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Date: 03-11-2021
Case Style:
STATE OF KANSAS v. DANIEL EARL GENSON III
Case Number: 121,014
Judge: Kathryn A. Gardner
Court: IN THE COURT OF APPEALS OF THE STATE OF KANSAS
Plaintiff's Attorney: Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Topeka, KS - Criminal defense attorney represented Daniel Earl Genson III with appealing his conviction for failing to register under the Kansas Offender Registration Act (KORA).
The State charged Genson with failing to register under KORA after he did not
register in November 2017. In response, Genson notified the district court of his intent to
present a defense of mental disease or defect under K.S.A. 22-3219. In a motion to
continue, Genson explained that he was sent to Osawatomie State Hospital on December
3, 2017—"less than 3 days after the alleged violation." The State objected to the use of an
insanity defense, arguing that failing to register under KORA was a strict liability crime
that does not allow for an insanity defense as prescribed. See K.S.A. 2019 Supp. 21-5209.
Genson countered that a KORA violation is not a strict liability offense but even if it
were, evidence of his mental illness was admissible to show why he failed to register in
November. But the district court agreed with the State and ruled that Genson could not
present a mental disease or defect defense at trial of a strict liability crime.
At the beginning of trial, the State moved to bar evidence of Genson's mental
health. Genson responded that such exclusion of relevant evidence would infringe on his
right to present a defense and on the jury's right to determine criminal liability. Genson
also argued that it was unconstitutional to make a KORA violation a strict liability crime.
But the district court sustained the State's motion to exclude the evidence of mental
illness, finding that a violation for failing to register under KORA was a strict liability
offense that did not require proof of a mental state. Thus a mental defect defense under
K.S.A. 2019 Supp. 21-5209 was inapplicable.
At trial, the State called Shannon Ascher, the sole witness to testify. Ascher
worked as an investigations secretary for the Riley County Police Department. She 4
testified that Genson first registered as an offender on August 29, 2017. On that day,
Ascher told Genson of the law and the registration requirements that he had to follow.
She gave him a brochure that explained the registration requirements. She reviewed the
whole pamphlet with Genson and marked on it the dates on which he was required to
register. She also orally told Genson that he needed to register in May, August,
November, and February. She gave him an appointment card for his date to register in
November. She also gave Genson a written acknowledgment form that explained the
registration rules. Genson read through that acknowledgment, initialed each line, and then
signed and dated it.
In addition to requiring Genson to register on the stated months, the documents
required Genson to tell Ascher in person if his address or phone number changed. Ascher
told Genson of that requirement, and Genson complied with that requirement—on
September 18 he reported his new phone number, and on October 9, 2017, he reported his
new address. On both dates, Genson signed and dated acknowledgment forms.
But Genson did not show up for his appointment to register in November. Ascher
tried to call Genson at his phone number and at his mother's, unsuccessfully. Ascher
generally tries to call an offender soon after they miss an appointment, then again near
the end of the month. She did so with Genson but did not reach him. So Ascher had no
contact with Genson in November and Genson never registered in November. Yet
Genson returned to Ascher's office on December 15, 2017, to update his information
because he had missed the month of November. Each time Ascher met with Genson, his
demeanor and actions seemed "normal" to her.
Genson presented no evidence. But before resting he renewed his motion to rely
on a mental disease or defect defense, proffering this evidence:5
• The State had involuntarily committed Genson to Osawatomie State Hospital in
early December after he asked his mother to take him there;
• in the weeks before his commitment, he was not properly medicated for his
mental health issues;
• Ascher knew that under state statute, Osawatomie State Hospital had a duty to
register for its patients' undergoing treatment;
• Genson's competency evaluation showed that he had been diagnosed with
posttraumatic stress disorder, schizophrenia, split personality, depression, and
anxiety; and
• Genson suffered from hallucinations and had a history of involuntary
commitments and suicide attempts.
The court denied Genson's motion to rely on a mental disease or defect defense.
During the instruction conference, Genson proposed a jury instruction that
included a mens rea for failing to register. He asked the court to instruct the jury that a
KORA violation required the State to show the defendant had "intentionally failed" to
register. The district court denied that request and instead followed the Pattern Jury
Instruction, which has no mens rea element for a KORA violation.
The jury convicted Genson of failing to register under KORA. He then moved to
dismiss his conviction as a violation of his due process rights, but the district court denied
that motion.
At sentencing, the district court admitted evidence of Genson's mental health and
granted Genson's motion for a downward departure based in part on Genson's mental
illness. The district court then sentenced him to 24 months' probation and stayed his 24-
month prison term. 6
Genson raises four issues on appeal.
I. DID K.S.A. 2019 SUPP. 21-5209 UNCONSTITUTIONALLY ABOLISH THE INSANITY
DEFENSE BY FORGOING THE MENTAL CAPACITY PRONG OF THE M'NAGHTEN TEST?
