State v. Scott
| Decision Date | 29 May 1998 |
| Docket Number | No. 75684,75684 |
| Citation | 265 Kan. 1,961 P.2d 667 |
| Parties | STATE of Kansas, Appellee, v. Clifford A. SCOTT, Appellant. |
| Court | Kansas Supreme Court |
SYLLABUS BY THE COURT
1. The Cruel and Unusual Punishment Clauses of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights are nearly identical and are to be construed similarly.
2. In deciding whether a punishment is cruel and unusual, we consider whether the method and effect of the punishment is inhumane, barbarous, inherently cruel, shocking, unacceptable, or offends human dignity.
3. It is the legislature's prerogative to make policy decisions and specify punishments for crime. The legislature has the right to determine that sex offenders pose a unique threat to society such that they are subject to registration and public disclosure requirements when other types of offenders are not.
4. Under the facts of this case, the punitive effect of the registration and notification provisions of the Kansas Sex Offender Registration Act resulting from an interest in public safety are not so disproportionate to defendant's violent, sexually motivated crime that such registration and public access is deemed inhumane, shocking, barbarous, or contrary to fundamental notions of human dignity so as to constitute cruel and unusual punishment.
Rick Kittel, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the supplemental and reply briefs for appellant; Edward G. Collister, Jr., Special Appellate Defender, was on the brief for appellant.
Carla J. Stovall, Attorney General, argued the cause, and Nancy Siples Brumbeloe, Assistant District Attorney, and Joan M. Hamilton, District Attorney, were with her on the brief for appellee; Kelli L. Newton, Assistant Attorney General, was on the supplemental brief for appellee.
Kelly A. Feyh, assistant attorney general, was on the brief for amicus curiae, attorney general, Carla J. Stovall.
This first impression case in Kansas reviews a decision by the Court of Appeals, State v. Scott, 24 Kan.App.2d 480, 947 P.2d 466 (1997), holding the public access provisions of the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq. constitute cruel and unusual punishment. Clifford Allen Scott was convicted of attempted aggravated sexual battery and placed on probation. Scott appealed the trial court's order that he register pursuant to the provisions of the KSORA. The Court of Appeals determined that in Scott's case the public access provisions of the KSORA were cruel and unusual and ordered that his registration should not be open to inspection by the public or subject to the Kansas Open Records Act, K.S.A. 45-215 et seq.
Factual statement
In July 1995, Scott brought alcohol to the apartment of a former co-employee (J.R.). The two drank and watched T.V. for awhile, until J.R. went to her room to go to bed, leaving Scott to sleep on the sofa. J.R. awoke to find Scott in her room asking to have sex with her and attempting to fondle her.
J.R. repeatedly told Scott not to touch her and that she did not want to have sex with him. Scott persisted and attempted to remove J.R.'s nightclothes. When J.R. resisted Scott's advances, he dragged her from her room and started beating, kicking, and stomping her.
The police were notified. The two officers dispatched to J.R.'s apartment found her with a bloody nose and dressed in a robe spotted with blood. J.R. stated Scott had hit her, fondled her, and requested sex. J.R. went to an emergency room where she was diagnosed with numerous fractured ribs. J.R. also suffered bruises and pain to her face, arms, and legs.
Scott was charged with aggravated sexual battery, K.S.A. 21-3518(a)(1), a severity level 5, person felony, and aggravated battery, K.S.A. 21-3414(a)(1)(C), a severity level 7, person felony. J.R. appeared in court and testified regarding Scott's attack.
Scott ultimately entered into a plea agreement whereby he pled no contest to an amended count of attempted aggravated sexual battery, K.S.A. 21-3301 and K.S.A. 21-3518(a)(1), a severity level 7, person felony. The State dismissed the aggravated battery charge. Before accepting Scott's plea, the court informed him he would be required to register as a sex offender. Scott acknowledged he understood this.
At the sentencing hearing, J.R. made the following statement:
Scott was sentenced to 14 months in the custody of the Secretary of Corrections. Yet, because he fell within presumptive probation, he was placed on probation for 24 months. The court indicated the legislature had severely limited the court's discretion to make a different sentence, stated it sympathized with J.R.'s request for Scott's imprisonment, and declared Scott's probation would be rigorously supervised. Despite Scott's constitutional objections, the court ordered him to register as a sex offender under the KSORA.
Scott appealed the order for his registration as a sex offender under the KSORA, alleging the public disclosure provisions were unconstitutional. Scott's arguments on appeal included only his contentions that the registration and disclosure requirement constituted double jeopardy and cruel and unusual punishment. Scott has failed to make any record concerning the effect registration and the public disclosure has had upon him, and we are limited to the record before us.
The Court of Appeals rejected Scott's double jeopardy argument but decided the public access element of the KSORA violated the prohibition against cruel or unusual punishment in § 9 of the Kansas Constitution Bill of Rights.
We granted the State's petition for review. Scott did not request review of the Court of Appeal's determination that the registration provision did not violate the prohibition against double jeopardy. Therefore, our analysis is limited to the single issue of whether the KSORA violates the constitutional restrictions prohibiting cruel and unusual punishment. We hold it does not.
The constitutionality of a statute is a question of law, over which we exercise an unlimited standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). When reviewing the constitutionality of a statute, we must keep in mind the following:
State v. Bryan, 259 Kan. 143, Syl. p 1, 910 P.2d 212 (1996).
Scott has asserted that the KSORA constitutes cruel or unusual punishment as applied to him. K.S.A. 22-4904 of the KSORA provides:
"(a) Within 15 days of the sex offender coming into any county in which the sex offender resides or is temporarily domiciled for more than 15 days, the sex offender shall register with the sheriff of the county."
K.S.A. 22-4907 requires that the registration include the offender's name, date of birth, offense or offenses committed, date of conviction or convictions, places of conviction, photograph, fingerprints, and social security number. The provisions critical for this appeal are those permitting public access of the registration information, which are set forth in K.S.A. 22-4909 as follows:
"The statements or any other information required by this act shall be open to inspection in the sheriff's office by the public and specifically are subject to the provisions of the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto."
The Eighth Amendment to the United States Constitution, applicable to the states pursuant to the Fourteenth Amendment, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Section 9 of the Kansas Constitution Bill of Rights declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted."
Although discussing the prohibition against cruel and unusual...
To continue reading
Request your trial
-
State v. Genson, No. 121,014
...high rate of recidivism among sex offenders and the difficulty in reliably determining who might reoffend. See State v. Scott , 265 Kan. 1, 9-10, 961 P.2d 667 (1998) ; see also State v. Mossman , 294 Kan. 901, 909-10, 281 P.3d 153 (2012) (noting penological concerns about recidivism among s......
-
State v. Scott, No. 83,801.
...court has consistently declined to interpret that provision more broadly than the Eighth Amendment. The State cites State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1998); State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000); and State v. Kleypas, 272 Kan. at 1051, 40 P.3d 139. In Scott, involvin......
-
State v. Kleypas
...length, not the nature, of his sentence. Finally, this court severely limited the application of the Freeman factors in State v. Scott, 265 Kan. 1, 961 P.2d 667 (1998). Scott claimed the public access provisions of the Kansas Sex Offender Registration Act constituted cruel and unusual punis......
-
State v. Schad
...the trial court's order was unduly severe and did not reasonably relate to the protection of the public. See State v. Scott, 265 Kan. 1, 9-10, 14-15, 961 P.2d 667 (1998) (recognizing that legislature has enacted sexual offender registration requirements so that public has opportunity to def......
-
Liberty interests in the preventive state: procedural due process and sex offender community notification laws.
...see Roe v. Farwell, 999 F. Supp. 174, 193 (D. Mass. 1998); Doe v. Kelley, 961 F. Supp. 1105, 1112 (W.D. Mich. 1997)' State v. Scott, 961 P.2d 667, 676 (Kan. 1998); Doe v. Poritz, 662 A.2d 367,405 (NJ. For examples of unsuccessful ex post facto and double jeopardy claims, see Russell v. Greg......
-
The Kansas Bill of Rights: Glittering Generalities or Legal Authority
...Smith & Griggsby, 155 Kan. 588, 594, 127 P.2d 518 (1942). 16. People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992). 17. State v. Scott, 265 Kan. 1, 4, 961 P.2d 667 (1998). 18. Garrison v. Louisiana, 379 U.S. 64, 72 (1964). 19. Board of Wyandotte County Comm'rs v. Kansas Ave. Properties, 2......
-
K.s.a. 22-4901 Et Seq. - Offender Registration in Kansas
...2d at 482. 52. 260 Kan. 669. 53. 223 Kan. 362, 367, 574 P.2d 950 (1978). 54. 24 Kan. App. 2d at 485-86. 55. Id. at 487. 56. State v. Scott, 265 Kan. 1, 15, 961 P.2d 667 (1998). 57. Id. at 9. 58. Id. 59. Id. at 10. 60. Id. at 15. 61. 266 Kan. 986, 975 P.2d 259 (1999). 62. K.S.A. 21-3510(a)(1......
-
The History and Future of Offender Registration in Kansas
...669, 933 P.2d 1024 (1996); Due Process, State v. Wilkinson, 269 Kan. 603, 9 P.3d 1 (2000); Cruel and Unusual Punishment, State v. Scott, 265 Kan. 1, 961 P.2d 667 (1998). [69] U.S. Const. art. I, § 9, cl. 3 (prohibiting Congress); U.S. Const. art. I, § 10, cl. 1 (prohibiting states). [70] Mo......