Dissenting opinions rarely make headlines, but the dissent by Kansas Supreme Court Justice Eric Rosen is an amazing read and worth sharing. This judge gets it. You may it useful in future battles against the registry. It is more amazing given the fact that while KS Supre Court Justices are appointed, voters elected to retain Rosen in the 2020 election.
ROSEN, J., dissenting: 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. See In re Adoption of Baby Girl P., 291 Kan. 424, 242 P.3d 1168 (2010); In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008) (protecting rights of natural parents); State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), adhered to on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (striking down as unconstitutional statute criminalizing refusal to submit to testing of bodily substances deemed to have been impliedly consented to); In re L.M., 286 Kan. 460, 470, 186 P.3d 164 (2008) (upholding juveniles' constitutional right to jury trial). Even in the era of Jim Crow and Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), this court protected civil rights against forces of discrimination. See, e.g., Board of Education v. Tinnon, 26 Kan. 1, 22-23 (1881) (power to divide city into districts does not include power to divide city according to race, color, nationality, or descent); Webb v. School District, 167 Kan. 395, 403-04, 206 P.2d 1066 (1949) (creation of special school district carved out to exclude African-American children was impermissible subterfuge for segregation).
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. Today, I dissent.
I agreed with the majority of the court in Doe v. Thompson, 304 Kan. 291, 327-28, 373 P.3d 750 (2016), when we concluded lifetime registration constituted punishment for adult offenders. And I certainly believe it constitutes punishment for N.R., who was 14 years old when he committed the acts for which he was adjudicated an offender and placed on probation—not an adult convicted of a high-level felony and sent to prison—and for which our Legislature has retroactively imposed a life sentence.
I will initially consider the requirements and burdens that the Kansas Offender Registration Act (KORA) places on individuals and the negative impacts that ensue from registration. I will then explain why I do not consider this court's opinion in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), a case with which I disagree in any event, to be constraining precedent in the present appeal. I will point out the differences between public access to juvenile adjudications and public access to sex-offender registries. I will point out the dramatic imbalance between the public benefit of offender registration for juveniles and the lifetime punitive effect that such registration has on juveniles. And I will reiterate the special circumstances of juvenile behavior that distinguishes it from similar behavior committed by adults. I will conclude that registration is plainly punitive in nature, even if not in intention, and the registration statute, as applied to this appellant, is an unconstitutional ex post facto violation.
The Ex Post Facto Clause in the United States Constitution prohibits states from "pass[ing] any . . . ex post facto Law." Article I, section 10. A law violates this prohibition when it "'increase[s] the severity of [the] punishment'" after the crime was committed. State v. Todd, 299 Kan. 263, 278, 323 P.3d 829 (2014) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981]). The first step in analyzing whether legislation violates this constitutional directive is determining whether it constitutes punishment. In making this assessment, this court applies the "intenteffects" test. Under this framework, we deem legislation punishment when it is punitive either in purpose or effect—even if the Legislature intended a "regulatory scheme this is civil and nonpunitive." To assist with this analysis, this court has turned to the factors utilized by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963):
"the degree to which the regulatory scheme imposes a sanction that: (1) has historically been regarded as punishment; (2) constitutes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) is rationally connected to a nonpunitive purpose; (5) is excessive in relation to the identified nonpunitive purpose; (6) contains a sanction requiring a finding of scienter; and (7) applies the sanction to behavior that is already a crime." Petersen-Beard, 304 Kan. at 198 (citing Mendoza-Martinez, 372 U.S. at 168).
The United States Supreme Court has noted that the first five factors are the "most relevant." Smith v. Doe, 538 U.S. 84, 97, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).
The State alleged that when N.R. was 14 years old, he committed acts that, if he had been an adult, would have supported a charge for rape. N.R. pleaded guilty and was adjudicated an offender. A magistrate judge then suspended the imposition of sentence and placed N.R. on probation. The court also ordered N.R. to register as a sex offender "locally" for a period of five years. Shortly before this time expired, the Kansas Legislature enacted legislation requiring N.R. to register for life. N.R. acknowledges that the Legislature intended KORA be civil and nonpunitive but argues the requirement he register for the rest of his life is punitive in effect when applied to him.