Genson first challenges the constitutionality of K.S.A. 2019 Supp. 21-5209, the
mental disease and defect defense. This statute provides: "It shall be a defense to a
prosecution under any statute that the defendant, as a result of mental disease or defect,
lacked the culpable mental state required as an element of the crime charged. Mental
disease or defect is not otherwise a defense." K.S.A. 2019 Supp. 21-5209. Before the
enactment of this statute, Kansas used the M'Naghten rule as the proper test for an
insanity defense. See State v. Lamb, 209 Kan. 453, 472, 497 P.2d 275 (1972); State v.
Nixon, 32 Kan. 205, Syl. ¶ 1, 4 P. 159 (1884) (adopting the M'Naghten rule). Under that
rule, a defendant could not be held criminally liable when he or she did not know the
nature and quality of his or her act or, in the alternative, when he or she did not know
right from wrong with respect to that act. State v. Baker, 249 Kan. 431, 450, 819 P.2d
1173 (1991).
But K.S.A. 2019 Supp. 21-5209 now embraces what is known as the "'mens rea
approach.' The mens rea approach allows evidence of mental disease or defect as it bears
on the mental element of a crime but abandons lack of ability to know right from wrong
as a defense." State v. Kahler, 307 Kan. 374, 400, 410 P.3d 105 (2018), aff'd Kahler v.
Kansas, 589 U.S. __, 140 S. Ct. 1021, 1037, 206 L. Ed. 2d 312 (2020).
Genson argues that K.S.A. 2019 Supp. 21-5209 abolishes the insanity defense,
violating his:
• substantive due process rights under the Fourteenth Amendment to the United
States Constitution and section 18 of the Kansas Constitution Bill of Rights; 7
• jury trial rights under section 5 of the Kansas Constitution Bill of Rights; and
• liberty interests under section 1 of the Kansas Constitution Bill of Rights.
The State responds in part that Kahler defeats Genson's substantive due process
claims. Kahler held that Kansas did not abolish the insanity defense, but "only channels
to sentencing, the mental health evidence that falls outside its intent-based insanity
defense." 140 S. Ct. at 1031. Kahler further held that due process does not require Kansas
to adopt an insanity test that turns on a defendant's moral incapacity:
"We therefore decline to require that Kansas adopt an insanity test turning on a
defendant's ability to recognize that his crime was morally wrong. Contrary to Kahler's
view, Kansas takes account of mental health at both trial and sentencing. It has just not
adopted the particular insanity defense Kahler would like. That choice is for Kansas to
make—and, if it wishes, to remake and remake again as the future unfolds. No insanity
rule in this country's heritage or history was ever so settled as to tie a State's hands
centuries later." 140 S. Ct. at 1037.
Preservation
Genson concedes that he raises the issue of whether K.S.A. 2019 Supp. 21-5209 is
unconstitutional for the first time on appeal. Issues not raised before the district court
generally cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014). Likewise, constitutional grounds for reversal asserted for the first time on appeal
are not properly before the appellate court for review. State v. Daniel, 307 Kan. 428, 430,
410 P.3d 877 (2018). But exceptions may apply when a newly asserted theory involves
only a question of law arising on proved or admitted facts and finally determines the case
or when consideration of the theory is necessary to serve the ends of justice or to prevent
denial of fundamental rights. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). 8
Genson must meet Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34), which
requires an appellant to explain why an issue not raised below should be considered for
the first time on appeal. Litigants who flout this rule risk a ruling that the issue is
improperly briefed and will be considered waived or abandoned. State v. Williams, 298
Kan. 1075, 1085, 319 P.3d 528 (2014). Our Supreme Court requires strict enforcement of
this rule. State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Yet Genson does
little to try to meet this standard—he merely recites the exceptions noted above and
mentions his substantive due process rights, his liberty interest, and his jury-trial right.
The decision to review an unpreserved claim under an exception is a prudential
one, so even when an exception supports a decision to review a new claim, we do not
have to do so. State v. Gray, 311 Kan. 164, 169, 459 P.3d 165 (2020). We decline to
reach the merits of Genson's claim that K.S.A. 2019 Supp. 21-5209 unconstitutionally
abolished the insanity defense.
II. DID THE DISTRICT COURT ERR BY DENYING GENSON'S REQUEST FOR A JURY
INSTRUCTION THAT INCLUDED A MENS REA?
Genson next argues that the district court erred by denying his request to instruct
the jury that it had to find that he "intentionally" failed to register under K.S.A. 2019
Supp. 22-4905(a). Genson now asserts that the district court should have instructed the
jury that it had to find that he "knowingly" failed to register under K.S.A. 2019 Supp. 22-
4905(a). The State maintains that the district court properly denied Genson's request
because a KORA violation is a strict liability crime, so the jury need not determine his
mens rea. 9
Standard of Review and Basic Legal Principles
We follow a four-step analysis when reviewing challenges to jury instructions:
First, we consider the reviewability of the issue from both jurisdiction and preservation
viewpoints, exercising an unlimited standard of review. Next, we apply unlimited review
to determine whether the instruction was legally appropriate. Then, we determine
whether sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, would have supported the instruction. Finally, if the district court erred,
we determine whether the error was harmless, using the test and degree of certainty
provided in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). State v. Murrin, 309 Kan.
385, 391, 435 P.3d 1126 (2019).
