Petition for Writ of Certiorari — N. R., Petitioner v. Kansas
Supreme Court briefDec 16, 2021
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No. ______________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________________________
N.R.,
Petitioner,
v.
STATE OF KANSAS,
Respondent.
__________________________________________________
On Petition for Writ of Certiorari
to the Kansas Supreme Court
__________________________________________________
Petition for Writ of Certiorari
__________________________________________________
JENNIFER C. ROTH
Counsel of Record
RANDALL L. HODGKINSON
KANSAS APPELLATE DEFENDER OFFICE
700 S.W. Jackson Street, Suite 900
Topeka, Kansas 66603
(785) 296-5484
jroth@sbids.org
Counsel for Petitioner
__________________________________________________
QUESTIONS PRESENTED
1. Do the Ex Post Facto Clause and Eighth Amendment permit a state to
retroactively impose registration obligations on a person who was adjudicated of a
sex offense when he was a child?
2. Does the “intent-effects” test in Smith v. Doe, 538 U.S. 84 (2003), apply to a
person who was adjudicated of a sex offense when he was a child?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………………………………………………..i
TABLE OF AUTHORITIES……………………………………………………………….....v
PETITION FOR WRIT OF CERTIORARI…………………………………………………1
OPINIONS BELOW…………………………………………………………………………...1
JURISDICTION………………………………………………………………………………..1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED………………...1
STATEMENT OF THE CASE………………………………………………………….........2
A.
The Kansas Offender Registration Act……………………………………..4
B.
Proceedings in the district courts……………………………………...........8
C.
Proceedings in the Kansas appellate courts……………………………...10
REASONS FOR GRANTING THE PETITION………………………………………….12
A.
Lower courts are divided over whether
retroactive application of modern-day registration
requirements violates the Ex Post Facto Clause
or the Eighth Amendment…………………………………………………..12
B.
Only this Court can provide guidance to lower
courts on what test to use to evaluate issues involving
retroactive application of registration requirements
for people adjudicated as juveniles………………………………………..13
C.
The decision below is wrong………………………………………………..16
D.
Now is the time for this Court to consider this important
and recurring issue, and this case is an ideal vehicle to do so………..23
CONCLUSION……………………………………………………………………………….24
iii
APPENDICES
APPENDIX A:
Slip Opinion, State v. N.R., No. 119,796 (Kan. September 17, 2021)…………1a
APPENDIX B:
Slip Opinion, State v. N.R., No. 119,796 (Kan. App. September 27, 2019)…40a
APPENDIX C:
Kansas offender registration act, Kan. Stat. Ann. § 22-4901 et seq………...57a
APPENDIX D:
Slip Opinion, Doe v. Thompson, No. 110,318 (Kan. April 22, 2016)…………82a
APPENDIX E:
Slip Opinion, State v. Petersen-Beard, No. 108,061 (Kan. April 22, 2016)..150a
iv
TABLE OF AUTHORITIES
Cases
Doe v. Dep’t of Pub. Safety & Corr. Servs., 62 A.3d 123 (Md. 2013) ................ 13
Doe v. State, 111 A.3d 1077 (N.H. 2015) ........................................................... 13
Doe v. State, 189 P.3d 999 (Alaska 2008) ......................................................... 13
Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016)………………………..7, 17
In Int. of T.H., 913 N.W.2d 578 (Iowa 2018) .................................................... 13
In re C.P., 967 N.E.2d 729 (Ohio 2012) ............................................................. 13
In re J.B., 107 A.3d 1 (Pa. 2014) ....................................................................... 13
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .......................................... 7
Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020) .......................................... 22
In Int. of T.B., 489 P.3d 752 (Colo. 2021) .......................................................... 13
People v. Betts, __ N.W. 2d __, 2021 WL 3161828 (Mich. 2021) ...................... 13
Smith v. Doe, 538 U.S. 84 (2003) ........................................................... i, passim
Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013) .................... 13
In Int. of C.K., 182 A.3d 917 (N.J. 2018)........................................................... 13
State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016)…………………………………7
State v. Dinkel, 495 P.3d 402 (Kan. 2021) ........................................................ 22
State v. Letalien, 985 A.2d 4 (Me. 2009) ........................................................... 13
State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016)…………3, passim
State v. Redmond, 304 Kan. 283, 371 P.3d 900 (2016) ................................ 7, 12
State v. Reed, 306 Kan. 899, 399 P.3d 865 (2017)…………………………………7
State v. Shaffer, No. 119,738, 2021 WL 5406136 (Kan. 2021) ......................... 22
State v. Williams, 952 N.E.2d 1108 (Ohio 2011) .............................................. 13
U.S. v. Elkins, 683 F.3d 1039, 1041 (9th Cir. 2012) .......................................... 14
U.S. v. Juvenile Male, 564 U.S. 932 (2011) .............................................. 3, 7, 15
U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ......................................... 13
United States v. Under Seal, 709 F.3d 257 (4th Cir. 2013) .............................. 13
Wallace v. State, 905 N.E.2d 371 (Ind. 2009) ................................................... 13
Constitution, Statutes, and Session Laws
U.S. Const. art. I, § 9, cl. 3…………………………………………………………….i, v
U.S. Const. amend. VIII ........................................................................ i, v, 4, 7, 11
28 U.S.C. § 1257(a) ................................................................................................. 1
34 U.S.C. § 20901 ............................................................................................... 3, 6
34 U.S.C. § 20915(b) ....................................................................................... 22, 23
42 U.S.C. §16901………………………………………………………………………….6
Alaska Stat. Ann. § 12.63.100(3) (2003) ................................................................ 3
Alaska Stat. Ann. § 12.63.100(3) (West 2019) ....................................................... 3
Colo. Rev. Stat. § 16-22-103(4) ............................................................................. 22
