Request By:
Graham Gray
Legal Counsel
Criminal Identification & Records Branch
Kentucky State Police
Opinion
Opinion By: JACK CONWAY,ATTORNEY GENERAL;Shan J. Dutta,Assistant Attorney General
Subject: May the school property and day care access restrictions in KRS 17.545(2) constitutionally be applied to sex offender registrants that committed their offenses prior to July 12, 2006?
Opinion of the Attorney General
The laws in Kentucky governing the registration of those guilty of sexual offenses were created following the terrible tragedy suffered by seven year old Megan Kanka when she was found brutally raped and murdered by a man previously convicted of sex offenses. Megan's death spawned laws throughout the nation, referred to as "Megan's Laws," which required sex offenders to register with the state they resided in so that surrounding citizens would be aware of their presence. Kentucky, along with every other state in the county, has a version of Megan's Law. Of relevance in this opinion is KRS 17.545(2), which states:
No registrant, as defined in KRS 17.500, nor any person residing outside of Kentucky who would be required to register under KRS 17.510 if the person resided in Kentucky, shall be on the clearly defined grounds of a high school, middle school, elementary school, preschool, or licensed day care facility, except with the advance written permission of the school principal, the school board, or the day dare director that has been given after full disclosure of the person's status as a registrant or sex offender from another state and all registrant information as required in KRS 17.500.
Legal counsel for the Kentucky State Police Criminal Identifications & Records Branch has requested an opinion from this office on whether the school property access restriction in KRS 17.545(2) may be applied to sex offender registrants that committed their registrable offenses prior to July 12, 2006. As discussed below, the enforcement of KRS 17.545(2) against sex offenders who performed the relevant criminal acts prior to the abovementioned statute's enactment necessitates an ex post facto analysis but ultimately does not violate the rights of those governed under this law.
In 2009, the Supreme Court of Kentucky addressed the residency prohibition in KRS 17.545(1), which set certain parameters on where sex offenders could reside. The Court held that retroactively applying a residency restriction on sex offenders who committed their crimes before the effective date of the statute in question was punitive in effect and therefore violated the ex post facto laws.Comm. v. Baker, 295 S.W.3d 437 (Ky. 2009). However, the Court in Baker analyzed the statute as it was in effect on July 12, 2006. The section relevant to this opinion was amended to include language pertaining to obtaining permission before stepping onto school or day care grounds on June 25, 2009 and not addressed by the Court in Baker .
The United States Constitution and Kentucky Constitution each contain ex post facto clauses 1 that prohibit the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law's enactment. Comm. v. Baker, 295 S.W.3d at 442 (Ky. 2009). The United States Constitution forbids the States from enacting any law that imposes punishment for an act that was not punishable when committed or imposes punishment in addition to the amount available at the time of the crime. Id . Therefore, to implicate the ex post facto clauses, a law must apply to events occurring before its enactment, disadvantage the offender affected by it and be punitive. Id . These parameters resulted in a two-part test that first requires a determination of whether the legislature intended to establish a civil, nonpunitive, regulatory scheme or whether the legislature intended to impose punishment. Id . If the legislature's intent was to impose punishment, the analysis ends and the law violates the ex post facto clauses. Id . However, if the legislature's intent was to institute a civil, nonpunitive, regulatory scheme, the second step of the test is triggered and it must be determined whether the statutory scheme is so punitive in either purpose or effect that it contravenes the State's intention to deem it civil. Id .
Regarding KRS 17.545(2), it must first be determined if the statute was intended to impose punishment. Based on the statutory language and the obvious purpose of the law, it is clear that there was no intention to punish convicted sex offenders any further by enacting the day care and school grounds exclusion. Unfortunately, schools and day cares have been a common target of attack throughout the county. Attempting to protect these facilities by simply directing a convicted sex offender to obtain permission prior to admittance onto the specific premises is directly related to nonpunitive goals of protecting the safety of the public. Therefore, KRS 17.545(2) was not intended to impose punishment on sex offenders and the determination that must now be made shifts to whether the statute is so punitive in purpose or effect that it negates the State's goal of deeming the enactment civil.
In Baker , the Court focused on five factors when making the determination of whether the regulatory scheme was punitive in effect: (1) has this type of act been regarded in our history and traditions as punishment, (2) does this act promote the traditional aims of punishment, (3) is there an affirmative imposition of disability or restraint, (4) is there a rational connection to nonpunitive purposes, or (5) is the scheme excessive with respect to the nonpunitive purpose. Comm. v. Baker, 295 S.W.3d at 443 (Ky. 2009).
Historically, the protection of children in this country has always been a top priority. As such, procedures utilized to help keep kids at school or day care safe have been strongly supported, and we see no indicia of abatement in this historical trend. Therefore, a statutory provision intended to help administrators, teachers, and care providers keep track of who is on campus is not punitive in nature and would not be regarded as such based on our history and traditions of punishment. This system simply furthers the goal of protecting children and those who care for them. Furthermore, establishing a routine of obtaining permission prior to entering the relevant premises does not promote any traditional aim of punishment. The statute does not contain an absolute bar to ever being present on the grounds of a day care or school. The statute simply requires those in charge be given notice of a sex offender's intention to enter the premises and the chance to review the situation. This procedure firmly supports the State's interest in protecting the public and is not a promotion of traditional punishment.
The next inquiry regarding KRS 17.545(2) is whether it imposes an affirmative disability or restraint. In contrast to having to move from a home bought before a crime or restricting the locations in which one may be able to live, the obligation to request permission to enter onto the premises of a school or day care is minimal. The statute does not require advanced notice prior to every visit to a school or day care; it simply mandates a convicted sex offender to inform the administrators or directors of an applicable facility of their registration status prior to an initial visit and be granted permission. Also, the question of whether the statute is rationally connected to a nonpunitive purpose must be answered in favor of retroactive enforcement. As mentioned above, there is a legitimate interest in protecting children and those working with them at schools and day care facilities. The obligation to obtain permission before entering the relevant premises is rationally connected to a nonpunitive purpose as it keeps employees aware of a convicted sex offender's presence, helps ensure the safety of children, and is minimally taxing on the offender. Furthermore, the process set forth in KRS 17.545(2) does not restrict a sex offender from performing any vital functions nor cause them any extreme inconvenience. "A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance." Smith v. Doe, 538 U.S. 84, 103 (2003).
Based on the above discussion, the Kentucky Office of the Attorney General is of the opinion that KRS 17.545(2) may constitutionally be applied to sex offender registrants that committed their registrable offenses prior to the enactment of the statute. The law was not meant to be punitive, nor is the enactment so punitive in purpose or effect that it negates the State's intentions of deeming it civil. Therefore, the Kentucky Office of the Attorney takes no issue with the retroactive enforcement of KRS 17.545(2).
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