As to preservation, the first step, Genson requested a mental culpability instruction
in the district court, asking the court to instruct the jury that it must find that he
"intentionally" failed to register under KORA. Although he now requests a "knowing"
element, his request to the district court is enough to preserve the issue of whether the
district court erred in not requiring a scienter requirement.
In our next step, we ask whether the requested instruction was legally appropriate.
To be legally appropriate, the requested instruction must fairly and accurately state the
applicable law when viewed in isolation and it must be supported by the particular facts
of the case. Murrin, 309 Kan. at 392; see State v. Plummer, 295 Kan. 156, 161, 283 P.3d
202 (2012). Resolution of this issue requires statutory interpretation over which appellate
courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).
The most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be determined. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d
850 (2019). An appellate court must first attempt to ascertain legislative intent through
the statutory language enacted, giving common words their ordinary meanings. State v.
Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). 10
When a statute is plain and unambiguous, an appellate court should not speculate
about the legislative intent behind its clear language, and it should refrain from reading
something into the statute that is not readily found in its words. Ayers, 309 Kan. at 164.
K.S.A. 2019 Supp. 21-5203(e) Unambiguously Defines a KORA Violation as a
Strict Liability Crime.
A culpable mental state is an essential element of all Kansas crimes, "[e]xcept as
otherwise provided" by statute. K.S.A. 2019 Supp. 21-5202(a). "A culpable mental state
may be established by proof that the conduct of the accused person was committed
'intentionally', 'knowingly', or 'recklessly.'" K.S.A. 2019 Supp. 21-5202(a). And "[i]f the
definition of a crime does not prescribe a culpable mental state, a culpable mental state is
nevertheless required unless the definition plainly dispenses with any mental element."
K.S.A. 2019 Supp. 21-5202(d).
K.S.A. 2019 Supp. 22-4903(a)—criminalizing the failure to register—is silent
about mental culpability: "Violation of the Kansas offender registration act is the failure
by an offender . . . to comply with any and all provisions of such act." But our Legislature
fulfilled the exception clause of K.S.A. 2019 Supp. 21-5202(a) by listing strict liability
crimes in K.S.A. 2019 Supp. 21-5203—previously K.S.A. 21-3204. Although K.S.A. 21-
3204 traditionally limited strict liability offenses to misdemeanors and traffic offenses
that clearly indicated a legislative purpose to impose absolute liability, see State v. Lewis,
263 Kan. 843, 858, 953 P.2d 1016 (1998), the Legislature amended that statute effective
July 2011. See L. 2010, ch. 136, § 14.
On that date, the Legislature included certain felonies as strict liability crimes and
added KORA violations under K.S.A. 22-4901 et seq. to the list of strict liability crimes
in K.S.A. 21-5203: 11
"A person may be guilty of a crime without having a culpable mental state if the
crime is:
(a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the
statute defining the crime clearly indicates a legislative purpose to impose absolute
liability for the conduct described;
(b) a felony and the statute defining the crime clearly indicates a legislative
purpose to impose absolute liability for the conduct described;
(c) a violation of K.S.A. 8-1567 or 8-1567a, and amendments thereto [DUI];
(d) a violation of K.S.A. 8-2,144, and amendments thereto [commercial vehicle
DUI]; or
(e) a violation of K.S.A. 22-4901 et seq., and amendments thereto [KORA]."
K.S.A. 2019 Supp. 21-5203.
So a culpable mental state is required "[e]xcept as otherwise provided," and the
Legislature specifically provided by this statute that a violation of KORA is an exception.
Genson argues that K.S.A. 2019 Supp. 21-5203, when read along with K.S.A.
2019 Supp. 21-5202(a), (d), K.S.A. 2019 Supp. 22-4903(a), and K.S.A. 2019 Supp. 22-
4905, fails to "plainly dispense with any mental element" as required under K.S.A. 2019
Supp. 21-5202(a), (d). Genson focuses on the word "may" in K.S.A. 2019 Supp. 21-5203:
"A person may be guilty of a crime without having a culpable mental state" under KORA.
(Emphasis added.) Genson reasons that the use of "may" makes the statute permissive, so
the district court did not have to treat a KORA violation as a strict liability offense.
Because a court may or may not treat a KORA violation as a strict liability offense,
Genson argues, the Legislature failed to "plainly dispense" with the mental culpability
requirement, as is necessary for a strict liability crime.
But another panel of our court recently considered and rejected this same
argument in State v. Stoll, No. 117,081, 2018 WL 4264867 (Kan. App. 2018)
(unpublished opinion), rev. granted 309 Kan. 1353 (2019). The Stoll panel held that
"'[m]ay' in K.S.A. 2017 Supp. 21-5203 is not used in the permissive sense. It's not 12
equivalent to 'A person has permission to be guilty of a crime without a culpable mental
state.' Rather, the 'may' here suggests possibility—a person can be guilty of a crime
without a culpable mental state." 2018 WL 4264867, at *3. Although the Stoll panel
acknowledged that the word "may" could be used in the permissive sense, making it
different from the mandatory "shall," use of the word "may" in K.S.A. 2019 Supp. 21-
5203 does not establish that two or more interpretations of the statute can be fairly made
to create ambiguity. See Glaze v. J.K. Williams, 309 Kan. 562, 564, 439 P.3d 920 (2019).