KORA requires N.R. to register—in person—at least four times per year. When he is experiencing homelessness, he must register every 30 days and describe every place he has slept and frequented since the last registration and every place he intends to sleep and frequent until the next registration. K.S.A. 22-4905. He must also register in person anytime he moves, experiences a change in employment status, alters his school attendance, uses temporary lodging for seven or more days, or if any of the following things commence, change, or terminate: name, telephone number, identifying physical characteristics, occupation, employer, driver's license, identification card, vehicle information, professional licenses, designations, certifications, treatment for "mental abnormality or personality disorder," email addresses, online identities, personal web pages, travel documents, or name and telephone number of probation officer. K.S.A. 2020 Supp. 22-4905(h); K.S.A. 2020 Supp. 22-4907. If N.R. manages to keep up with these requirements, much of this information is posted on an easily accessible offender registration website that members of the public may peruse at their leisure. K.S.A. 2020 Supp. 22-4909. 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 adjudicated an offender for the underlying offense. K.S.A. 2020 Supp. 22-4903; K.S.A. 2020 Supp. 21-6804
N.R. presented evidence that these onerous requirements have wrought havoc on his attempts to move beyond his adjudication and function within his community. To be brief, registration has caused him to experience homelessness, created barriers to substance abuse treatment, forced him apart from his family, created insurmountable financial strain, severely compromised his mental health, and put his life in danger. Countless jurists, scholars, and social scientists have confirmed how common these burdens are to those required to register. See E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997) (registration causes registrants and families "profound humiliation and isolation," jeopardizes employment and housing, destroys relationships, and spurs "'vigilante justice,'" frequently enough "that registrants justifiably live in fear"); Tewksbury, Exile at Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 Harv. C.R.-C.L. L. Rev. 531, 533 (2007) (offender registrants report several collateral consequences, "including employment difficulties, relationship problems, harassment, stigmatization, and persistent feelings of vulnerability"); Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism, 48 Conn. L. Rev. 1035, 1056-57 (2016) (registration causes difficulty with finding employment, securing housing, and maintaining relationships); Zevitz & Farkas, Sex Offender Community Notification: Assessing the Impact in Wisconsin, 9 (Washington D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 2000) (77% of offender registrants reported "being humiliated in their daily lives, ostracized by neighbors and lifetime acquaintances, and harassed or threatened by nearby
residents or strangers").
The suggestion that these requirements and their effects are not punitive is simply wrong. But today's majority shrugs its shoulders and tosses these realities aside. It points out that a previous majority of this court held mandatory lifetime registration for adult offenders did not constitute punishment for purposes of a cruel and unusual punishment analysis. Slip op. at 8 (citing Petersen-Beard, 304 Kan. 192). It takes the untenable position that, although the State action may be burdensome, it is not technically "punishment" and is therefore permissible. This position is at odds with authority holding that State action need not be intended to be punitive in nature for it to violate constitutional protection. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (indifference to prisoner needs may create constitutional claim); Trop v. Dulles, 356 U.S. 86, 95, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (even clear legislative classification of statute as "non-penal" does not alter fundamental nature of plainly punitive statute); see also Ingraham v. Wright, 430 U.S. 651, 684, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (White, J., dissenting) (state actions that are so cruel that they are
not permitted as penal acts must not be permitted in non-penal contexts).
The majority avoids mentioning that, instead of meaningful analysis, much of the Petersen-Beard decision consisted of string cites to federal cases in which courts considered whether other state registration schemes were punitive. See Petersen-Beard, 304 Kan. at 214 (Johnson, J., dissenting) (observing that majority looks to federal caselaw even though "[o]rdinarily, any analysis of a Kansas legislative act would not begin with a consideration of merely persuasive federal authority when there are decisions of this court on point"). Then, it considers whether there is anything different about N.R.'s circumstances that would make mandatory lifetime registration punitive for him. It ultimately concludes the registration requirements are not so onerous as to constitute punishment for N.R. Slip op. at 17. Such a stunning conclusion leaves one at a loss as to what, if any, condition KORA could create that the majority would consider onerous.