Colo. Rev. Stat. § 16-22-113……………………………………………………………22
Kan. Stat. Ann. § 21-5203 .................................................................................... 22
v
Kan. Stat. Ann. § 21-5301(c)(1)…………………………………………………………9
Kan. Stat. Ann. § 21-5405(b)(1)(A)……………………………………………………..9
Kan. Stat. Ann. § 21-5413(g)(2)(C)……………………………………………………..9
Kan. Stat. Ann. § 21-5420(c)(2)………………………………………………………...9
Kan. Stat. Ann. § 21-6804(m) .............................................................................. 21
Kan. Stat. Ann. § 21-6809 .................................................................................... 21
Kan. Stat. Ann. § 22-4901 ...................................................................................... 2
Kan. Stat. Ann. § 22-4902 ...................................................................................... 2
Kan. Stat. Ann. § 22-4902(b) and (c)(1) ................................................................. 8
Kan. Stat. Ann. § 22-4903 ................................................................................ 6, 21
Kan. Stat. Ann. § 22-4904 .................................................................................... 20
Kan. Stat. Ann. § 22-4906 ...................................................................................... 6
Kan. Stat. Ann. § 22-4906 (2010)........................................................................... 6
Kan. Stat. Ann. § 22-4906(h) (2011). ..................................................................... 8
Kan. Stat. Ann. § 22-4906(h)(1) (2006) ............................................................ 8, 20
Kan. Stat. Ann. § 22-4908 ................................................................................ 6, 22
1993 Kan. Sess. Laws, ch. 253 ............................................................................... 4
1994 Kan. Sess. Laws, ch. 107. .............................................................................. 5
1997 Kan. Sess. Laws, ch. 181…………………………………………………………..5
1999 Kan. Sess. Laws, ch. 164 ............................................................................... 6
2001 Kan. Sess. Laws, ch. 208 ............................................................................... 6
2002 Kan. Sess. Laws, ch. 55 ................................................................................. 5
2006 Kan. Sess. Laws, ch. 212 ............................................................................. 21
2006 Kan. Sess. Laws, ch. 214 ............................................................................... 5
2007 Kan. Sess. Laws, ch. 183. .............................................................................. 5
2011 Kan. Sess. Laws, ch. 95 ....................................................................... 6, 8, 20
2013 Kan. Sess. Laws, ch. 127…………………………………………………………21
Other Authorities
Association for the Treatment of Sexual Abusers, Registration and
Community Notification of Children and Adolescents Adjudicated of a
Sexual Crime: Recommendations for Evidence-Based Reform (2020) ....... 16
H.B. 2322 (2011) ............................................................................................... 23
H.B. 2322 Before the H. Comm. on Corr. and Juv. Justice, 2011 Leg ............. 6
Kansas Judicial Council, Report of the Judicial Council Advisory
Committee on Sex Offenses and Registration (December 11, 2020) ........... 24
House Substitute for S.B. 37 (2011) ...................................................... 17, 22-23
OFFICE OF SEX OFFENDER SENTENCING, MONITORING, APPREHENDING,
REGISTERING, AND TRACKING, SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT (SORNA) STATE AND TERRITORY IMPLEMENTATION
PROGRESS CHECK (September 30, 2020)……………………………......……….2
vi
PETITION FOR WRIT OF CERTIORARI
N.R. respectfully petitions this Court for a writ of certiorari to review the
judgment of the Kansas Supreme Court in this case.
OPINIONS BELOW
The split opinion of the Kansas Supreme Court is published at 495 P.3d 16.
(Slip opinion included as Appendix A at Pet. App. 1a.) The opinion of the Kansas
Court of Appeals is published at 451 P.3d 877. (Slip opinion included as Appendix B
at Pet. App. 40a.) The oral judgment of the state district court is unreported. R. 6: 5.
JURISDICTION
The Kansas Supreme Court issued its opinion on September 17, 2021. Pet.
App. 1a. This Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. art. I, § 9, cl. 3:
“No Bill of Attainder or ex post facto Law shall be passed.”
U.S. Const. amend. VIII:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Kan. Stat. Ann. § 22-4906(h) (2011), in part:
“… an offender 14 years of age or more who is adjudicated as a juvenile
offender for an act which if committed by an adult would constitute a sexually
violent crime … and such crime is an off-grid felony or a felony ranked in severity
1
level 1 of the nondrug grid … shall be required to register for such offender’s
lifetime.”
Kan. Stat. Ann. § 22-4908 (2011), in part:
“No person required to register as an offender pursuant to the Kansas
offender registration act shall be granted an order relieving the offender of further
registration under this act.”
The entirety of the Kansas offender registration act, found within the Kansas
code of criminal procedure at Kan. Stat. Ann. § 22-4901 et seq., is included at Pet.
App. 57a.
STATEMENT OF THE CASE
N.R. was 14 years old when a court adjudicated him as a juvenile offender
and placed him on probation. Pet. App. 3a. At that time, the judge told him he had
to register for five years. Pet. App. 3a. The month before those five years were up,
the Kansas Legislature made sweeping changes to the Kansas Offender
Registration Act (KORA). N.R. was caught up in them and, overnight, his
registration obligations extended to the day he dies: no discretion, no individualized
assessment, and no early removal. Pet. App. 3a; Kan. Stat. Ann. § 22-4902 et seq.
N.R. is not alone—there are other people like him in Kansas and across the
nation.1 Despite growing amounts of research, data, lived experience, and other
1 To some degree, 41 states require registration for sex offenses committed by children. OFFICE OF
SEX OFFENDER SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING, SEX
OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) STATE AND TERRITORY IMPLEMENTATION
PROGRESS CHECK (September 30, 2020).