We agree with the Stoll panel's reading of the use of the word "may" and find that
it is the only fair reading of K.S.A. 2019 Supp. 21-5203(e). Trying to read the statute
another way would create ambiguity where it does not naturally exist.
Genson then argues that K.S.A. 2019 Supp. 22-4905's use of the term
"incapacitation" proves that KORA contemplates the offender have some capacity. That
statute provides:
"Any such offender who cannot physically register in person with the registering law
enforcement agency for such reasons including, but not limited to, incapacitation or
hospitalization, as determined by a person licensed to practice medicine or surgery, or
involuntarily committed pursuant to the Kansas sexually violent predator act, shall be
subject to verification requirements other than in-person registration, as determined by
the registering law enforcement agency having jurisdiction." K.S.A. 2019 Supp. 22-
4905(a). (Emphasis added.)
We disagree with Genson's analysis. This language does not state that
incapacitation is a defense to the crime of failing to register or, conversely, that capacity
is an element of the crime that the State must prove. Instead, the statute simply provides a
method other than in-person registration for incapacitated persons to register. Permitting
an alternative means of registration for incapacitated persons fails to show that KORA 13
offenders must be capacitated in the sense of being morally culpable. Rather, it shows
that even incapacitated persons must meet the verification requirements.
The plain language of the KORA statute shows it is a strict liability crime. And
our court has consistently so held. See, e.g., State v. Gilkes, No. 119,949, 2019 WL
6041504, at *5 (Kan. App. 2019) (unpublished opinion) (noting reason for failing to
register irrelevant due to "strict liability nature" of KORA violation); State v. Bailey, No.
108,551, 2013 WL 3970198, at *1-2 (Kan. App. 2013) (unpublished opinion) (refusing to
address the merits of a defendant's argument that the State presented insufficient evidence
to prove the requisite intent because the defendant "could be found guilty of a violation of
the KORA without having a culpable mental state"); State v. Eden, No. 108,615, 2013
WL 5976063, at *5 (Kan. App. 2013) (unpublished opinion) (finding as of July 1, 2011, a
violation of KORA is a crime for which a person may be guilty without having a culpable
mental state). Those decisions are correct.
Because a KORA violation is a strict liability crime, the district court properly
denied Genson's requested jury instruction for a mens rea element.
III. IS K.S.A. 2019 SUPP. 21-5203(e) UNCONSTITUTIONAL BECAUSE IT CRIMINALIZES
FAILING TO REGISTER UNDER THE KANSAS OFFENDER REGISTRATION ACT WITHOUT
REQUIRING A MENTAL CULPABILITY ELEMENT?
Alternatively, Genson contends that if a KORA violation is a strict liability crime,
the statute that makes it so (K.S.A. 2019 Supp. 21-5203[e]) violates state and federal
substantive due process rights and sections 1 and 5 of the Kansas Constitution Bill of
Rights. K.S.A. 2019 Supp. 21-5203(e) provides that a person may be guilty of a crime
without having a culpable mental state if the crime is a violation of KORA. Genson has
not stated whether his constitutional claim is a facial challenge to the statute or an asapplied challenge.14
Genson raises his sections 1 and 5 claims under the Kansas Constitution Bill of
Rights for the first time on appeal. The State argues that Genson failed to preserve these
issues, and we agree. Although Genson recites exceptions that arguably permit us to
reach the merits of these issues, we decline to do so, mindful that the decision to review
an unpreserved claim under an exception is a prudential one. See Gray, 311 Kan. at 169.
Genson did, however, argue to the district court that K.S.A. 2019 Supp. 21-
5203(e) violated his substantive due process rights. We thus reach the merits of his
argument that making a KORA violation a strict liability crime violates his substantive
due process rights under the Fourteenth Amendment and section 18 of the Kansas
Constitution Bill of Rights.
Kansas courts generally interpret provisions of our Kansas Constitution the same
as the United States Supreme Court's interpretation of corresponding provisions of the
United States Constitution. We do so here, noting that Genson makes no distinction
between the state and federal provisions. See State v. Finley, 273 Kan. 237, 242, 42 P.3d
723 (2002) (rejecting defendant's argument that we should give more protection under
our state Constitution's Due Process Clause than is afforded under the Fourteenth
Amendment to the United States Constitution).
The Fourteenth Amendment to the United States Constitution states, in pertinent
part, that no State shall "deprive any person of life, liberty, or property without due
process of law." "'Due process' emphasizes fairness between the State and the individual
dealing with the State, regardless of how other individuals in the same situation may be
treated." Ernest v. Faler, 237 Kan. 125, 129, 697 P.2d 870 (1985) (quoting Ross v.
Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 41 L. Ed. 2d 341 [1974]). Substantive due 15
process has been described as protection from arbitrary government action. Darling v.
Kansas Water Office, 245 Kan. 45, 51, 774 P.2d 941 (1989).