In its first point, the majority rejects N.R.'s claim that the registration requirements cause an affirmative disability or restraint by making it difficult for him to find employment and housing and subjecting him to shame and ostracization in his community. The majority reasons that these consequences come from his juvenile adjudication, and those court records are already public, so the registration adds no disability or restraint. Slip op. at 12. The majority relies entirely on the United States Supreme Court decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), to come to this conclusion. Slip op. at 11. In Smith, the Court concluded that mandatory lifetime registration requirements under Alaska's registration scheme for an adult offender added no affirmative disability or restraint because the offender's conviction was already public. 538 U.S. at 101.
There is a glaring oversight with the majority's reasoning: it pays no attention to the difference between N.R.'s juvenile record being "open for public inspection" and registration on a sex offender database. There are, in fact, very consequential differences. To discover that N.R. was adjudicated for a sex offense through his juvenile record, one must travel to the courthouse, pay a fee, and look up his file on the public database. Alternatively, one can enter personal information into the Kansas Bureau of Investigation's (KBI) website to create an online account, pay a fee, and then look up N.R.'s record. In either case, one must at least know N.R.'s name to complete the search. The KBI website will also ask for N.R.'s birth date. I suspect most people are unaware they can do either of these things. In contrast, any person with internet access can look to see whether N.R. is on the sex offender registry without creating an account and without cost. In fact, one need not even know N.R.'s name to find him on the registry. Anyone can plug in an address and see the names and locations of registered sex offenders in any area they wish. People can find N.R. without looking for him.
In Thompson, this court noted the problem with relying on the 2003 Smith decision to hold that registration is akin to having a public criminal record. We observed that the Smith Court described the Alaska registration system as a "passive" one and compared it to "physically visiting 'an official archive of criminal records.'" Thompson, 304 Kan. at 321 (quoting Smith, 538 U.S. at 99). Such a description, we explained, is "antiquated in today's world of pushed notifications to listservs and indiscriminate social media sharing." Thompson, 304 Kan. at 321 And we pointed out that, since Smith, the Supreme Court has "recognized the vast amount of data that is currently available to most citizens on their smartphones and that 'a cell phone [can be] used to access data located elsewhere, at the tap of a screen.'" (Quoting Riley v. California, 573 U.S. 373, 397, 134 S. Ct. 2473, 189 L. Ed. 2d 430 [2014].) Other scholars have advanced similar criticisms. See, e.g. Carpenter, A Sign of Hope: Shifting Attitudes on Sex Offense Registration Laws, 47 Sw. L. Rev. 1, 25 (2017) ("[w]hen Smith was decided in 2003, the Internet's impact may not have been as well known or understood. So much so that the Court in Smith concluded that providing a name, address, and conviction on a public registry was tantamount to that same information being made available in a court-created public document").
It is clearly much simpler to get to N.R.'s adjudication from his registration than from his public record. But, even more disabling than this easy access is the fact that, once N.R.'s name is registered, he is officially on the list. To the public, being on the sex offender registry is a severe and serious marker; the government has deemed the people on this list so dangerous they need to be accounted for and identified to those around them. A law review article opines that "[s]ex offenders have supplanted insanity acquittees as the most despised segment of the American population." Cucolo & Perlin, "They're Planting Stories in the Press": The Impact of Media Distortions on Sex Offender Law and Policy, 3 U. Denv. Crim. L. Rev. 185, 207 (2013). The authors note that people so labeled are "[r]egularly reviled as 'monsters' by district attorneys in jury summations, by judges at sentencings, by elected representatives at legislative hearings, and by the media" and that "correctional officers rate sexual offenders as more 'dangerous, harmful, violent, tense, bad, unpredictable, mysterious, unchangeable, aggressive, weak, irrational, afraid, immoral and mentally ill' than other prisoners." 3 U. Denv. Crim. L. Rev. at 207-08. Another article explains "[a]s a result of the media's depiction of a one-dimensional 'sex offender' in broadcast news and newspaper articles, the general public has conceptualized what it believes to be the prototype of this 'monstrous imminent evil'—a male who violently attacks young children who are strangers." Cucolo & Perlin, "The Strings in the Books Ain't Pulled and Persuaded": How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases, 69 Case W. Res. L. Rev. 637, 644 (2019). This kind of stigma is debilitating; N.R. attested to the ostracization and death threats to which he's been subject since his registration.