2
information, N.R.—and many others who are living with requirements retroactively
applied to them for an adjudication they received as a child—hears this from the
Kansas Supreme Court and other lower courts: what is happening to you and your
family is acceptable because of Smith v. Doe, 538 U.S. 84 (2003).
But Smith v. Doe did not involve someone adjudicated of a sex offense when
he was a child. In fact, the state where it came from, Alaska, did not, and to this day
does not, require registration for children adjudicated of sex offenses. Alaska Stat.
Ann. § 12.63.100(3) (2003); Alaska Stat. Ann. § 12.63.100(3) (West 2019). And this
Court has acknowledged since Smith v. Doe that a person adjudicated as a juvenile
offender and later subjected to registration requirements may have grounds for an
ex post facto challenge. U.S. v. Juvenile Male, 564 U.S. 932, 937-38 (2011) (appeal
dismissed for mootness).
Furthermore, Smith v. Doe is 18 years old. It was decided before Congress
enacted the Sex Offender Registration and Notification Act (SORNA) in 2006, a
federal law plus a series of legally binding guidance issued by the Executive
Branch, which consists of requirements for states to implement in their own
registries. 34 U.S.C. § 20901, et seq. Since 2006, registration requirements in
different jurisdictions, including Kansas, have expanded exponentially, and the
laws have become far more punitive.
In contrast, lower courts taking the default position that Smith v. Doe
controls over their state’s registry conditions is waning. Since 2009, at least eleven
state courts of last resort and the Sixth Circuit have held that offender registration
3
statutes cannot be applied retroactively without violating prohibitions against ex
post facto laws or cruel and unusual punishment. See Reasons for Granting the
Petition, infra, at 12-13; see also Pet. App. 37a (“Across the nation, courts are
creeping out of the shadow of Smith and declaring registration requirements
punitive”). At least five state courts of last resort have reached this conclusion
specifically regarding people adjudicated as juveniles. See Reasons for Granting the
Petition, infra, at 12-13.
Because of the increasingly punitive nature of offender registration statutes,
this Court should weigh in on whether KORA and similar schemes constitute
punishment for purposes of the Ex Post Facto Clause and Eighth Amendment,
when applied to people registering because of juvenile adjudications. Further, this
Court’s review is the only way that courts will have guidance in conducting this
analysis in the context of people adjudicated as children. Although Smith v. Doe
provided a framework, the statutory scheme in Alaska in 2003 was too different
from the current landscape of offender registration requirements—and children are
too different from adults—for its conclusion to be the guidance that courts need
when considering different issues in 2021.
A.
The Kansas Offender Registration Act
1.
The Kansas Legislature created the first offender registry act in 1993.
The Habitual Sex Offender Registration Act required a person twice convicted of a
sexually violent crime to register with the sheriff in the county where he/she lived
for ten years. The information was open to law enforcement agencies only. 1993
4
Kan. Sess. Laws, ch. 253. On April 14, 1994, the Legislature expanded the Act to
include people with first-time convictions and renamed it the Kansas Sex Offender
Registration Act. It allowed public access to registrants’ information; interested
parties had to go to the sheriff’s office to access the information. 1994 Kan. Sess.
Laws, ch. 107.
In 1997, the Legislature added people convicted of murder and manslaughter,
along with people with convictions for certain crimes with victims under age 18. The
Act was renamed and has since remained the Kansas Offender Registration Act.
1997 Kan. Sess. Laws, ch. 181. Since 1997, additional sex offenses have been added
to the definition of offender, and children adjudicated of certain sex offenses were
added in 2002. 2002 Kan. Sess. Laws, ch. 55. In 2006, the Legislature gave courts
some discretion about whether to require registration for children adjudicated of
some sex offenses. 2006 Kan. Sess. Laws, ch. 214.
The Legislature broadened KORA further: in 2006, to include people
convicted of any person felony [where a finding was made that] a deadly weapon
was used,” and in 2007, to include people convicted of manufacturing, possession of
precursors, and drug distribution or possession with intent to distribute. 2006 Kan.
Sess. Laws, ch. 214; 2007 Kan. Sess. Laws, ch. 183.
2.
The registration periods for people convicted of sex offenses range from
15 years to lifetime. From 2002 to June 2011, the registration period, if required at
all, for all people adjudicated of sex offenses committed when they were children
was five years or until they reached age 18, whichever was longer. Kan. Stat. Ann. §
5
22-4906 (2010). After July 1, 2011, the period for people adjudicated of certain levels
of sex offenses was increased to lifetime. Kan. Stat. Ann. § 22-4906.
Although the original act permitted registrants to petition for early removal,
since 1999 (for lifetime registrants) and 2001 (for anyone), early removal has been
expressly prohibited by statute. Kan. Stat. Ann. § 22-4908; 1999 Kan. Sess. Laws,
ch. 164; 2001 Kan. Sess. Laws, ch. 208. In 2011, the Legislature eliminated a safety
valve created in 1999 for people whose registration period was over by July 1, 1999.
2011 Kan. Sess. Laws, ch. 95. Failing to comply with KORA is a felony. Kan. Stat.
Ann. § 22-4903; see also Reasons for Granting the Petition, infra, at 21-22.
3.
As this Court knows, in 2006, Congress enacted the Sex Offender
Registration and Notification Act (SORNA), which was Title I of the Adam Walsh
Child Protection and Safety Act. Pub. L. No. 109-248 (originally codified at 42
U.S.C. §16901, et seq.; now at 34 U.S.C. § 20901, et seq.). In 2011, the Kansas
Legislature considered a bill with the stated purpose of bringing Kansas into
“substantial compliance” with SORNA in order to avoid the loss of Byrne Grant
money. See Hearing on H.B. 2322 Before the H. Comm. on Corr. and Juv. Justice,
2011 Leg. (testimony in support of the bill by Sgt. Al Deathe, Douglas County
Sheriff; David Hutchings and Nicole Dekat, Kansas Bureau of Investigation).
