Posted by: Patricia Salkin | November 9, 2009

Kentucky Supreme Court strikes down retroactive application of sex offender residency restrictions

The Supreme Court of Kentucky held that the retroactive application of sex offender residency restrictions (a 2006 law that limited sex offenders from residing within 1000 feet of a school, a daycare center or a playground) violates the ex post facto clauses in the federal and state constitutions. The Court explained that Under Smith v. Doe, 538 U.S. 84 (2003), a law must be punitive (rather than civil) to constitute an unconstitutional ex post facto law. While the court found that the legislature intended the law to “be a civil, nonpunitive, regulatory scheme[,]” it looked to five factors to determine whether the law “is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” The five factors—whether the law has historically been regarded as punishment; whether it promotes the traditional aims of punishment; whether it imposes an affirmative disability or restraint; whether it has a rational connection to a nonpunitive purpose; and whether it is excessive with respect to a nonpunitive purpose—all weighed in favor of concluding that the restrictions were punitive in effect.

Kentucky v. Baker, No. 2007-SC-000347-CI (KY 10/1/2009).
The opinion can be accessed at: http://opinions.kycourts.net/sc/2007-SC-000347-CL.pdf

According to this article, the Kentucky Attorney General is asking the U.S. Supreme Court to hear this case, and has asked the Kentucky Supreme Court to delay implementing the ruling until the Supreme Court decides whether to hear the case.

Read what the Sentencing Law and Policy Blog says here

For an article on residency restrictions you can download a recent piece by clicking on download and then SSRN here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395347

Special thanks to the ABA State & Local Government E-News for bringing this case to my attention.


Responses

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