"In addition to guaranteeing fair procedures, the Due Process Clause of the Fourteenth
Amendment 'cover[s] a substantive sphere as well, barring certain government actions
regardless of the fairness of the procedures used to implement them.' Lewis, 523 U.S. at
840 (quotation omitted). This substantive component guards against arbitrary legislation
by requiring a relationship between a statute and the government interest it seeks to
advance. If a legislative enactment burdens a fundamental right, the infringement must be
narrowly tailored to serve a compelling government interest. Washington v. Glucksberg,
521 U.S. 702, 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). But if an enactment
burdens some lesser right, the infringement is merely required to bear a rational relation
to a legitimate government interest. [521 U.S.] at 728; Reno v. Flores, 507 U.S. 292, 305,
113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) ('The impairment of a lesser interest . . . demands
no more than a "reasonable fit" between governmental purpose . . . and the means chosen
to advance that purpose.'); Seegmiller v. LaVerkin City, 528 F.3d 762, 771-72 (10th Cir.
2008) ('Absent a fundamental right, the state may regulate an interest pursuant to a
validly enacted state law or regulation rationally related to a legitimate state interest.'
(citing Reno, 507 U.S. at 305))." Dias v. City and County of Denver, 567 F.3d 1169, 1181
(10th Cir. 2009).
The necessary elements of a substantive due process claim depend on whether the
claim is based on an executive or legislative act. See Dias, 567 F.3d at 1182. Genson's
claim is based on a legislative act. We exercise unlimited review over this question of
statutory interpretation and a statute's constitutionality. Alvarez, 309 Kan. at 205
(statutory interpretation); State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018)
(statute's constitutionality). We must interpret a statute in a manner that renders it
constitutional if there is any reasonable construction that will maintain the Legislature's
apparent intent. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). We presume
statutes are constitutional and must resolve all doubts in favor of a statute's validity.
Gonzalez, 307 Kan. at 579. But see Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132-33, 16
442 P.3d 509 (2019) (changing the" presumption of constitutionality in cases dealing
with 'fundamental interests' protected by the Kansas Constitution"). Because Genson
challenges the statute's constitutionality, he carries the burden of overcoming that
presumption.
The Legislature has the power to enact strict liability crimes.
We begin with the well-established recognition that the Legislature has the
authority to create strict liability crimes:
"That it is within the power of the legislature to forbid the doing of an act and make its
commission criminal, without regard to the intent or knowledge of the doer, is well
established in our jurisprudence. [Citations omitted.]
"The principle is well stated in 1 Wharton's Criminal Law and Procedure, s 17, as
follows:
"'It is within the power of the legislature to declare an act criminal irrespective of
the intent or knowledge of the doer of the act. In accordance with this power, the
legislature in many instances has prohibited, under penalty, the performance of
specific acts. The doing of the inhibited act constitutes the crime, and the moral
turpitude or purity of the motive by which it was prompted and the knowledge or
ignorance of its criminal character are immaterial circumstances on the question
of guilt. The only fact to be determined in these cases is whether the defendant
did the act. . . .' (p. 28)." State v. Logan, 198 Kan. 211, 216, 424 P.2d 565 (1967).
In State v. Avery, 111 Kan. 588, 207 P. 838 (1922), the defendant urged that the criterion
of guilt in criminal law was wrongful intent. The court, in answering the contention, said:
"[T]he Legislature may, for protection of the public interest, require persons to act at their
peril, and may punish the doing of a forbidden act without regard to the knowledge,
intention, motive, or moral turpitude of the doer. There is no constitutional objection to 17
such legislation, the necessity for which the Legislature is authorized to determine. State
v. Brown, 38 Kan. 390, 393, 16 Pac. 259; 16 C. J. 76-78." 111 Kan. at 590.
See Logan, 198 Kan. at 215-16 (upholding strict liability for one who transports or
possesses alcoholic liquor contrary to the provisions of the Liquor Control Act).
More recent cases reflect no change in that time-honored rule. See State v. Merrifield,
180 Kan. 267, 269, 303 P.2d 155 (1956); State v. Creamer, 26 Kan. App. 2d 914, 917-18,
996 P.2d 339 (2000).
The United States Supreme Court has upheld strict liability crimes in limited
circumstances.
We recognize, however, that although the Legislature has the authority to declare
the elements of an offense, it "must act within any applicable constitutional constraints in
defining criminal offenses." Liparota v. United States, 471 U.S. 419, 424 n.6, 105 S. Ct.
2084, 85 L. Ed. 2d 434 (1985).
The United States Supreme Court has rarely addressed the constitutionality of
strict liability crimes. In Morissette v. United States, 342 U.S. 246, 259-60, 72 S. Ct. 240,
96 L. Ed. 288 (1952), the Court discussed its prior strict liability cases:
"It was not until recently that the Court took occasion more explicitly to relate
abandonment of the ingredient of intent, not merely with considerations of expediency in
obtaining convictions, nor with the malum prohibitum classification of the crime, but
with the peculiar nature and quality of the offense. We referred to ' . . . a now familiar
type of legislation whereby penalties serve as effective means of regulation', and
continued, 'such legislation dispenses with the conventional requirement for criminal
conduct—awareness of some wrongdoing. In the interest of the larger good it puts the
burden of acting at hazard upon a person otherwise innocent but standing in responsible
relation to a public danger.' But we warned: 'Hardship there doubtless may be under a 18
statute which thus penalizes the transaction though consciousness of wrongdoing be
totally wanting.' United States v. Dotterweich, 320 U.S. 277, 280-281, 284[, 64 S. Ct.