The KORA overhaul became law, and eventually a number of registrants
challenged the application of the 2011 amendments to their situations, arguing that
retroactive application of the sweeping changes to the registrants violated the Ex
Post Facto Clause. Pet. App. 8a-9a. After applying the factors set out in Kennedy v.
6
Mendoza-Martinez, 372 U.S. 144 (1963), to the 2011 KORA amendments, a majority
(4-3) of one composition of the Kansas Supreme Court agreed that the 2011 version
constituted punishment for the purposes of the Ex Post Facto Clause. State v.
Buser, 304 Kan. 181, 371 P.3d 886 (2016); State v. Redmond, 304 Kan. 283, 371 P.3d
900 (2016); Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016); Pet. App. 82a.
(KORA, as amended in 2011, was punitive in effect and could not be applied
retroactively to any registrant who committed the qualifying crime prior to July 1,
2011).
But on that same day, a majority (4-3) of a one-justice-different composition
of the Court overruled those three cases and held that lifetime sex offender
registration was not punishment and, therefore, did not violate the Eighth
Amendment prohibition against cruel and unusual punishment. State v. PetersenBeard, 304 Kan. 192, 377 P.3d 1127 (2016), cert. den. October 3, 2016; Pet. App.
150a. The majority cut and pasted the dissent from Doe v. Thompson and adopted it
as its reasoning and basis for decision, which was “a faithful application of federal
precedents requires us to find that the provisions of KORA at issue here are not
punitive for purposes of applying our federal Constitution.” Pet. App. 156a.
The following year, when faced with a strictly Ex Post Facto claim, the Court
did no new analysis or discuss the differences in situation, and simply pointed to
Petersen-Beard. State v. Reed, 306 Kan. 899, 900, 904, 399 P.3d 865 (2017)
(Petersen-Beard did not involve retroactivity, while Reed did; six months before his
7
time was set to expire, the 2011 amendments made Reed go from a 10-year
registration period to lifetime).
None of these Kansas Supreme Court cases involved a registrant whose
obligation resulted from a juvenile adjudication.
B.
Proceedings in the district courts
1.
In 2006, the State charged N.R. with rape in a juvenile offender
complaint; N.R. was 14 at the time of the alleged offense. In August 2006, N.R. pled
guilty as charged and was adjudicated a juvenile offender. The district court placed
N.R. on probation for 24 months, with an underlying 24-month sentence in a
juvenile correctional facility. Three months later, the magistrate judge ordered N.R.
to register “locally only, as a sex offender,” but not publicly statewide or nationally.
Pet. App. 3a. The order did not say how long N.R. had to register, but the version of
KORA in effect at the time required N.R. to register for five years. Kan. Stat. Ann. §
22-4902(b) and (c)(1); Kan. Stat. Ann. § 22-4906(h)(1) (2006); Pet. App. 3a.
On July 1, 2011, the month before the five-year period was set to expire, H.
Sub. for S.B. 37 took effect. Pet. App. 3a; 2011 Kan. Sess. Laws, ch. 95 (see Pet. App.
57a for law in statutory form). Suddenly the expiration of N.R.’s registration period
went from the following month to the day he dies. Kan. Stat. Ann. § 22-4906(h)
(2011).
2.
On June 2, 2017, (1) the State charged N.R. with four counts of KORA
noncompliance, (2) the district court issued an arrest warrant, and (3) N.R. was
arrested while at the offender registration office for a required quarterly
8
registration. R. 1: 11-14, 16, 20-21; R. 2: 2. Because N.R. had a prior conviction from
2012 for KORA noncompliance, his charges were severity level 5 person felonies
(which is akin to involuntary manslaughter, attempted aggravated robbery, and
reckless aggravated battery resulting in great bodily harm). Pet. App. 3a; see Kan.
Stat. Ann. §§ 21-5405(b)(1)(A), 21-5420(c)(2), 21-5301(c)(1), 21-5413(g)(2)(C),
respectively.
N.R. filed a motion to dismiss the charges, arguing that his lifetime
registration requirements violated the Ex Post Facto Clause of the United States
Constitution as well as state and federal constitutional protections against cruel
and unusual punishment. Pet. App. 4a. The State opposed the motion, relying on
Petersen-Beard. Pet. App. 4a.
At the motion hearing, N.R.’s counsel began her comments with “at a
common sense level to say that a 14-year-old is now forced to register for the rest of
his life as a sex offender isn’t a punishment I think is just ridiculous.” R. 6: 2.
Counsel submitted two affidavits to the court—one from N.R. and one from his
fiancée—detailing the “numerous ways in which [N.R.’s] registration requirement
has served as a punishment for him, for his fiancée, for their child, [and] for their
family,” specifically instances (1) “where he was unable to find housing,
employment, and substance abuse treatment because of his status as an offender,”
and (2) “public dissemination of his information has subjected him to
embarrassment and even violence from members of the community.” R. 6: 2; Pet.
App. 4a.
9
In ruling on N.R.’s motion to dismiss, the district court said it was “duty
bound” to follow the Kansas Legislature and Kansas Supreme Court, but noted that
“I thought it was more than somewhat interesting on the day the opinions, I think,
that are controlling came out that the Supreme Court . . . reversed themselves in
the same day by adding an additional justice.” R. 6: 5. At a bench trial on stipulated
facts, the district court found N.R. guilty of two counts of KORA noncompliance.
Pet. App. 43a. The district court sentenced N.R. to 49 months in prison, but placed
him on probation for 36 months. Pet. App. 45a.
C.
Proceedings in the Kansas appellate courts
1.
