KY Ruling on Sex Offender Law Should Stand

November 8, 2009

leagle.com : Editorial – KY Ruling on Sex Offender Law Should Stand.

Last month, the Kentucky Supreme Court struck down as unconstitutional an overzealous attempt by the Kentucky General Assembly to restrict where convicted sex offenders can live.

The court made the right decision, and Kentucky Attorney General Jack Conway should have let the issue rest. Instead, Conway is pushing on to the U.S. Supreme Court to try to uphold a law he should know is unjust.

The 2006 law prohibited convicted sex offenders from living within 1,000 feet of a school, playground or day care facility. The law applied to all convicted sex offenders, including those convicted before the law was passed, and regardless of whether a child was the victim of their offense.

That’s where lawmakers ran into trouble — by retroactively applying the restrictions to those who had been convicted prior to the law’s passage in violation of the Constitution, according to the court.

The Kentucky Supreme Court’s ruling should have been the end of the matter. But instead, the state Department of Corrections instructed its probation and parole officers to ignore the ruling, and Conway is pursuing another opinion in Washington. On Thursday, Conway asked the U.S. Supreme Court to allow the residency restrictions to remain in effect while it determines whether to hear the case.

In announcing his intention to take the issue to the U.S. Supreme Court, Conway said he was driven by “serious concerns” about how the state court’s ruling would affect public safety and that he was acting “in the interest of protecting Kentucky families.”

The issue here is not whether imposing residency restrictions on convicted sex offenders is constitutional. The debate isn’t over whether these restrictions are effective, though there are legitimate questions about whether dictating where a sex offender can live lessens the chance of re-offending. What’s at issue here is the legal question of whether it is right and just to impose a punishment retroactively.

Imagine serving time for a committing a crime and being released from prison only to be slapped with additional penalties and punishments years later at the whimsy of legislators. The trend in recent years has been to increase prison sentences for certain felony crimes — should those convicted of those crimes years or even decades ago be ordered to return to prison and serve additional time even though the original sentence was completed?

Heading in this direction would make a criminal’s punishment only be as final as the latest session of the legislature since lawmakers could always come back and punish an offender further.

And it doesn’t take the most skeptical person to note that Conway is also campaigning to be Kentucky’s next U.S. senator, and appearing tough on crime never hurts at the polls.

But in pursuing his appeal to the U.S. Supreme Court, Conway seeks to establish a dangerous precedent that would undermine the standard of fairness in the criminal justice system. As the Kentucky Supreme Court noted in its ruling, “the residency restrictions are so punitive in effect as to negate any intention to deem them civil.”

That’s not justice, and the Constitution recognizes that. Attorney General Conway should, too.

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