State v. Petersen-Beard

304 Kan. 192

377 P.3d 1127

STATE of Kansas, Appellee,

v.Henry PETERSEN–BEARD, Appellant.

No. 108,061.

Supreme Court of Kansas.

April 22, 2016.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Christina M. Trocheck, first assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by STEGALL, J.:

Henry Petersen–Beard challenges his sentence to lifetime postrelease registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen–Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. 283, 371 P.3d 900 (this day decided), State v. Buser, 304 Kan. 181, 371 P.3d 886 (this day decided), and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (No. 110,318, this day decided).

Factual and Procedural Background

Petersen–Beard pled guilty to and was convicted of one count of rape for having sexual intercourse with a 13–year–old girl when he was 19 years old. Prior to sentencing, he filed motions asking the district court to depart from the presumptive guidelines sentence and to declare KORA's requirement of lifetime registration unconstitutional under § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. The district court granted Petersen–Beard's motion for a downward durational departure but denied his request to find KORA's lifetime registration requirements unconstitutional. As such, the district court sentenced Petersen–Beard to 78 months' imprisonment with lifetime postrelease supervision and lifetime registration as a sex offender—the lowest sentence permitted by law.

Petersen–Beard appealed the district court's ruling to the Court of Appeals but did not prevail. State v. Petersen–Beard, No. 108,061, 2013 WL 4046444 (Kan.App.2013) (unpublished opinion). Petersen–Beard now brings his appeal to this court reprising the arguments he made below that the requirement in Kansas law of lifetime registration as a sex offender is unconstitutional. We granted Petersen–Beard's petition for review pursuant to K.S.A. 20–3018(b), exercise jurisdiction pursuant to K.S.A. 60–2101(b), and affirm.

AnalysisStandard of Review

This appeal requires us to decide whether KORA's mandatory lifetime sex offender registration as set forth in K.S.A. 22–4901 et seq., runs afoul of either the Eighth Amendment's prohibition against “cruel and unusual punishments” or § 9's prohibition against “cruel or unusual punishment.” The constitutionality of a statute is a question of law over which this court exercises plenary review. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012). “We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity.” State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). “It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.” State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).

Typically, challenges arising under either the Eighth Amendment or § 9, or both, attack criminal sanctions against persons convicted of crimes as being cruel and/or unusual. Such is the case with Petersen–Beard's argument here. However, as the State points out, there remains a threshold question as to whether the challenged sanction is punishment at all for purposes of either the Eighth Amendment or § 9, or is rather a civil and nonpunitive sanction. Here, the State claims that KORA's requirement of lifetime sex offender registration in Petersen–Beard's case is not punishment at all and is therefore not subject to our normal cruel and unusual analysis. For the reasons set forth below, we agree.

KORA's lifetime sex offender registration requirements are not punishment for purposes of applying the United States Constitution.

In Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court set out the following framework for analyzing whether a legislature's statutory scheme is punitive:

“We must ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ Kansas v. Hendricks, 521 U.S. 346, 361 [117 S.Ct. 2072, 138 L.Ed.2d 501] (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘ “so punitive either in purpose or effect as to negate [the State's] intention” to deem it “civil.” ’ Ibid. (quoting United States v. Ward, 448 U.S. 242, 248–249 [100 S.Ct. 2636, 65 L.Ed.2d 742] (1980) ). Because we ‘ordinarily defer to the legislature's stated intent,’ Hendricks, supra, at 361 , ‘ “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,’ Hudson v. United States, 522 U.S. 93, 100 [118 S.Ct. 488, 139 L.Ed.2d 450] (1997) (quoting Ward, supra, at 249, ); see also Hendricks, supra, at 361 ; United States v. Ursery, 518 U.S. 267, 290 [116 S.Ct. 2135, 135 L.Ed.2d 549] (1996) ; United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 [104 S.Ct. 1099, 79 L.Ed.2d 361] (1984).”

This framework is often referred to as the “intent-effects” test. Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir.2001). In Smith v. Doe, the Supreme Court reasoned that a “conclusion that the legislature intended to punish” would resolve the question of the punitive nature of the statutory scheme “without further inquiry into its effects.” 538 U.S. at 92–93, 123 S.Ct. 1140. Applying the intent-effects test to KORA's lifetime registration provisions, we have held today in Thompson that our legislature intended those provisions of KORA to be a nonpunitive and civil regulatory scheme rather than punishment. See Doe v. Thompson, 304 Kan. at 332, 373 P.3d 750 (No. 110,318, this day decided), op. at 773 (citing State v. Myers, 260 Kan. 669, 923 P.2d 1024 [1996] [lifetime postrelease registration under Kansas Sex Offender Registration Act was nonpunitive in nature], cert. denied 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 [1997] ). We agree and do not disturb that aspect of Thompson or its companion cases. See State v. Redmond, 304 Kan. at 286–88, 371 P.3d at 903 (this day decided); State v. Buser, 304 Kan. at 184–86, 371 P.3d at 889 (this day decided).

Because the legislature did not intend for KORA's lifetime sex offender registration scheme to be punishment, we must next turn to the effect of those provisions to determine whether, by “ ‘ “the clearest proof,” ’ ” those effects “ ‘override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’ ” Smith, 538 U.S. at 92, 123 S.Ct. 1140. The Supreme Court in Smith utilized the seven factors identified in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), to decide whether the effects of the legislative enactment negated and overrode the legislature's intent to establish a civil regulatory scheme. Smith, 538 U.S. at 97, 123 S.Ct. 1140. The Mendoza–Martinez factors are:

“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....” Mendoza–Martinez, 372 U.S. at 168–69, 83 S.Ct. 554.

While in Smith, the Mendoza–Martinez factors were applied to determine whether a lifetime registration scheme was punishment for ex post facto purposes rather than for purposes of the Eighth Amendment, there exists no analytical distinction between or among the different constitutional contexts in which the question of punishment versus a civil regulatory scheme can arise. “The common inquiry across the Court's Eighth Amendment, ex post facto, and double jeopardy jurisprudence is determining whether the government's sanction is punitive in nature and intended to serve as punishment.”

Hinds v. Lynch, 790 F.3d 259, 264 n. 5 (1st Cir.2015) (citing Mendoza–Martinez ); see also United States v. Under Seal, 709 F.3d 257, 263–64 (4th Cir.2013) (using Mendoza–Martinez factors to determine federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. (2012), is nonpunitive for purposes of the Eighth Amendment); Myrie v. Commissioner, N.J. Dept. of Corrections, 267 F.3d 251, 262 (3d Cir.2001) (applying Mendoza–Martinez factors to an Eighth Amendment “Excessive Fines” Clause challenge); Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir.1999) (using Mendoza–Martinez factors to determine Tennessee's Sex Offender Registration and Monitoring Act was nonpunitive under the Eighth Amendment); Hare v. City of Corinth, MS., 74 F.3d 633, 651–52 (5th Cir.1996) (Dennis, J., concurring) (using Mendoza–Martinez factors to evaluate whether a pretrial detainee was punished under the Eighth Amendment); People v. Adams, 144 Ill.2d 381, 388, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991) (court would have used Mendoza...