Volume 22, No. 4,
by Carol R. Camp , Assistant Public Advocate
This article will provide a brief overview of three of the most significant legislative changes: the use of presentence evaluations and the denial of the right to appeal adverse determinations; the creation of the online registry; and the residency restriction. It is the authorís belief that these three provisions are of doubtful constitutional validity.
The 2000 version of the statute significantly changes this procedure. First, KRS 17.570 has been repealed. Second, the information about presentence evaluations has now been placed in the probation and parole and sentencing provisions of the penal code. For example, KRS 439.265(5) has been amended to state that the purpose of presentence evaluations is to "provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendantís amenability to treatment, and shall be considered by the court in determining whether to suspend the sentence." Similarly, KRS 532.050(4) now provides that the evaluation "shall be considered by the court in determining the appropriate sentence." Upon conviction of a sex crime, the trial court "shall order a comprehensive sex offender presentence evaluation, unless one has been provided within the past six (6) months, in which case the court may order an update of the comprehensive sex offender presentence evaluation." [KRS 439.265(5); KRS 532.050(4)].
Criminal defense attorneys must remember that the individual who undergoes a presentence evaluation will be provided with "a fair opportunity and a reasonable period of time" to controvert the evaluationís findings only if he requests an opportunity to do so. [KRS 532.045(8)]. Note that this is significantly different from former KRS 17.570(4), which required the sentencing court to hold a hearing in accordance with the Kentucky Rules of Criminal Procedure.
Perhaps the most significant change is the denial of an individualís right to appeal adverse findings. Under the 1998 version of KRS 17.570(7), an order designating an individualís risk level was subject to appeal. Now, although the court "shall use the comprehensive sex offender presentence evaluation in determining the appropriateness of probation or conditional discharge" [KRS 532.045(3)], the evaluation "shall be filed under seal and shall not be made a part of the court record subject to review in appellate proceedings and shall not be made available to the public." [KRS 532.045(8); KRS 532.050(4)]. Ironically, it appears that although the criteria that will be used to determine whether conditional discharge is applicable in a given case is not subject to appeal, the issue of whether conditional discharge may be imposed is appealable. Purvis v. Com., Ky., 14 S.W.3d 21 (2000).
Another irony is that persons who move to Kentucky from other states will have the opportunity to administratively appeal a determination that they should be subjected to lifetime registration while living in Kentucky. A person who moves to Kentucky from another state will be required to register for life. However, if this person believes that the offense he committed would only require him to register for ten years if he had committed it in Kentucky, he will be given 60 days from the date he first registers in Kentucky to file a written appeal with the Deputy Commissioner of the Division of Probation and Parole. The appeal must be in writing and include a copy of the foreign judgment; a description of the offense; and a copy of the indictment or other charging instrument describing the conduct constituting the offense. The Deputy Commissioner will review the information provided and render a written decision within 90 days.
The denial of the right to appeal raises serious constitutional concerns. Sentencing decisions are generally subject to appeal. The preferential treatment appears to raise equal protection and due process issues. The denial of the right to appeal also appears to violate the open courts provision of the Kentucky Constitution, [Section 14], as well as Section 115, which guarantees Kentuckyís citizens at least one appeal as a matter of right in all civil and criminal cases.
C. THE KENTUCKY STATE POLICEíS ONLINE SEX OFFENDER REGISTRY
The Kentucky State Police website has been operational since the 2000 version of KRS 17.500 et seq. was signed into law on April 11, 2000. Although the state police claim that the website only includes information provided by individuals who have been released and who have registered since April 11, 2000, the reality is that several high-risk offenders who registered long before April 11, 2000 appeared on the website as soon as it debuted. Eventually, individuals who were required to register before April 11, 2000 [including those who were classified as low and moderate risk under the 1998 version of the statute], will have their photographs and identifying information, including their physical descriptions, offense information, and home addresses, posted on the website.
The unlimited dissemination of personal information such as home addresses, without any showing that such widespread dissemination is necessary to protect public safety, violates an individualís federal and state constitutional interests in reputation and privacy. [U.S. Const. amends. 5, 14; Ky. Const. Secs. 2, 11, 14]. Kentuckyís citizens have enjoyed a long tradition of a fundamental right to personal privacy that exceeds the protections granted by the federal constitution. Com. v. Wasson, 842 S.W.2d 487, 493-499 (Ky., 1992). The Kentucky Supreme Court has defined this right to privacy as "the right to be let alone, that is, the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters in which the public is not necessarily concerned." Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 970 (Ky., 1927).
The Kentucky Supreme Court has also interpreted the right of privacy guaranteed to all citizens of the Commonwealth (included convicted sex offenders) to mean that "[i]t is not within the competency of government to invade the privacy of a citizenís life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society." Com. v. Campbell, 117 S.W. 383, 385 (Ky., 1909). These protections include the right to be free from governmental disclosure of personal information such as home addresses. Zink v. Com., Depít. of Workersí Claims, Labor Cabinet, 902 S.W.2d 825, 829-830 (Ky. App., 1994); KRS 61.878(1)(a); United Stattes Depít. of Defense v. Fed, Labor Relations Auth., 510 U.S. 487, 501, 114 S.Ct. 1006, 1015, 127 l.Ed.2d 325 (1994).
Although "it might seem that a convicted felon could have little left of his good name, community notificationÖwill inflict a greater stigma than will result from conviction alone." Doe v. Pryor, 61 F.Supp.2d 1224, 1231 (M.D. Ala. 1999). Unlimited public notification, without establishing any nexus to increased public safety, invites retribution and punishes convicted sex offenders yet again for their crimes.
No registrant, as defined in Section 15 of this Act, who is placed on probation, parole, or any form of supervised release, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, or licensed day care facility. The measurement shall be taken in a straight line from the nearest wall of the school to the nearest wall of the registrantís place of residence.
This provision raises several significant constitutional issues. First, the terms "supervised release," "high school," "middle school," "elementary school," "preschool," and "licensed day care facility" are not defined, arguably rendering this provision susceptible to a void for vagueness challenge. Do these schools include home schools? Montessori schools? Group homes? Foster homes? Day care facilities for elderly citizens? The answers to these questions will undoubtedly be determined through litigation.
Second, what is a person on supervised release happens to own their home, which happens to be located within one thousand feet of a school or licensed day care facility? If the government is mandating that this person can no longer live in their home, should the government be required to compensate the person for the taking of his private property that has just occurred? And, third, what about an individualís fundamental constitutional rights to establish a home and to live in that home with his family members? Can the government legitimately carve out a statutory exception to these fundamental constitutional rights that applies only to convicted sex offenders?
Finally, the General Assembly apparently forgot to attach a penalty provision to this section of the statute, so individuals who allegedly violate it have no notice as to what potential penalties they will face.
The 2000 version of KRS 17.500 et seq. is susceptible to constitutional challenge because it denies Kentuckyís sex offenders the right to appeal adverse sentencing decisions based on their presentence evaluations, subjects them to unlimited public notification without any showing that such notification is necessary to promote public safety, and severely restricts the areas in which they can live.
2. A registrant who moves to a new address within the same county must now notify his local probation and parole offices of his new address on or before the date he moves. A registrant who moves to a new county must provide his new address to the probation and parole office in his former county of residence on or before the date he moves, and give this information to the probation and parole office in his new county of residence within five days of relocating to the new county. Failure to comply with these requirements is now a Class D felony instead of a Class A misdemeanor.
Carol R. Camp
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Phone: (502) 564-8006 ext. 167
Fax: (502) 564-7890
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