These shocking barriers to N.R.'s ability to move beyond his juvenile adjudication and live a life outside the shadow of that event undoubtedly add an affirmative disability and restraint to N.R.'s life beyond what "public access" to his juvenile record does. The Legislature has constructed a scheme that equates to an effective banishment. This court has acknowledged this before. State v. Myers, 260 Kan. 669, 695, 923 P.2d 1024 (1996) (KORA imposes affirmative disability or restraint because "[u]nrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism" making it "impossible for the offender to find housing or employment"). And scholars have noted this reality for other registrants. See Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism, 48 Conn. L. Rev. 1035, 1055 (2016) ("most agree that carrying the label 'sex offender' is an order of magnitude more difficult to surmount" than "[c]riminal records alone"). 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.
Next, the majority summarily dismisses N.R.'s argument that "public dissemination of his information" is excessive in relation to its purpose. It concludes that the analysis regarding whether the public dissemination adds an affirmative disability or restraint resolves this claim, too. Slip op. at 12-13. In doing so, it ignores the crux of the question this factor presents: Is there an acceptable balance between the punitive effects of registration on N.R.'s life and registration's contribution to public safety? The answer is no.
The majority notes that the requirements N.R. faces are imposed in the name of public safety. But studies have shown that, in contrast to what the Supreme Court said in 2003, the risk of recidivism among sex offenders is not "frightening and high." Smith, 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]). It is, in fact, remarkably low. A Department of Justice study looked at the criminal records of 272,111 released prisoners in 15 states over a designated period of time. Bureau of Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994 1 (2003). It found that only 5.3 percent of sex offenders in the study were arrested for a new sex offense and only 3.5 were convicted. Bureau of Justice Statistics at 1, 2. In contrast, the overall rearrest rate for non-sex offenders was 68 percent. Bureau of Justice Statistics at 2.
As scholars could have predicted, the registries appear to have had little effect on recidivism rates. A 2011 study found "little evidence to support the effectiveness of sex offender registries." Agan, Sex Offender Registries: Fear Without Function? 54 J.L. & Econ. 207, 208 (2011). Many commentators have written about the failings of these registries. See, e.g. Huffman, Moral Panic and the Politics of Fear: The Dubious Logic Underlying Sex Offender Registration Statutes and Proposals for Restoring Measures of Judicial Discretion to Sex Offender Management, 4 Va. J. Crim. L. 241, 257 (2016) ("a
large majority of lawmakers acknowledge that strict legislative initiatives have led to no appreciable reduction in sexual misconduct"); Caldwell et al., An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles, Evaluating the Ability to Predict Sexual Recidivism, 14 Psychol. Pub. Pol'y & L. 89, 91 (2008) (citing multiple studies to support the notion that "[e]xtant research has not supported the effectiveness of sex offender registration and notification at reducing recidivism with adults").
And research reveals that registries, by and large, give us information we do not need. In his article "Sex Panic and Denial," Corey Rayburn Yung explains that "[f]amily members, friends, or other persons known to the victim commit approximately 93 percent of sexual offenses against children . . . ." Yung, Sex Panic and Denial, 21 New Crim. L. Rev. 458, 465 (2018). Thus, "[t]he prototypical fear-based myth . . . that there are a plethora of convicted sex offenders lurking in the bushes ready to attack any passing child or other victim" is false. 21 New Crim. L. Rev. at 465. If nearly all former juvenile offenders are not lying in wait to accost a stranger, then I can see no reason to publicly brand all of them for the rest of their lives as if they are.
