TOPEKA, Kansas — The attorney for a convicted child molester on Thursday challenged the constitutionality of the Kansas offender registry before the state's highest court, arguing social media has made the Internet the new town square for public shaming.
Attorney Christopher Joseph urged the Kansas Supreme Court to uphold a decision by Shawnee County Judge Larry Hendricks that removed the name of a Lenexa man from the registry. The judge ruled the retroactive application of the Kansas Offender Registration Act when the Legislature amended the law in 2011 violates the U.S. Constitution's ban on "ex post facto," or after-the-fact, punishments.
Attorney General Derek Schmidt, who watched the proceedings from the gallery, said afterward that if the state ultimately loses the case, Kansas would not have an effective offender registry.
"The stakes in this case are very high," Schmidt said. "Our goal is to have an effective registry that conveys to Kansans the information that they can then use."
The case hinges on whether the Kansas justices determine that the state's amended registry law is an unconstitutional retroactive punishment or a permissible tool to protect public safety. The U.S. Supreme Court ruled in 2003 that Alaska's sex offender registration law was not punishment and its retroactive application therefore did not violate the Constitution.
But Joseph urged the appeal court justices to take a "fresh look" because the world has changed dramatically with the rise of the Internet, social media and smartphones that have created a virtual town square for public shaming since that U.S. Supreme Court decision was handed down.
"Today's town square is the Internet," he said.
Noting the U.S. Supreme Court previously ruled registration requirements constitutional, Justice Lee Johnson said the Kansas justices would have to conclude that the nation's highest court might now rule differently because the world has changed.
"We have to be able to say that they would acknowledge that," Johnson said.
"There's too much notification?" Justice Eric Rosen asked.
Joseph replied that with social media, "it's right there, in your face."
But Rosen also asked Assistant Attorney General Christopher Grunewald whether the length of the registration requirement is a factor in determining that the registry law is non-punitive and therefore constitutional.
"There's a significant difference between 10 years and 25 years," Rosen told him.
Grunewald contended length isn't a factor, but faced skepticism from the court when he asserted there is no reason to question the law's public safety purpose.
Johnson then retorted, "Well, I'm going to question it."
When Johnson pressed him as to whether his conclusion that registration improves public safety is based on hard evidence, Grunewald replied, "It's common sense."
While the Shawnee County judge's initial ruling applied only to the 51-year-old Lenexa man who sued the Kansas Bureau of Investigation and the Johnson County Sheriff's Office, any Supreme Court ruling now would affect others on the registry whose reporting requirement was retroactively lengthened by a 2011 amendment to the state's law. If the court concludes the effect of today's law is punitive, then the registration law at the time of a person's conviction would determine their registration requirements and would extend to everyone subject to KORA, Joseph said Wednesday.
Kansas law requires people convicted of certain sex, drug and violent crimes to register with law enforcement between 15 years and life, depending on the severity of the crime. As of August, Kansas has 13,582 people listed on the registry: 8,086 for sex crimes; 2,854 for drug offenses; and 2,642 for violent crimes.
The man at the center of the lawsuit pleaded guilty in 2003 to having indecent liberties with a child/touching in Johnson County. At the time, he was required to remain on the registry for 10 years. But the Legislature's change to the law in 2011 extended the length of time such offenders must be registered to 25 years. The state then told him that the law applied retroactively — meaning he had to remain registered until 2028.
Court documents identify him only as "John Doe," and one of the issues on appeal is whether the judge erred in allowing him to proceed pseudonymously in the litigation.
Hegeman reported from Wichita.
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