134, 88 L. Ed. 48 (1943)]."
The Court approved the conclusion in its prior cases upholding strict liability
crimes, United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619 (1922), and
United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922), under the
circumstances there. Morissette characterized the Balint and Behrman offenses as
belonging to a category where the crimes depend on no mental element, but consist only
of forbidden acts or omissions, and relate to regulations that affect public health, safety,
or welfare. 342 U.S at 252-54.
In Balint, the Court overruled the contention that there can be no conviction on an
indictment which makes no charge of criminal intent but alleges only selling a narcotic
forbidden by law. Chief Justice Taft recognized that some statutes require no intent:
"'While the general rule at common law was that the scienter was a necessary
element in the indictment and proof of every crime, and this was followed in regard to
statutory crimes even where the statutory definition did not in terms include it . . . , there
has been a modification of this view in respect to prosecutions under statutes the purpose
of which would be obstructed by such a requirement. It is a question of legislative intent
to be construed by the court. . . .' United States v. Balint, 258 U.S. at 251-52.
"He referred, however, to 'regulatory measures in the exercise of what is called
the police power where the emphasis of the statute is evidently upon achievement of
some social betterment rather than the punishment of the crimes as in cases of mala in se,'
and drew his citation of supporting authority chiefly from state court cases dealing with
regulatory offenses. 258 U.S. at 252." Morissette, 342 U.S. at 258-59.
But Morissette found "[a] quite different question here is whether we will expand the
doctrine of crimes without intent to include those charged here." 342 U.S. at 260. It 19
answered that question negatively, holding that criminal intent is an essential element of
the crime of knowing conversion of Government property. 342 U.S. at 272-73.
Five years later, the United States Supreme Court found a strict liability statute
unconstitutional in Lambert v. California, 355 U.S, 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d
228 (1957). Although that case dealt with a registration statute, Genson does not rely on
Lambert here, and the State distinguishes it.
In Lambert, the Los Angeles Municipal Code made it unlawful for any convicted
person to remain in the city for more than five days without registering with the Chief of
Police. Lambert lived there for over seven years and had been convicted of a felony, yet
had not registered. The Court held: "Where a person did not know of the duty to register
and where there was no proof of the probability of such knowledge, he may not be
convicted consistently with due process." 355 U.S. at 229-30.
The Court held that due process demands that the defendant be on notice that the
conduct may be subject to potential regulation. The Court found the ordinance in Lambert
unconstitutional because the registration law did not provide the kind of notice that would
shift to the defendant the burden to discern the facts and discover the potential regulation.
355 U.S. at 229-30.
The State correctly notes that unlike Lambert, Genson knew he had to register
under KORA, as evidenced by Ascher's unrefuted testimony and Genson's compliance
with his KORA requirements in August, September, and October. And Genson does not
claim lack of notice, which generally raises a question of procedural due process, but
rather a substantive due process violation. So Lambert offers us little guidance.
No specific criteria exist for strict liability crimes.20
More recently, the United States Supreme Court noted that strict liability
crimes bear a generally disfavored status, but may withstand constitutional
requirements in limited circumstances:
"While strict-liability offenses are not unknown to the criminal law and do not
invariably offend constitutional requirements, see Shevlin-Carpenter Co. v. Minnesota,
218 U.S. 57[, 30 S. Ct. 663, 54 L. Ed. 930] (1910), the limited circumstances in which
Congress has created and this Court has recognized such offenses, see e.g., United States
v. Balint, supra; United States v. Behrman, 258 U.S. 280[, 42 S. Ct. 303, 66 L. Ed. 619]
(1922); United States v. Dotterweich, 320 U.S. 277[, 64 S. Ct. 134, 88 L. Ed. 48] (1943);
United States v. Freed, [401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971)], attest to
their generally disfavored status. See generally ALI, Model Penal Code, Comment on §
2.05, p. 140 (Tent. Draft No. 4, 1955); W. LaFave & A. Scott, Criminal Law 222-223
(1972)." United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38, 98 S. Ct. 2864, 57 L.
Ed. 2d 854 (1978).
Genson pushes this analysis further by contending that the United States Supreme
Court has upheld strict liability crimes as constitutional under only three circumstances
which, he asserts, are not met here:
• When the offense carries a slight penalty;
• When the conviction does not lead to substantial stigma; and
• When the statute regulates inherently dangerous or deleterious conduct.
But we find no good authority for the assertion that strict liability crimes are
constitutional only if they meet those three circumstances. Genson cites Shelton v.