Finally, N.R. argues that KORA's registration requirements are excessive because they were imposed as a result of a juvenile adjudication. N.R. claims that, as a juvenile, he was "less culpable and less predatory than adults," and "less likely to reoffend and more amenable to treatment than adults." Consequently, he argues, imposing the same registration requirements to him as the scheme would impose on a convicted adult offender is excessive. For support, N.R. cites cases from this court and the United States Supreme Court that identify differences between child offenders and adult offenders. See State v. Dull, 302 Kan. 32, 52, 351 P.3d 641 (2015) (juvenile offenders have a "diminished moral culpability" compared to an adult offender); Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ("juveniles have diminished culpability and greater prospects for reform"); Graham v. Florida., 560 U.S. 48, 69, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (same); Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juveniles have "'lack of maturity and an underdeveloped sense of responsibility,'" "are more . . . susceptible to negative influences and outside pressures," and "character" "is not as well formed" so "personality traits . . . are more transitory, less fixed").
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. Social scientists and scholars have confirmed that juvenile offenders are distinct from adult offenders. A report compiled by Human Rights Watch explains:
"It is axiomatic that children are in the process of growing up, both physically and mentally. Their forming identities make young offenders excellent candidates for rehabilitation—they are far more able than adults to learn new skills, find new values, and re-embark on a better, law-abiding life. . . .
. . . .
"Adolescent thinking is present-oriented and tends to ignore, discount, or not fully understand future outcomes and implications. Children also have a greater tendency than adults to make decisions based on emotions, such as anger or fear, rather than logic and reason. And stressful situations only heighten the risk that emotion, rather than rational thought, will guide the choices children make. Research has further clarified that the issue is not just the cognitive difference between children and adults, but a difference in 'maturity of judgment' stemming from a complex combination of the ability to make good decisions and social and emotional capability.
. . . .
"MRI (magnetic resonance imaging) images of the anatomy and function of the brain at different ages and while an individual performs a range of tasks reveal the immaturity of the portions of children's brains associated with reasoning and emotional equilibrium. . . .
. . . .
"Moreover, the fact that young people continue to develop into early adulthood suggests that they may be particularly amenable to change. . . . Both criminologists and development experts agree that '[f]or most teens, these [risky or illegal] behaviors are fleeting. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.'" Human Rights Watch, Raised on the Registry: The irreparable Harm of Placing Children on Sex Offender Registries in the US 25-27 (2013), available at https://www.hrw.org/report/2013/05/01/raised-registry/irreparable-harm-placingchildren-sex-offender-registries-us#.
A recent study confirms this assessment. It considered 106 different analyses of recidivism rates among juvenile sex offenders between 1938 and 2014. The most recent data set, captured between 2000 and 2015, reported a mean recidivism rate for juveniles of 2.75 percent. Caldwell, Quantifying the Decline in Juvenile Sexual Recidivism Rates, 22 Psychol. Pub. Pol'y & L. 414 (2016). A 2008 study assessed the effects of federal registration requirements on juvenile offenders. It observed that they were "based on the assumption that juvenile sex offenders are on a singular trajectory to becoming adult sexual offenders." But the authors of the study concluded "[t]his assumption is not supported by [the study's] results, is inconsistent with the fundamental purpose of the juvenile court, and may actually impede the rehabilitation of youth who may be adjudicated for sexual offenses." 14 Psychol. Pub. Pol'y & L. at 105.
The research demonstrates that lifetime registration for a juvenile offender has no rational connection to its purported purpose. This is true for N.R., who committed acts when he was 14 years old for which he was adjudicated an offender—not criminally prosecuted and convicted of a high-level felony, as an adult would have been—and placed on probation. Our justice system did not deem N.R. too dangerous to be outside the confines of a correctional facility; based on the facts before it, the court treated him like the developing, reformable juvenile he was. But the Kansas registration scheme takes no heed of this detail. It subjects N.R. to lifetime registration, which amounts to potentially 80 or so years of quarterly (at least), in-person registration that has and will continue to wreak havoc on N.R.'s life. For the rest of his days, he is branded a sex offender for all to see. This is in light of the reality that N.R. is highly unlikely to reoffend. This means that lifetime registration for N.R. is unrelated to a nonpunitive
purpose, and, consequently, grossly excessive.