N.R. appealed his conviction to the Kansas Court of Appeals,
specifically challenging the district court’s denial of his motion to dismiss on the
same grounds as in district court. Pet. App. 45a-46a. The core of N.R.’s argument
was “juveniles are different than adults,” and he discussed cases from this Court
dealing with “the diminished culpability of juveniles.” Pet. App. 46a-47a, 50a-51a.
The Court of Appeals ultimately concluded that “N.R. has shown no reason for us to
believe that the outcome of Petersen-Beard or other controlling precedent would
have been any different had it involved a juvenile instead of an adult,” and affirmed
his convictions. Pet. App. 54a.
2.
N.R. filed a petition for review in the Kansas Supreme Court, which
was granted. Pet. App. 2a. Again, N.R. argued constitutional grounds, as well as
because juveniles are different from adults, the Court “must apply an analysis
10
differen than that in Smith or Petersen-Beard for purposes of evaluating
excessiveness.” Pet. App. 13a-14a.
The N.R. majority acknowledged that neither Smith v. Doe nor PetersenBeard “mention the age of the offender.” Pet. App. 9a. The Court admitted the
“affidavits establish that N.R. has suffered personal harm, violence, mental health
issues, and embarrassment because of public dissemination of his registration
information.” Pet. App. 11a. The Court discussed its own caselaw where it
“recognized that juveniles generally have a ‘lower risk of recidivism’ and that
‘[p]lacing lifetime restraints on a juvenile offender's liberties requires a
determination that the juvenile will forever be a danger to society’ and undermines
juvenile rehabilitation,” and struck down mandatory lifetime postrelease
supervision for children. Pet. App. 15a.
But then the Court characterized N.R.’s use of “the ‘children are different’
analysis” as a “circular” argument and a “red herring” because postrelease
supervision and life without parole are “punishment”, “punishments”, or “sentences”
(emphasis in original), “[b]ut under the current state of the law in Kansas, the
KORA registration requirements are not punitive. See Petersen-Beard [citation
omitted]. Because they are not punitive, the KORA registration requirements are
not subject to the punishment analysis” set out in the Court’s opinions. Pet. App.
16a. The Court held that “KORA’s mandatory lifetime registration requirements as
applied to N.R. are not punishment and, as a result, do not violate the federal Ex
11
Post Facto Clause or the prohibition against cruel and unusual punishment under
the Eighth Amendment of the United States Constitution[.]” Pet. App. 20a-21a.
The dissent began like this:
For more than 15 years I have been a proud member of a court that has
historically taken an unyielding stand against the degradation of rights
guaranteed by our Constitution. . . .
Today, I feel none of that pride. Today, the court eschews the United States
Constitution and the citizens it stands to protect for reasons I cannot
comprehend.
Pet. App. 23a-24a. The dissent included research, data, real-world analysis, and a
list of cases from other states where N.R.’s situation was decided differently. Pet.
App. 25a-39a. The dissent concluded:
N.R. is—very clearly—being punished by the Legislature’s “civil scheme.”
The majority’s refusal to acknowledge this is inexplicable. To put it plainly, in
the words of my recently retired colleague, the majority’s holding is “wrongheaded and utterly ridiculous. ... [I]n the real world where citizens reside,
registration is unequivocally punishment.” State v. Perez-Medina, 310 Kan.
525, 540-41, 448 P.3d 446 (2019) (Johnson, J., dissenting). Consequently, I
would hold that N.R.’s lifetime registration requirement violates the Ex Post
Facto Clause because it was enacted and imposed after N.R. committed the
actions that led to his adjudication.
Pet. App. 39a.
REASONS FOR GRANTING THE PETITION
A.
Lower courts are divided over whether retroactive application of
modern-day registration requirements violates the Ex Post Facto
Clause or the Eighth Amendment.
As to registrants generally, N.R. acknowledges that only one federal court of
appeal has determined that SORNA’s registration requirements cannot be
constitutionally applied to people whose offense pre-dated the requirements, while
12
at least nine have rejected ex post facto or cruel and unusual punishment claims.
Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Michigan’s registry imposes
punishment); Pet. App. 48a-49a, 130a-131a (for cases rejecting the issue). He also
acknowledges that at least two federal courts of appeal have found that SORNA is
not punishment as applied to someone adjudicated as a child. See United States v.
Under Seal, 709 F.3d 257, 265 (4th Cir. 2013); U.S. v. Juvenile Male, 670 F.3d 999
(9th Cir. 2012).
But since the passage of SORNA in 2006, at least eleven state courts of last
resort have held generally that offender registration requirements cannot be
applied retroactively without violating constitutional prohibitions. See Doe v. State,
189 P.3d 999, 1019 (Alaska 2008); People In Int. of T.B., 489 P.3d 752 (Colo. 2021);
Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009); In Int. of T.H., 913 N.W.2d 578
(Iowa 2018); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Doe v. Dep’t of Pub. Safety
& Corr. Servs., 62 A.3d 123, 137 (Md. 2013); People v. Betts, __ N.W. 2d __, 2021 WL
3161828 (Mich. 2021); Doe v. State, 111 A.3d 1077 (N.H. 2015); State in Int. of C.K.,
182 A.3d 917 (N.J. 2018); State v. Williams, 952 N.E.2d 1108, 1113 (Ohio 2011); In
re C.P., 967 N.E.2d 729 (Ohio 2012); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d
1004, 1030 (Okla. 2013); In re J.B., 107 A.3d 1 (Pa. 2014). In five of these cases—
Colorado (T.B.), Iowa (T.H.), New Jersey (C.K.), Ohio (C.P.), and Pennsylvania
(J.B.)—the person in the case had been adjudicated as a child for the offense giving
rise to their registration obligation.
13
The split is widening and will continue to do so as more courts “look at the
research and the arguments, [and see the] truth before us: lifetime registration for a
14-year-old offender is, unmistakably, punishment.” Pet. App. 38a.
