The Kentucky Supreme Court in Kentucky v. Baker, (opinion available here) has found the retroactive application of the sex offender residency restriction to be unconstitutional. From the Lexington Herald-Leader:
A state law limiting where registered sex offenders may live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented, the Kentucky Supreme Court ruled Thursday.
The law prohibits sex offenders from living within 1,000 feet of playgrounds, day-care centers and schools, and the law changed how the distance is measured.
The court, in a 5-2 decision, said the law is punitive and violates the ex post facto clause, or retroactive law, in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes. The restrictions will still apply to anyone convicted after July 12, 2006.
As of Thursday morning, there were 280 sex offenders in Fayette County, and six were not in compliance, according to the Fayette County Sheriff's Office. Sheriff Kathy Witt said some addresses are visited every day. Those who are incompliant are usually not living at the addresses listed for the individuals.
H/T: Sentencing Law & Policy.
On Monday, the U.S. Supreme Court denied a request by the Roman Catholic Diocese of Bridgeport to delay the court-ordered release of thousands of legal documents from priest sex-abuse lawsuits. The New York Times has more. From the WSJ.com Law Blog:
In a one-line opinion, the court on Monday rejected a request by the Roman Catholic Diocese of Bridgeport to delay the release of thousands of legal documents from lawsuits filed against priests accused of child sex abuse.
The diocese still has another request before the court, asking the justices to hear arguments that release of the records would violate the First Amendment rights accorded to religious groups. But, writes the NYT, such a hearing appears unlikely after the court’s ruling on Monday.
A spokesman for the Bridgeport Diocese said in a statement: “We are disappointed that the U.S. Supreme Court decided not to extend the stay. For more than a decade, the Catholic Church in Bridgeport has addressed the issue of clergy sexual abuse compassionately and comprehensively. For now, however, the serious threat to the First Amendment rights of all churches and the rightful privacy of all litigants remain in jeopardy because of the decision of the Connecticut Supreme Court. This, indeed, is regrettable.”
The NYT story explains that the records were obtained by plaintiffs in 23 lawsuits filed against the diocese and seven of its priests in the 1990s. They were sealed in 2001 after the diocese reached settlements with the plaintiffs, former altar boys and youth group members who said they were molested by priests in the 1960s, ’70s and early ’80s.
In 2002, The NYT filed suit, seeking the release of the records. In June, the Connecticut Supreme Court upheld lower court rulings, ordering the documents released.
This week, the U.S. Supreme Court granted certiorari in Carr v. United States (previously blogged about here and here), which raises several constitutional challenges to the Sex Offender Registration and Notification Act (SORNA). You may view the full order list here. From SCOTUSblog:
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
In 2003, Justice Scalia wrote a dissent in Lawrence v. Texas where he predicted that the decision would be used to strike down state laws against (amongst other things) bestiality. Recently, a helpful reader directed us to a new Kansas Appellate decision assuaging Scalia's fears by upholding a state law criminalizing bestiality in State v. Coman, 214 P.3d 1198 (Kan. App. 2009). In Coman, the defendant appealed his conviction for having sex with his girlfriend's Rottweiler, arguing that (1) the criminal sodomy statute is unconstitutional and (2) he should not be required to register as a sex offender. The opinion is available here. New York Law School Professor Arthur S. Leonard has more coverage of this story over at his blog. From the opinion:
Joshua B. Coman appeals his conviction for criminal sodomy under K.S.A. 21-3505(a)(1) and the district court's order that he register as a sex offender, arguing that his conviction does not require registration under the Kansas Offender Registration Act (KORA) and that K.S.A. 21-3505(a)(1) is unconstitutional in criminalizing sex between a human and an animal. We reject Coman's arguments and affirm his conviction and registration order.
