Over the past two weeks, the Kansas Supreme Court has issued a slew of opinions addressing challenges to the Kansas Offender Registration Act (“KORA”) under the Ex Post Facto Clause of the United States Constitution—concluding with an apparent invitation to prove that the KORA has special punitive effects on non-sex offenders.

The Ex Post Facto Clause prohibits, among other things, retroactively increasing the punishment for a crime already committed. As legislatures have retroactively applied increasingly more arduous requirements on registered sex offenders, courts nationwide have been asked to decide whether offender registration is punishment or merely civil regulation. For years, registrants have asserted that registration schemes are punitive, but litigation on the issue increased after many states amended their registration requirements to comply with the Adam Walsh Act.

When the Kansas Legislature brought the KORA to “substantial compliance” with the Adam Walsh Act through amendments effective in 2011, Kansas courts saw an increase in litigation. On April 22, 2016, a sharply divided Kansas Supreme Court published two contrary opinions regarding whether the modern KORA might properly be deemed punitive. Although a majority of the Court ruled the KORA punitive in Doe v. Thompson, 304 Kan. 291 (2016), that decision was held from publication for the apparent purpose of immediately overruling it and preventing its application to other registrants. On the same day the Kansas Supreme Court published Doe v. Thompson, it also published State v. Petersen-Beard, 304 Kan. 192 (2016), which overruled Thompson’s holding that the 2011 version of the KORA imposed punishment. (This curious procedure was facilitated due to the fact that Doe v. Thompson was decided while a vacancy on the Kansas Supreme Court was occupied by an assigned senior judge, but not published until after the vacancy had been permanently filled by Justice Caleb Stegall. Justice Stegall, who authored the majority opinion in State v. Petersen-Beard, swung the court’s vote in favor of finding the KORA to be nonpunitive. Justice Lee Johnson’s dissent in State v. Petersen-Beard explains the background behind this “unusual circumstance.”)

As Petersen-Beard raised the KORA issue in an Eighth Amendment context (asserting that lifetime registration constituted cruel and unusual punishment), challenges under the Ex Post Facto Clause continued in Kansas courts. Then, on August 4, 2017, the Kansas Supreme Court published its decision in State v. Reed, Case No. 110,277, explicitly extending Petersen-Beard to apply to registered sex offenders’ KORA challenges brought under the Ex Post Facto Clause.

But what about the other classes required to register pursuant to KORA? Unlike many other states, and unlike the registration scheme the United States Supreme Court upheld against ex post facto scrutiny in Smith v. Doe, 538 U.S. 84 (2003), Kansas requires registration by criminal offenders who have not been convicted of a sex offense. Specifically, KORA requires that “drug offenders” and “violent offenders” (individuals convicted of the crimes enumerated at K.S.A. 22-4902(f) and K.S.A. 22-4902(e)) comply with essentially the same registration requirements as “sex offenders” (defined at K.S.A. 22-4902(b)).

On August 4, 2017, in State v. Meredith, Case No. 110,520, the Kansas Supreme Court ruled that “the legislature intended KORA registration for all classes of offenders to be civil and nonpunitive.” Slip. Op. at *8. Accordingly, the court would require “the clearest proof” of punitive effect to override that legislative intent and find a violation of the Ex Post Facto Clause in retroactive application of the KORA to non-sex offenders. Id. at *9. The court refused to make that finding because it determined that Meredith did materially distinguish between drug offenders and sex offenders. Id. In closing, the court stated, “Our holding today does not foreclose future ex post facto challenges to KORA for non-sex offenders. But we emphasize that non-sex offenders who hope to satisfy the Mendoza-Martinez factors must produce a record that distinguishes—by the ‘clearest proof’—the effects of the KORA on those classes of offenders from the Act’s effects on sex offenders as a class.” Id. at 10.

In several opinions issued August 10, 2017, the Kansas Supreme Court cited Meredith in ruling against Ex Post Facto Clause challenges brought by drug offenders and violent offenders alike, noting each time that the record below was insufficient to show a punitive effect by “the clearest proof.” See State v. Wingo, Case No. 108,275; State v. Donaldson, Case No. 109,671; State v. Hirschberg, Case No. 109,689; State v. Huey, Case No. 109,690; State v. Burdick, Case No. 110,472; State v. Hill, Case No. 111,226. The Kansas Supreme Court appears to have offered an invitation, though past opinions demonstrate that challengers will face a steep uphill battle.

In the meantime, the criminal defense attorneys at Joseph, Hollander & Craft have been challenging the KORA through other means. Cases charging KORA violations warrant careful consideration of strict liability and the often vague requirements offenders are alleged to have violated. If you have been charged with a KORA violation, contact us today. With attorneys in Wichita (316-262- 939), Topeka (785-234- 3272), Lawrence (785-856- 0143), and Overland Park (913-948- 9490), we serve clients from the Oklahoma border to the Kansas City area.

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