These observations provide more than enough to establish that lifetime registration has a punitive effect on N.R. The remaining Mendoza-Martinez factors that the Supreme Court has considered significant in deciding whether legislation is punitive strengthen this conclusion. Blasting N.R.'s name, identifying characteristics, and location across the internet with a bright red "sex offender" designation is akin to historical public shaming and humiliation tactics. See Smith, 538 U.S. at 116 (Ginsburg, J., dissenting) ("public notification regimen, which permits placement of the registrant's face on a webpage under the label 'Registered Sex Offender,' calls to mind shaming punishments once used to mark an offender as someone to be shunned"); People in Int. of T.B., 489 P.3d 752, 767 (2021) (registration for juvenile resembles traditional punishments of humiliation and shaming, especially in "era of social media").
Although not part of the majority analysis, this factor demands our collective attention because the impact of shame and humiliation cannot be overstated. As one set of authors have explained, "'Shame is bordered by embarrassment, humiliation, and mortification, in porous ways that are difficult to predict or contain," and is one of the most important, painful, and intensive of all emotions.'" Perlin & Weinstein, "Friend to the Martyr, a Friend to the Woman of Shame": Thinking About the Law, Shame and Humiliation, 24 S. Cal. Rev. L. & Soc. Just. 1, 7 (2014) (quoting Massaro, The Meaning of Shame: Implications for Legal Reform, 3 Pyschol. Pub. Pol'y & L. 645, 648 [1997]; Svensson et al., Moral Emotions and Offending: Do Feelings of Anticipated Shame and Guilt Mediate the Effect of Socializing on Offending? 10 Eur. J. Criminology 2, 3 [2012]). And "humiliation is the emotional experience of being lowered in status, usually by another person. There is the associated sense of powerlessness." Cucolo & Perlin, Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases, 28 U. Fla. J.L. & Pub. Pol'y 291, 292 (2017). It is "'the rejection of human beings as human, that is, treating people as if they were not human beings but merely things, tools, animals, subhumans, or inferior humans.'" Bernstein, Treating Sexual Harassment with Respect, 111 Harv. L. Rev. 445, 489 (1997) (quoting Margalit, The Decent Society 121 [1996]). I cannot ignore such a punitive effect.
The registration requirements also serve the traditional punitive aims of retribution and deterrence. As I've noted, the registration scheme offered no individual assessment of N.R.'s risk of recidivism or general danger to society. Because these requirements "punish a juvenile for his past conduct without regard to the threat—or lack thereof—that the juvenile currently poses," they are, by nature, retributive. People in Int. of T.B., 489 P.3d at 768 (citing Smith, 538 U.S. at 109 [Souter, J., concurring]); see also Thompson, 304 Kan. at 325 ("such arbitrariness is inherently retributive"). As far as deterrence, even the Supreme Court in Smith acknowledges that the registration requirements could have a natural deterrent effect. 538 U.S. at 102. This court noted the same in Myers. 260 Kan. at 695 ("Registration has an obvious deterrent effect.")
My colleagues may be comfortable to keep their heads in the sand and blindly "follow" a 2003 Supreme Court case that considers a different registration scheme and offers an outdated analysis. But when I look at the research and the arguments, I see the truth before us: lifetime registration for a 14-year-old offender is, unmistakably, punishment. My conclusion is not out of line with caselaw from other parts of the country. Across the nation, courts are creeping out of the shadow of Smith and declaring registration requirements punitive. See Does #1-5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016) (Michigan's registration scheme punitive because it "severely restricts where people can live, work, and 'loiter,' . . . categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, . . . requires time-consuming and cumbersome in-person reporting" and is "supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe"); People v. Betts, No. 148981, 2021 WL 3161828, at *12 (Mich. 2021) (Michigan registration requirements punitive because they publicize wealth of information, encourage social ostracism, impose state supervision, serve to deter, are retributive because they offer no individualized assessment, and are excessive because their efficacy is unclear at best); Starkey v. Oklahoma Dep't of Corr., 305 P.3d 1004, 1030 (Okla. 2013) (Oklahoma's registration scheme punitive because its "many obligations impose a severe restraint on liberty without a determination of the threat a particular registrant poses to public safety"); Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 568, 62 A.3d 123 (2013) (registration scheme as applied to offender violated state constitution's ex post facto clause because it had "essentially the same effect . . . as . . . probation" and imposed "shaming for life"); Wallace v. State, 905 N.E.2d 371, 379-84 (Ind. 2009) (Indiana's registration scheme punitive in effect because it creates "significant affirmative obligations," and "severe stigma," encourages "vigilante justice," resembles shaming punishments, probation, or parole, sometimes requires a finding of scienter, promotes deterrence and retribution, applies to already criminal behavior, and is excessive in relation to purpose because there is no individual assessment of risk). And in a case that is notably reminiscent of the one before us, the Supreme Court of Colorado recently held that lifetime registration for a juvenile offender, who was twice adjudicated an offender for sexual offenses, was punitive and violated the prohibition against cruel and unusual punishment. People in Int. of T.B., 489 P.3d 752 (Colo. 2021). The court was particularly swayed by the reality that "lifetime sex offender registration for juveniles does not bear a rational connection to, and is excessive in relation to, [the registration scheme's] nonpunitive purposes of protecting the community and aiding law enforcement." T.B., 489 P.3d at 768. The court came to this decision after noting that juvenile offenders have a high capacity for reform. T.B., 489 P.3d at 768.