Secretary, Dept. of Corrections, 802 F. Supp. 2d 1289, 1298 (M.D. Fla. 2011), a federal
habeas case finding the partial elimination of mens rea as an element of Florida drug
statutes violated due process. True, Shelton stated a strict liability offense "has only been
held constitutional if" one of the three factors above is met. 802 F. Supp. 2d at 1298. But 21
Shelton appears to stand alone in that assertion. And Shelton was reversed. See Shelton v.
Secretary, Dept. of Corrections, 691 F.3d 1348 (11th Cir. 2012) (finding that the district
court applied an improper legal standard for federal habeas review).
We find it unwise and unnecessary to try to define the boundaries of strict liability
crimes because the United States Supreme Court has not done so. Rather, the Court has
specifically declined to take that step:
"Neither this Court nor, so far as we are aware, any other has undertaken to
delineate a precise line or set forth comprehensive criteria for distinguishing between
crimes that require a mental element and crimes that do not. We attempt no closed
definition, for the law on the subject is neither settled nor static." Morissette, 342 U.S. at
260.
Similarly, in Staples v. United States, 511 U.S. 600, 619-20, 114 S. Ct. 1793, 128
L. Ed. 2d 608 (1994), the United States Supreme Court underscored that broader
approach. We do not read Staples, as Genson does, to require that strict liability offenses
fall within one of the three limited categories that the case addressed. Rather, the Court
carefully noted that it was not delineating a precise line or setting forth comprehensive
criteria for distinguishing between crimes that require a mental element and crimes that
do not:
"In short, we conclude that the background rule of the common law
favoring mens rea should govern interpretation of [26 U.S.C.] § 5861(d) in this case.
Silence does not suggest that Congress dispensed with mens rea for the element of §
5861(d) at issue here. Thus, to obtain a conviction, the Government should have been
required to prove that petitioner knew of the features of his AR-15 that brought it within
the scope of the Act.
"We emphasize that our holding is a narrow one. As in our prior cases, our
reasoning depends upon a commonsense evaluation of the nature of the particular device
or substance Congress has subjected to regulation and the expectations that individuals 22
may legitimately have in dealing with the regulated items. In addition, we think that the
penalty attached to § 5861(d) suggests that Congress did not intend to eliminate a mens
rea requirement for violation of the section. As we noted in Morissette: 'Neither this
Court nor, so far as we are aware, any other has undertaken to delineate a precise line or
set forth comprehensive criteria for distinguishing between crimes that require a mental
element and crimes that do not.' 342 U.S., at 260. We attempt no definition here, either.
We note only that our holding depends critically on our view that if Congress had
intended to make outlaws of gun owners who were wholly ignorant of the offending
characteristics of their weapons, and to subject them to lengthy prison terms, it would
have spoken more clearly to that effect. Cf. United States v. Harris, 959 F.2d 246, 261
(CADC), cert. denied 506 U.S. 932 (1992)." Staples, 511 U.S. at 619-20.
See also Lambert, 355 U.S. at 228 (acknowledging that the Court had never articulated a
general constitutional doctrine of mens rea; finding "[t]here is wide latitude in the
lawmakers to declare an offense and to exclude elements of knowledge and diligence
from its definition."); Powell v. Texas, 392 U.S. 514, 535, 88 S. Ct. 2145, 20 L. Ed. 2d
1254 (1968) ("[T]his Court has never articulated a general constitutional doctrine of mens
rea.").
Substantive due process analysis
Nonetheless, we agree that factors similar to those Genson advocates are relevant
to the substantive due process analysis for strict liability crimes.
"In rehearsing the characteristics of the public welfare offense, we, too, have
included in our consideration the punishments imposed and have noted that 'penalties
commonly are relatively small, and conviction does no grave damage to an offender's
reputation.' Morissette, 342 U.S. at 256. We have even recognized that it was '[u]nder
such considerations' that courts have construed statutes to dispense with mens rea."
Staples, 511 U.S. at 617-18.
We thus examine the relevant factors—public welfare, penalty, and reputation—below. 23
But unlike the federal statute at issue in Staples, the Kansas statute is not silent
about its strict liability nature. Rather, as detailed above, the Kansas Legislature has
spoken clearly by specifically listing KORA violations among crimes that may be
committed without the actor having a culpable mental state. See K.S.A. 2019 Supp. 21-
5203(e); K.S.A. 2019 Supp. 21-5202(a), (d). Because our Legislature has spoken clearly
that a KORA violation is a strict liability crime, we are interpreting rather than construing
the Kansas statute. See State v. Gensler, 308 Kan. 674, 677, 423 P.3d 488 (2018)
(legislative intent governs statutory interpretation; reliance on plain, unambiguous
language "'the best and only safe rule'" for determining intent; only if language is
ambiguous does court move to wider examination of canons of statutory construction).
1. The public welfare
First, we ask whether the public welfare rationale applies to a KORA violation.
See, e.g., Staples, 511 U.S. at 617-18, addressing "public welfare" statutes. Genson
asserts that strict liability statutes are limited to those that "regulate[] inherently
dangerous or deleterious conduct," and that failure to register is not inherently dangerous.
We believe that cuts too narrowly.