B.
Only this Court can provide guidance to lower courts on what test to
use to evaluate issues involving retroactive application of
registration requirements for people adjudicated as juveniles.
Smith v. Doe and Petersen-Beard are “the current state of the law” in this
country and state, respectively. Pet. App. 21a. As the N.R. majority noted, this
presents N.R. and others like him with “an uphill battle.” Pet. App. 13a. Time after
time, lower courts do not dig into the facts, arguments, data, and research put
before them, and instead fall back on Smith v. Doe, even when the person before
them was adjudicated as a child. See, e.g., Pet. App. 27a, 30a, 45a-46a, 48a; U.S. v.
Elkins, 683 F.3d 1039, 1041, 1044-45 (9th Cir. 2012) (Ninth Circuit, relying on Smith
v. Doe and other Ninth Circuit cases that did the same, reversed district court and
held that requiring registration for a pre-SORNA adjudication when the person was
14 did not violate the Ex Post Facto Clause).
This case is a perfect example of that. N.R. filed a detailed motion and
presented affidavits describing
how difficult it was for them to find and secure housing due to N.R.’s status
as a sex offender; how hard it was for N.R. to find and maintain employment;
how the $20 reporting fee imposed additional financial strain on the family
because they already were a low-income household; how N.R. continued to
struggle with his sobriety because treatment facilities and sober living houses
across Kansas would turn him away due to his status, which led to
homelessness and seeking shelter in drug houses; how neighbors and
community members ostracized N.R. and his family when those individuals
learned of his status, including two occasions where N.R. was threatened at
gunpoint; how N.R. and his fiancée feared for their child’s safety; how N.R.
14
was concerned about not being able to participate in his child’s school
activities due to his status; how N.R. suffered from depression as a result of
the lifetime registration requirements; and how N.R. attempted suicide as a
result of his depression.
Pet. App. 4a; see also Pet. App. 27a (“[c]ountless jurists, scholars, and social
scientists have confirmed how common these burdens are to those required to
register”). But the district court did not “make any factual findings regarding the
affidavits or address their substance” because “it was bound to follow the
Legislature’s directives and Kansas Supreme Court precedent.” Pet. App. 10a. Then
the N.R. majority blindly relied on Petersen-Beard, which blindly relied on Smith v.
Doe. See, e.g., Pet. App. 8a-9a, 16a, 132a.
But Smith v. Doe, Petersen-Beard, and Reed did not involve a person
adjudicated as a juvenile. Pet. App. 9a. And this Court has not considered on the
merits whether the test set out in Smith v. Doe applies to a person adjudicated as a
juvenile. This Court acknowledged that a person adjudicated as a juvenile offender
and later subjected to registration requirements may have grounds for an ex post
facto challenge. U.S. v. Juvenile Male, 564 U.S. 932, 937-38 (2011) (appeal
dismissed for mootness). Without guidance, what happened to N.R.—and to people
litigating their issues in courts across the country—will continue, “leav[ing] one at a
loss as to what, if any, condition KORA could create that the majority would
consider onerous.” Pet. App. 30a-31a.
N.R.’s case also illustrates what happens when a person adjudicated as a
juvenile attempts to argue considerations, such as juveniles are different from
adults, that may not fit neatly into one of the Mendoza-Martinez factors used in
15
Smith v. Doe. The N.R. majority acknowledged this Court’s decisions, as well as its
own, where heart of the outcome was that children are different, but instead of
digging into the research and arguments N.R. made, the majority simply presumed
it wasn’t punishment, as illustrated by putting words like “sentence” and
“punishment” in italics. But emphasizing words does not analysis make. Pet. App.
15a-16a, 18a. The majority accused N.R. of “circular” reasoning and introducing a
“red herring”, but it is the Court that is circular. Pet. App. 16a. In the words of the
dissent, “N.R.’s argument brings the punitive effect of his lifetime registration
requirement sharply into focus. If he is less culpable than his adult counterpart,
and he is less likely to endanger the public, treating him as if he is just as menacing
is indefensible.” Pet. App. 34a.
C.
The decision below is wrong.
1.
The majority ignores science and research related to children. N.R.’s
arguments and information centered around the fact that children are different
from adults. Pet. App. 13a-17a, 34a. “Social scientists and scholars have confirmed
that juvenile offenders are distinct from adult offenders.” Pet. App. 34a; see also
Association for the Treatment of Sexual Abusers, Registration and Community
Notification of Children and Adolescents Adjudicated of a Sexual Crime:
Recommendations for Evidence-Based Reform (2020) (review of “the emergence and
development of sexual offender registration and community notification (SORN)
laws, identify how these laws have been applied to children and adolescents
adjudicated for a sexual crime, and consider the extent to which these laws” are
16
based on research and science, have affected recidivism, and meet the intended
goals).
By sticking with Petersen-Beard and, therefore, Smith v. Doe, the N.R.
majority ignores that Smith v. Doe was decided in part based on misinformation
about adults who have been convicted of sex offenses. Pet. App. 32a-33a, 186a-188a.
N.R. joins the majority in Doe v. Thompson/dissent in Petersen-Beard in “cling[ing]
to the belief that the persons who have been privileged to serve on our nation’s
highest Court will yield to the facts and give a closer look at whether our statutory
scheme is rationally connected to the nonpunitive purpose of public safety and
whether its terms and conditions are excessive in relation to that public safety
purpose.” Pet. App. 188a.
2.
