“But it couldn’t be more obvious.”
–Non-lawyers on what the Constitution means, Daily, 1789-2016
It’s not that lawyers disagree with the premise that the law should be clear, precise and comprehensible to everyone. I know, you think we keep it obtuse so that you have to pay us to explain it to you. Nice tin foil hat. And you read the words, just like we read the words, and it’s all obvious to you.
Why doesn’t everybody else see it when you can see it so clearly?
Henry Petersen-Beard challenges his sentence to lifetime post-release 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. ___, ___ P.3d ___ (No. 110,280, this day decided),State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).
The cases address the huge question of whether the sex offender registry is punitive, and thus subject to prohibition under the constitutional ex post facto clause, because the Constitution says you can’t enhance a punishment after the fact. Before lunch, it was punitive. After lunch, not so much.
The problem arose because one seat at the Kansas Supreme Court was filled by one guy for three cases, and another for the one after lunch. The Court was split, three to three, on the issue, so that last guy was the tie breaker. The judge for the first three cases went one way. The judge for the last case went the other way.
Because the judge on the last case was the new Supreme Court justice, while the other one was only sitting by designation, a seat-warmer if you will, the one case overruled the other three. Boom, the law is now settled.
In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.
The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.
But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall. That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.
We now know that, in Kansas, a person who has served his sentence can be subject to onerous requirements and expenses imposed by legislation enacted yesterday or tomorrow designed to make legislators look all tough on sex offenders and make the sex offender whose sentence is long since completed miserable. We now know that it’s not punitive. It’s not punishment. It’s all civil-y, and thus outside the scope of the ex post facto clause, because the last guy in the chair, the newest judge, said so.
Words are a funny thing. They mean different things to different people, and even though you believe with your heart and soul that you know what words mean, some other guy believes with his heart and soul that he knows what they mean too, and they mean something entirely different than what you believe. But it gets worse.
Words aren’t scalpels, so sharp and precise in their meaning that there can be no question, no dispute, what they say. We try. We try to make words as clear as possible. Sometimes, anyway. Other times, we try to make them vague enough to cover a broad swathe of potential things, some things we know and some things we can’t even anticipate, just to be sure that the words do the job we intended them to do, whatever that may be. But it gets worse.
No matter how sincerely we try to sharpen our words, there will always be something, some concept or conduct, that escaped everybody’s notice. People are remarkable in their ability to come up with novel ways of wreaking havoc, and despite our best intentions and efforts, our words failed to capture what some guy came up with.
Words are just words, and so lawyers argue over their meaning, and judges make rulings about what the words mean. And this inadequacy has never been more obvious than when a Supreme Court of a state overrules itself on the same day.
There is a legal doctrine called stare decisis, let the decision stand. Precedent is based on the doctrine, since we would never know what was lawful, what to do if interpretation of the law, the words that are so obvious to you, changed daily. So once a decision is made, we try desperately to stick with it, so that the law provides some clarity, some reliability, and we know how to conduct ourselves from moment to moment. The precedent may suck, but the absence of precedent leaves us clueless. We’re then left to decide what words mean, each of us on our own, to figure out whether engaging in conduct is perfectly lawful or will land our butts in prison.
And then, when we come out, maybe we’ll be subject to entirely new, heretofore non-existent laws that make life untenable, because one new judge on the Kansas Supreme Court decided that punitive means whatever Humpty Dumpty says it does. Isn’t it obvious?