such a practice. Suffice it to say that
it has not always been that way. See Monnat & Nichols, The Loneliness of the Kansas
Constitution, 34 J. Kan. Ass'n Just. 10, 11 (September 2010) ("In its early opinions, the
Kansas Supreme Court routinely interpreted the Kansas constitution as an independent
document with force of its own.").
41
More importantly, even if we adopt the federal analytical model, we need not
apply it to Kansas' statute in the same manner as the United States Supreme Court applied
it to Alaska's statute. Indeed, after Smith, the Alaska Supreme Court considered the same
statute in the same case with the same defendants, utilizing the same intent-effects test
and Mendoza-Martinez factors to determine the same ex post facto issue, albeit under the
Alaska state constitution. The state court found that its statute, ASORA, violated the Ex
Post Facto Clause of the Alaska state constitution, concluding:
"Because ASORA compels (under threat of conviction) intrusive affirmative
conduct, because this conduct is equivalent to that required by criminal judgments,
because ASORA makes the disclosed information public and requires its broad
dissemination without limitation, because ASORA applies only to those convicted of
crime, and because ASORA neither meaningfully distinguishes between classes of sex
offenses on the basis of risk nor gives offenders any opportunity to demonstrate their lack
of risk, ASORA's effects are punitive. We therefore conclude that the statute violates
Alaska's ex post facto clause." Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).
In the Thompson majority, we found it interesting that the Alaska court had cited
with approval to Myers, even after the Smith decision. See Doe, 189 P.3d at 1017. We
also noted that other states have found their sex offender registration statutes constrained
by their state constitutions. See, e.g., Wallace v. State, 905 N.E.2d 371, 377-78 (Ind.
2009); Doe v. Dept. of Public Safety and Correctional Services, 430 Md. 535, 547-48, 62
A.3d 123 (2013); State v. Williams, 129 Ohio St. 3d 344, 347-49, 952 N.E.2d 1108(2011); Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, ¶¶ 76-79, 305 P.3d 1004(2013).
In short, even if we were not convinced that the United States Supreme Court
would find KORA punitive, we can and should still find that it is so punitive in effect as
42
to negate any pretended civil regulatory purpose under our State constitution. The
citizens of this State are entitled to have their own Supreme Court interpret their own
constitution in a logical, rational manner that is consistent with actual, not made-up, facts.
Consequently, I would find that this matter should proceed to a determination of the cruel
or unusual analysis.
***
BEIER and ROSEN, JJ., join Justice Johnson's dissent as to the result. See Doe v.
Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided); State v. Buser,
304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided); and State v. Redmond, 304
Kan. ___, ___ P.3d ___ (No. 110,280, this day decided); see also State v. Charles, 304
Kan. ___, ___ P.3d ___ (No. 105,148, this day decided) (following Doe, Buser,
Redmond; imposition of registration requirement for violent offender qualifies as
punishment, entitling defendant to relief under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 [2000]).
43