The majority “shrugs its shoulders” at what N.R. is required to do for
the rest of his life, and ignores reality. Pet. App. 27a. Instantly, with no assessment
or opportunity for early removal, N.R. went from being almost done with an already
pretty onerous registration requirement to the expanded obligations shown below
(the italicized language in the chart below summarizes new requirements created by
H. Sub. for S.B. 37, which continue to this day), which will continue for the rest of
N.R.’s life:
Who is required Brief summary of what it
to register as an requires registrant to do
offender
The same
categories as
prior law, only
reorganized, and
*within 3 business days, must
register with sheriff in county
of residence, employment, or
17
Length of registration,
noncompliance penalty,
relief from registration,
and information accessible
Increases registration periods
from 10 years or life to 15, 25,
or lifetime, depending on
offense (exs.: violent/drug
adds lifetime
registration for
kidnapping and
aggravated
kidnapping
regardless of
victim’s age
school, or intended residence,
employment, or school
and report changes within 3
business days (used to be 10
days on both) to the old and
new (if applicable) agencies as
well as written notice to KBI
Removes personal
use exception from
manufacturing
registration
requirement, and
adds as
qualifying
convictions any
attempts,
conspiracies, or
solicitations to
commit the
enumerated drug
offenses
*people who cannot physically
register in person are subject to
verification requirements
determined by registering
agency
Excludes people
adjudicated as a
juvenile offender
for an act that
would, if
committed by an
adult, be a
sexually violent
crime, if the court
finds that the act
involved nonforcible sexual
conduct, the
victim was at
least 14, and the
offender was not
more than four
years older than
the victim
*at registering law enforcement
agency’s discretion, violent and
drug offenders can report three
times in person and one time
by certified letter
offenders went from 10 to 15;
some sex offenders went from
10 to 25 while others went
from 10 to life; some juveniles
went from 5 to life)
Upon a conviction for second
registerable offense, offender
has to register for life (exs.:
two drug convictions, or one
drug and one violent, or one
drug and one sex)
Changes penalty for violating
to a severity level 6 for a first
offense, 5 for a second, and 3
for a third or subsequent or
for one longer than 180 days)
(it had been a severity level 5)
*date and place of birth, and
alias dates/places
A new offense every 30 days
of noncompliance or every 180
days for an aggravated one
Expands venue for prosecution
to counties not only where
offender resides, but also
where they are required to be
registered, where they are
located during
noncompliance, or where
conviction requiring
registration occurred
*title and statute number of
offense(s) committed,
county/state/country and date
of conviction(s), and case nos.
Emphasizes that a KORA
violation is the “failure by an
offender to comply with any
and all provisions of such act”
*current residential address,
and any anticipated future
residence and any temporary
lodging information
[including] address, phone
number, dates of travel if
Amends adult and juvenile
expungement statutes to forbid
expungement of any conviction
or any part of the offender’s
criminal record while the
*transient offenders can be
made to register every 30 days
or more often, at the discretion
of the registering agency
Information required to be
reported at quarterly visits:
*name and all aliases
18
Expands
definitions of
many terms (ex.
“reside” and
“employment”)
staying 7 or more days, or if
transient, places stayed and
frequented since last reporting
*all phone numbers at which
the offender maybe contacted
*any and all schools and
satellite schools attended or
expected to attend and their
locations and phone numbers
*social security number and
any alias numbers
*name and number of
probation or parole officer
*identifiers such as race,
ethnicity, sex, age, hair and
eye color, height and weight,
scars, blood type
*all professional licenses,
designations, and certifications
*occupation and name of
employer, as well as address
and telephone number, and
name of any anticipated
employer
*all current driver’s license or
ID card including a photocopy
of all such DLs or IDs and
their numbers, states of
issuance and expiration dates
*vehicle information, including
license plate number, any
other identifier and description
of any vehicle owned or
operated by offender or
regularly drives either for work
or personal use, and
19
offender is required to register
as provided in KORA
Expands no relief from
registration provision to
include people with out-ofstate convictions or
adjudications
Repeals 22-4912 (which had
provided that anyone required
to be registered prior to 7/1/99
who would not have been
required to register on and
after 7/1/99 shall be entitled
to be relieved of the
requirement by applying to
the sentencing court
On and after June 1, 2006,
prohibits cities and counties
from adopting or enforcing
residence restrictions for
offenders
Same public access as 2005
If someone is a confidential
informant or been provided a
new identity, they must
register but it will not be open
to public inspection
information RE: the location of
any of those vehicles
*license plate number,
registration number or other
description of any aircraft or
watercraft owned or operated
by offender and where stored
*any and all email addresses
and any and all online
identities and any information
RE: online social networks
*sex and date of birth or
purported age of victim
*photograph; fingerprints and
palm prints; DNA
*all travel and immigration
documents; notify registering
agency and KBI within 21 days
of travel outside the U.S.
Compare Kan. Stat. Ann. §§ 22-4904, 22-4906(h)(1), with 2011 Kan. Sess. Laws, ch.
95; Pet. App. 57a. “The majority’s quick dismissal of N.R.’s arguments—without any
actual analysis of what registration means for him against the internet of today and
the instantaneous access to information via social media—is callously dismissive
and grossly blind to realities of the present day.” Pet. App. 31a.
The majority fails to appreciate the punitive effect of current KORA
requirements, particularly as it relates to people who were adjudicated as
children—and especially as it relates to N.R: “If N.R. fails to fulfill the
requirements, he can be prosecuted and sentenced to years of prison time, even
though he was never confined in a juvenile correctional facility when he was
20
adjudicated an offender for the underlying offense.” Pet. App. 26a-27a. Smith v. Doe
instructs courts to look at the entire statutory scheme to examine it for punitive
effects. Pet. App. 7a. Courts must look at how it plays out day to day. To pick just
one thing, consider how violations are handled. As seen in this case, if a registrant
(in any category) fails to timely comply with any duties under KORA, even
unintentionally, they can be charged with a felony. Kan. Stat. Ann. § 22-4903. It
was not always this way, though. From 1993 to mid-1999, failure to register was a
nonperson misdemeanor. (In Kansas, most crimes are designated person or
nonperson, which has a number of impacts, particularly in creating a person’s
criminal history score in a future case. See Kan. Stat. Ann. § 21-6809.) In 1999, the
Legislature increased the penalty to the lowest-level nonperson felony. It remained
that way until 2006, when the Legislature doubled the penalty for noncompliance
and elevated it to a person felony. 2006 Kan. Sess. Laws, ch. 212.
