Kentucky Supreme Court sex offender residency case appealled

On October 1, the Kentucky Supreme Court joined those of both Ohio and Indiana in holding that sex offender residency laws could not be applied retroactively. But, by the end of the month, articles were appearing that probation & parole officers were being told to essentially ignore that decision and view an offender's living within 1,000 feet of a school, day-care center or playground as a violation of their probation or parole-- even if their crime was committed before the statute was strengthened in 2006-- because the Kentucky Attorney General’s Office was considering appealing the decision. (Here)

An article on Oct. 29th. indicated that the Kentucky Dept. of Corrections' position was that the Court's decision on Oct. 1 was not a final ruling since Attorney General Jack Conway had filed a motion to stay with the Court. That motion, though, was denied yesterday.

An article this morning related that Conway will be asking the U.S. Supreme Court for a stay to review the Kentucky high court's ruling and that that office has until Dec. 30 to file its request with the nation's high court. A spokeswoman for the Attorney General's office commented that they were "hopeful that the Supreme Court would take the case and grant the stay because the issue had implications for many other states, and courts in some other states have ruled differently than Kentucky’s Supreme Court." (Here)

In its analysis the Kentucky Supreme Court did note that while the Indiana and Ohio Supreme Courts held retroactive residency requirements were unconstitutional, and Mikaloff v. Walsh, in Ohio's Northern District Court, had held that retroactive application of Ohio's residency restriction statute violated the federal ex post facto clause, it, on the other hand, also noted that Doe v. Miller, 405F.3d 700 (8th Cir.2005) ; State v. Seering, 701 N.W2d 655 (Iowa 2005); Thompson v. State, 603 S.E.2d 233(Ga.2O04) ; People v. Leroy, 828 N.E.2d 769 (Ill. App. Ct. 2005), and Lee v. State, 895 So.2d 1038 (Ala. Crim. App. 2004) uphold residency restriction statutes against ex post facto challenges.

The Kentucky Department of Corrections, meanwhile, has now also released a statement saying that because Monday's ruling by the Kentucky Supreme Court is a final order, probation and parole officers are being notified that sex offenders who committed their crimes prior to July 12, 2006, are no longer subject to the residency restrictions of the 2006 law.