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Kentucky Supreme Court Ruling – Ex Post Facto

November 9, 2009

Kentucky Supreme Court – Case #2007-SC-000347-CL (Opinion – PDF file)
FROM KENTON DISTRICT COURT HONORABLE MARTIN J. SHEEHAN, JUDGE NO. 07-M-00604
OPINION OF THE COURT- CERTIFYING THE LAW
COMMONWEALTH OF KENTUCKY V.MICHAEL BAKER

I . INTRODUCTION
The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17 .545 is an ex post facto punishment, which violates Article 1, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.

While the original residency restrict ion statute applied only to those on probation, parole, or other form of supervised release, the current statute applies to all registrants regardless of probation or parole status . In addition, KRS 17 .545 adds publicly owned playgrounds to the list of prohibited areas, and measures the distance from the property line as opposed to the wall of a building. The statute also places the burden on the registrant to determine whether he is in compliance . Violation of the residency restriction is a Class A misdemeanor for the first offense, and ;a Class D felony for subsequent offenses.

III. ANALYSIS
The United States Constitution and the Kentucky Constitution, through their respective ex post facto clauses, prohibit the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law’s enactment. The Ex Post. Facto Clause of the United States Constitution “forbids . . . the States to enact any law `which imposes a punishment for an act which was not punishable at, the time it, was committed; or imposes additional punishment to that. then prescribed .”‘ Weaver v. Graham , 450 U.S. 24, 28 (1981) (quoting Cummins v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)).

IV. CONCLUSION
Although the General Assembly did not intend KRS 17 .545 to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them. civil. Therefore, the statute may not constitutionally be applied to those like Respondent, like those who committed their- crimes prior to July 12, 2006, the effective date of the statute. To do so violates the ex post facto clauses of the United States and Kentucky Constitutions . The law is so certified.

If link to Opinion fails, go to http://apps.courts.ky.gov/supreme/sc_opinions.shtm and search Case #2007-SC-000347

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