As of July 1, 2011, KORA noncompliance is a mid-level felony (akin to arson
or involuntary manslaughter, for example) for a first or second offense, and a high
level felony (akin to aggravated robbery, for example) for a third or subsequent
offense or a violation that lasts over 180 consecutive days. Kan. Stat. Ann. § 224903. In 2013, the Legislature created a new crime relating to KORA
noncompliance: unless a registrant has received a court-issued waiver of payment in
the past three years, it is a Class A misdemeanor if a registrant does not pay the
$20 registration fee that is owed when a registrant goes in for the quarterly
21
registrations. It is a low-level felony if two or more $20 payments have not been
paid. 2013 Kan. Sess. Laws, ch. 127.
A special sentencing rule makes all noncompliance violations carry a
presumptive prison sentence. Kan. Stat. Ann. § 21-6804(m). Failing to comply is a
strict liability offense; the only other strict liability crime specifically designated by
Kansas statute is driving under the influence, although the Court recently held that
rape is a strict liability offense. Kan. Stat. Ann. § 21-5203; State v. Dinkel, 495 P.3d
402, 403 (Kan. 2021) (“There is no mental culpability requirement for the crime
of rape of a child under 14 years of age”).
These are penalties that N.R., and others like him, face for the remainder of
his life if he fails to comply with every aspect of KORA.
3.
The majority does not appreciate the distinctions between SORNA and
KORA. In Petersen-Beard and N.R., the Court cited to federal circuit court decisions
that upheld SORNA requirements. Pet. App. 48a-49a, 130a-131a. Shortly after
N.R., the Court rejected an ex post facto challenge in a case involving an adult
conviction, citing to Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020). See State v.
Shaffer, No. 119,738, 2021 WL 5406136 (Kan. 2021) (unpublished).
But Kansas is different from SORNA guidelines and states like Colorado. For
example, Kansas expressly forbids early release from registration, which is
particularly onerous for people adjudicated as children. N.R. and hundreds of people
in Kansas (as well as people in other states) similarly situated must register until
they die. Compare 34 U.S.C. § 20915(b) (provides for a reduction after 25 years of
22
“clean record” for “sex offender adjudicated delinquent), Colo. Rev. Stat. § 16-22103(4), 16-22-113 (petition for removal provisions), with Kan. Stat. Ann. § 22-4908
(“No person required to register as an offender . . . shall be granted an order
relieving the offender of further registration…”).
This was by design. H. Sub. for S.B. 37 (2011), the final home of the sweeping
changes to KORA, contained provisions not relating to or required by SORNA. See
Hearing on H.B. 2322 Before the H. Comm. on Corr. and Juv. Justice, 2011 Leg.
(testimony in support of the bill by Sgt. Al Deathe, Douglas County Sheriff; David
Hutchings and Nicole Dekat, Kansas Bureau of Investigation). The proponents
proposed amendments that were not SORNA-related. For example, the proponents
acknowledged that SORNA “requires a tiered duration of registration of 15 years,
25 years, and lifetime registration,” but they “prefer[red] to manage the program
within a two-tiered system,” i.e., 15 years or life. See Hutchings. The proponents did
not mention—at least not in their written testimony—that requiring people
adjudicated of sex offenses committed as children to register for life with no chance
of early removal was their idea; this is not a SORNA requirement. See 34 U.S.C. §
20915(b); also see Deathe, Hutchings, and Dekat.
Notably, H. Sub. for S.B. 37 also did away with a registrant being able to
expunge any part of their criminal record while they were registering for an offense,
and struck language that had been in place since 1999 that allowed removal of
people from the registry if their registration requirement was over as of July 1,
1999. See Dekat; see also H.B. 2322 (2011); H. Sub. for S.B. 37 (2011).
23
To the extent that the Court relies on federal precedent in N.R.’s case, it does
so without acknowledging the extreme nature of KORA’s provisions.
D.
Now is the time for this Court to consider this important and
recurring issue, and this case is an ideal vehicle to do so.
N.R.’s case is illustrative of an ongoing, national, constitutionally significant
problem. In Kansas alone, over 900 people register because of a juvenile
adjudication for a sex offense. Kansas Judicial Council, Report of the Judicial
Council Advisory Committee on Sex Offenses and Registration, at 8 (December 11,
2020). This Court’s review is the only way N.R. and so many others have any chance
to receive consideration of the issues they present that are driven by research, data,
and lived experience.
NR’s case presents an ideal vehicle for this Court to consider the questions of
national import. N.R. raised these issues below, and the appellate courts considered
them.
The Petersen-Beard majority identified the “real question” in 2016 as “[a]re
there convincing reasons to believe the United States Supreme Court would view
KORA differently than it viewed the Alaska law in 2003 when it decided Smith?”
Pet. App. 132a. N.R. has presented reasons why now is the time for this Court to
answer that question with yes, particularly with regard to people adjudicated as
children.
CONCLUSION
The petition for writ of certiorari should be granted.
24
Respectfully submitted,
/s/ Jennifer C. Roth
JENNIFER C. ROTH
COUNSEL OF RECORD
RANDALL L. HODGKINSON
KANSAS APPELLATE DEFENDER OFFICE
700 S.W. Jackson Street, Suite 900
Topeka, Kansas 66603
(785) 296-5484
jroth@sbids.org
Counsel for Petitioner
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.