I do not suggest that N.R.'s offense was inconsequential or should be overlooked. But I do suggest that we must follow our constitutional imperatives. 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 "wrong-headed and utterly ridiculous. . . . [I]n the real world where citizens reside, registration is unequivocally punishment." State v. PerezMedina, 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.
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State of Kansas v. Davidson, No. 119,759 (KS Sup Ct, 9/17/21) -- This ruling was issued the same day and involved an adult registrant, and is also worth noting:
ROSEN, J., dissenting: Consistent with my longstanding opinion that the Kansas offender registration requirements are punitive, I dissent from today's decision. My observations regarding the punitive aspects of KORA are once again explained, this time in greater detail, in my dissent in State v. N.R., 314 Kan. __ (No. 119,796, this day decided).
As I pointed out in my dissent in State v. Stoll, 312 Kan. 726, 737-38, 480 P.3d 158 (2021), I stood with the majority of this court and its position that the registration requirements constitute punishment in State v. Redmond, 304 Kan. 283, 371 P.3d 909 (2016), State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016), Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), and State v. Charles, 304 Kan. 158, 372 P.3d 1109 (2016). When this holding was overturned, I joined two of my colleagues in dissent in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016). In State v. Shaylor, 306 Kan. 1049, 1053, 400 P.3d 177 (2017), State v. Meredith, 306 Kan. 906, 914, 399 P.3d 859 (2017), and State v. Huey, 306 Kan. 1005, 1010, 399 P.3d 211 (2017), my colleagues and I reiterated our fervent opinion that these requirements are punitive. See also State v. Perez-Medina, 310 Kan. 525, 541, 448 P.3d 446 (2019) (Johnson, J., concurring and dissenting); State v. Marinelli, 307 Kan. 768, 796, 415 P.3d 405 (2018) (Rosen, J., dissenting); State v. Rocheleau, 307 Kan. 761, 767, 415 P.3d 422 (2018) (Beier, J., dissenting).
I opine in N.R, and emphasize it here, that it is time for this court to join the ranks of the many other courts that have rightfully recognized the punitive nature of registration requirements. Slip op. at 38 (citing Does #1-5 v. Snyder, 834 F.3d 696, 705 [6th Cir. 2016]; People v. Betts, No. 148981, 2021 WL 3161828, at *12 [Mich. 2021]; Starkey v. Oklahoma Dep't of Corr., 305 P.3d 1004 [Okla. 2013]; Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 568, 62 A.3d 123 [2013]; Wallace v. State, 905 N.E.2d 371, 379-84 [Ind. 2009]).
Today, I dissent alone. But I stand firm in my belief that the oppressive and onerous requirements of offender registration are punitive. This case presents just another prime example. Consequently, I conclude the retroactive application of the registration requirements to Davidson violated the Ex Post Facto Clause. See Shaylor, 306 Kan. at 1053 (Beier, J., dissenting). I would reverse Davidson's conviction.