Upon entering her garage to access the freezer, the complaining witness reported seeing her ex-boyfriend Coman lying on the floor of the garage with his pants and underwear down around his ankles, his shirt pulled up, and her female Rottweiler lying beside him. When she turned on the light, Coman moved his hips away from the dog and quickly pulled his pants up. Coman then said he loved the dog, Yodi, and he told the witness, “I don't expect you to understand, but I had to see her one more time.”
When police arrived, a pat-down revealed Coman's penis remained erect and he had a bottle of personal lubricant in his left front pocket. Coman denied having intercourse with the dog, but he admitted that he tongue-kissed her and digitally penetrated her. A search of Coman's cell phone revealed several photos of dogs and one video clip of a man engaging in sexual intercourse with a canine.
Coman was charged with one count of criminal sodomy under K.S.A. 21-3505(a)(1), with sexual motivation requiring registration under K.S.A. 22-4902(c)(14). He pled guilty to this offense and was sentenced to 6 months in the county jail, to run consecutive to a Reno County sentence for similar conduct. He was also ordered to receive psychiatric treatment and to register as a sex offender under KORA.
Of course, a cynic might think that Justice Scalia never actually feared that bestiality laws were in jeopardy after the opinion in Lawrence was issued. And others of us are still wondering what laws against masturbation to which Justice Scalia was referring.
SCOTUSblog's recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here. From the "reasons for granting the petition" section:
The Court should settle whether Congress meant SORNA to apply retroactively to persons whose underlying offense and interstate travel both predated enactment of the statute. The Seventh Circuit’s holding on this point conflicts with decisions of other courts of appeals (as the court below acknowledged) and of numerous district courts. And that holding is wrong: It departs from the plain statutory text; misstates the congressional purpose; and disregards the presumptions against retroactivity, and in favor of lenity and the avoidance of constitutional questions, that have been consistently applied by this Court. Review of the decision below accordingly is warranted.
Because the Seventh Circuit decided the question of statutory interpretation as it did, it was required to resolve the important constitutional question whether retroactive application of SORNA’s criminal penalties violates the Ex Post Fact Clause. Its decision on that question also warrants review. The district courts are deeply divided on the question--although the government has managed to suppress creation of a conflict in the courts of appeals by failing to appeal in those cases where it has been unsuccessful. Particularly in light of substantial flaws in the Seventh Circuit’s constitutional analysis, this Court’s guidance on the issue is essential.
While I do think that the USSC should chime in as to SORNA's constitutionality, I'm not sure the Justices will be interested in hearing these particular issues. The Ex Post Facto issue related to travel before the enactment of the AWA will disappear over time and only affects a small number of defendants. Still, the petition bears watching.
Professor Jonathan Adler over at the Volokh Conspiracy has a post discussing the Sixth Circuit's decision in United States v. Wynn, where a divided panel found that a defendant's guilty plea to “sexual battery” under Ohio law was a not “crime of violence” for career offender purposes. You may read the Sixth Circuit's decision here. From a post entitled Is “Sexual Battery” A “Crime of Violence”?:
The Virginia Supreme Court has ruled that school districts have final say in whether sex offenders are allowed on public school property. You may read the decision here. From the Charlottesville Daily Progress:
H/T: Sentencing Law & Policy.
The Seventh Circuit, via Chief Judge Easterbrook, has issued an interesting opinion in Annex Books v. City of Indianapolis, a challenge to an Indianapolis ordinance that restricts when "adult entertainment business" may operate. The Appellate Court ruled that the city needs some compelling purpose to curtail the adult business. You may read the opinion here. You may also listen to the oral argument before the three judge panel, held five years ago today, here. From the Indianapolis Star:
Sex offender banishment seems to be catching up with the information age. A Georgia sex offender has brought a constitutional challenge in federal court against a new state law that forces sex offenders to register their passwords, screen names, and e-mail addresses with law enforcement officials. Last year, a federal judge in Utah struck down a similar requirement. Recently, that same judge vacated her decision after the Utah legislature amended the statute to address the judge's concerns. From the Atlanta Journal-Constitution: