I don’t complain about the sentence I received as a result of my crime. I really don’t. I deserved every day – every minute – every second of prison time I served. And I also understand that my crime (and sentence) require additional punishments. I have two post-release conditions of my sentence: 25 years as a registered offender and parole for the rest of my life. And perhaps I deserve all of that too.
But here’s the problem: There’s a chance that the duration of both of those post-release requirements could be unconstitutional.
There is a clause in the United States Constitution known as the Ex Post Facto clause, which essentially states that laws cannot be enforced retroactively. Article One; Section Nine; C.3. states: “No Bill of Attainder or ex post facto Law shall be passed.” And this concept is reiterated again in Section Ten. So twice in the United States Constitution, it is prohibited to pass a law that is enforced retroactively. Laws are enforceable only upon the crimes that occur while the laws are in their current status. If that status changes, they only change from the time of the change, forward. A change cannot be enforced on something done in the past. What occurs in the past is subject to the laws in place at the time of the action.
Here’s a perfect example:
In 2005, Dennis Rader, the serial killer known as BTK, was finally caught after being at-large for decades. But when he was finally sent to trial, the most harsh sentence he could receive was Life in Prison. Right now, the Death Penalty in Kansas is legal. However, it was illegal at the time that Dennis Rader committed his crimes. And according to the United Stated Constitution, BTK has to be sentenced under the guidelines that were in place at the time of his crimes in the 70s and 80s – and during that time, Kansas did not allow Capital Punishment. Therefore, even though the Death Penalty was legal at the time of his trial, Dennis Rader’s life was protected by the Constitution because when he murdered those people, the Death Penalty was prohibited. And since Capital Punishment was not legal in Kansas until April 23, 1994, Dennis Rader could not be executed for his crimes. The Ex Post Facto clause of the Constitution required the prosecutors only apply the laws that were in place at the time of his crimes, not at the time of his trial.
My crime – the crime to which I fully admit – was committed in January of 2009. According to the Kansas Offender Registration Act (KORA) as well as the sentencing guidelines and requirements in place in 2009, had I been convicted immediately following my crime, I would have received a similar prison sentence to what I received, but my post-release supervision (parole) would have been ten years and my registration duration would have been fifteen years. However, in 2011, KORA was changed and the new requirements became twenty-five years of registration and lifetime parole. And I was subsequently arrested, charged, and convicted in 2012. But here’s the thing: I was sentenced under the 2012 requirements, not the 2009 requirements, as the United States Constitution requires. So, by law, my duration of parole should be ten years and my duration of registration should be fifteen years.
However, I have little-to-no hope that this will change for me. There is such an ignorant fear and hate of sex offenders in this country that no judge or politician would ever side with anyone seeking justice for someone convicted of a sex crime. Granted, I’ve done some pretty fucking horrible things in my life; but I’m not asking for leniency – I’m only asking for the law to be applied justly. But that simply will not happen. The Kansas Supreme Court tried to end-around the clause recently, and in the process, ended up handing down several conflicting decisions on the matter in the same day. This was apparently noteworthy enough to catch the attention of Kansas Attorney General Derek Schmidt, who instructed the court to clarify (and change, if necessary) their rulings in the interest of justice. In a public statement the day of the rulings, Schmidt said in a public statement, “We continue to study today’s peculiar group of Kansas Supreme Court decisions involving the Kansas Registration Act. The court in part issued three decisions and then immediately overruled them. In the coming days, we will endeavor to discern what the court actually has done and will assess all options for next steps.” Clearly, Mr. Schmidt saw the errors in play and sought clarification, part of which directly impacts the laws that would govern whether or not I am to serve the post-release sentencing requirements of 2009 when my crime was committed or 2012 when I was sentenced.
In one case decided on that day, Doe v. Thompson, et al., the Kansas Supreme Court decided that the plaintiff, “John Doe,” a registered sex offender from Johnson County whose registration was extended in 2011, would only be subject to the registration requirements effective when his crime was committed – which is exactly what the Constitution says should be the case. But on the very same day, in a different case, State v. Petersen-Beard, the Kansas Supreme Court barred the decision in Doe v. Thompson from applying to any other registered offender in the exact same situation as “John Doe.” Essentially, the Court handed down two decisions on one topic with two opposing results; evidently, the decision in the Doe v. Thomson case would only apply to “John Doe” and no one else, as though his situation was somehow unique. Thus, according to the Kansas Supreme Court, only one person receives the full protection of the Constitution.
Here’s a little more irony: The attorneys who argued the case before the Kansas Supreme Court in Doe v. Thompson were from the same law firm as my defense attorney in 2012 who successfully lobbied to have my potential prison time cut in half (thanks, in-part, to the incompetence of the prosecutor). But when I inquired about assistance with my sentencing issues, I found on the firm’s website that they “will no longer be offering consultations to individuals seeking general advice about their KORA obligations.” So here I am, stuck.
These judges don’t care about the actual lives of the people they are impacting with their cases and decisions. Sure, criminals hurt people, and for that, we deserved to be punished. But the legislature’s desire for vengeance, coupled with the indifference of apathy and influenced by the politics of elections, can bring about unintended consequences for those of us who have served our time and only seek to move on as better people. Judges don’t care who they hurt, even if one of those is a ten-year-old girl whose only mistake was having a father who lived as an out-of-control sex addict.
I can never go to my daughter’s school performances or science fairs or sporting events. I can never attend a school function or a graduation – nothing. Why? Because of my crime, because of my status, because of my restriction. Here’s the kicker: Even my parole officer – who knows every detail about everything – knows that I’m absolutely no threat to anyone. But the rules say that I can’t go. So I can’t. No exceptions.
Do I have a right to complain? Nah, not really. If I didn’t want to be in this position, I shouldn’t have done what I did in the first place. But what people don’t seem to grasp (or, inversely, seem to enjoy) is that being a registered offender is prison beyond prison. It’s a Scarlet Letter. Is it deserved? Perhaps. But think about this: If someone is such a danger to others that they must be monitored by law enforcement and the public at all times, why was that person even let out of prison?
Here’s my theory: The legislation behind the KORA is not driven by reality or justice or facts or statistics. Did you know sex offenders have the lowest recidivism rate of any crime other than murder? And the only reason murder has a lower rate is simply because many murderers are never released from prison. As I previously wrote in “Be Afraid. Be Very Afraid,” the sex offender recidivism rate is approximately 4.3% (and I’ve been told that this number may err on the high side). But according to the National Institute of Justice, “Property offenders were the most likely to be rearrested, with 82.1 percent of released property offenders arrested for a new crime compared with 76.9 percent of drug offenders, 73.6 percent of public order offenders and 71.3 percent of violent offenders.” And an even more intriguing factual statistic, 95% of all sex crimes are committed by people who are not registered sex offenders. The registry only serves to waste money and feed irrational fears. But wasting money and feeding irrational fears are two of the most effective ways for politicians to get elected, and that’s exactly the prime purpose of the registry. A politician who appears tough on crime – specifically sex offenders – is considered strong and gallant and powerful and proactive. But it’s just a tool to feed the fears of the sheep who flock to the voting booths and press the button for the candidate who can fill their heads with as much fear as possible, then convince them that their vote will protect them. This is how the contemporary American political landscape takes its shape. This is how the system works, pure and simple.
But let’s be honest, there’s nothing I can do about any of this. Shit, I can’t even vote anymore. Did my crime cost me my freedom? Yes – for 763 days. But I’m still in prison – contained by the practical limitations of wearing that Scarlet Letter. And beyond that, it’s also cost me my right to vote; it’s cost me my right to bear arms; and it’s cost me my rights to Constitutional Protection and Due Process.
I don’t even feel like an American anymore. I really don’t.
Like Howard W. Campbell, I have become “a nationless person by inclination.”