The Legislature may establish strict liability offenses for the protection of the
public. See Steffes v. City of Lawrence, 284 Kan. 380, 390, 160 P.3d 843 (2007) (citing
Logan, 198 Kan. at 216). The Kansas Supreme Court applied the public welfare rationale
in State v. Mountjoy, 257 Kan. 163, 175-77, 891 P.2d 376 (1995). Mountjoy held that the
unauthorized practice of the healing arts is a strict liability crime under the public welfare
doctrine:
"Among all the objects sought to be secured by government, none is more
important than the preservation of the public health. State, ex rel., v. Fadely, 180 Kan. at 24
665. It is fundamental that where a statute is designed to protect the public, the language
of that statute must be construed in the light of the legislative intent and purpose and is
entitled to a broad interpretation so that its public purpose may be fully carried out. The
common-law rule which requires the element of criminal intent to hold a person
criminally responsible for his or her conduct contains a well-recognized exception for
public welfare offenses.
"The purpose of K.S.A. 65-2803 is to protect the public from the unauthorized
practice of the healing arts. The unauthorized practice of the healing arts is an offense
which, under the public welfare doctrine, does not require the element of criminal intent."
257 Kan. at 177 (Emphasis added.)
Mountjoy relied on many other Kansas cases recognizing the public welfare
doctrine.
"[T]he Fairmont court noted that 'the [public welfare] doctrine has been recognized in
this jurisdiction many times. (State v. Merrifield, 180 Kan. 267, 303 P.2d 155; State v.
Beam, 175 Kan. 814, 267 P.2d 509; State v. Brown, 173 Kan. 166, 244 P.2d 1190; State
v. Avery, 111 Kan. 588, 207 Pac. 838; and City of Hays v. Schueler, 107 Kan. 635, 193
Pac. 311.)' 196 Kan. at 82. After noting that the dairy industry was affected with a public
purpose and constitutionally subject to regulation after Nebbia v. New York, 291 U.S.
502, 54 S. Ct. 505, 78 L. Ed. 940 (1934), the Fairmont court held that the absence of a
required criminal intent in doing the acts proscribed by the Dairy Practices Act was not
fatal for lack of due process. 196 Kan. at 82.
"Other Kansas cases cited by the State where the public welfare doctrine has
been followed are: State v. Logan, 198 Kan. 211, 424 P.2d 565 (1967) (violation of the
Kansas Liquor Control Act); State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956)
(driving while license suspended). See also State v. Robinson, 239 Kan. 269, 718 P.2d
1313 (1986) (furnishing alcoholic liquor to a minor); State v. Riedl, 15 Kan. App. 2d 326,
807 P.2d 697 (1991) (various traffic violations); City of Wichita v. Hull, 11 Kan. App. 2d
441, 724 P.2d 699 (1986) (city DUI ordinance); City of Overland Park v. Estell, 8 Kan.
App. 2d 182, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983) (city traffic 25
ordinance violation); State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977) (speeding)."
257 Kan. at 175-76.
Similarly, a KORA violation is a public welfare offense. The legislative purpose
of KORA is "to protect the public from sex offenders as a class of criminals who are
likely to reoffend and to provide public access to the registration information required
when an offender falls within the provisions of the KORA. See State v. Wilkinson, 269
Kan. 603, 609, 9 P.3d 1 (2000); State v. Stevens, 26 Kan. App. 2d 606, 609, 992 P.2d
1244 (1999), rev. denied 268 Kan. 895 (2000)." State v. McElroy, 281 Kan. 256, 263, 130
P.3d 100 (2006), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d
332 (2016). See State v. Fredrick, 292 Kan. 169, 173, 251 P.3d 48 (2011). Previously
named the Kansas Sex Offender Registration Act, KORA was expanded in 1997 to
include registration requirements for those who commit certain violent (but not sexrelated) offenses and certain other types of offenders. L. 1997, ch. 181, §§ 7-14.
Genson contends that the KORA violation statute is not narrowly tailored to serve
a compelling governmental interest. As support, Genson cites testimony that no data
shows the offender registry deters crime or decreases recidivism. Yet Genson has not
shown that the purpose of the offender registry is either deterrence or decreasing
recidivism of offenders. Rather, its purpose, as stated above, is to protect the public by
giving law enforcement officers and the public information about where certain violent or
other criminals live. Knowing where offenders live enables the public to assess the risk
and take appropriate protective measures.
More fundamentally, Genson fails to show that we should apply strict scrutiny
instead of the rational relationship test. Only if a legislative enactment burdens a
fundamental right must the infringement be narrowly tailored to serve a compelling
government interest. To determine whether the presence of mens rea in a criminal statute
is a fundamental right, we first require a '"careful description' of the asserted fundamental 26
liberty interest." Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 138 L.
Ed. 2d 772 (1997). Genson claims that making KORA a strict liability crime violates due
process because "eradicating mens rea offends the existence of justice." Although this
statement of interest is not carefully drawn, we view Genson's asserted interest as a
liberty interest in not being convicted of a failure to register crime absent proof of a
culpable mental state.
Second, we ask whether that interest is "'deeply rooted in this Nation's history and
tradition'" and "'implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.'" Glucksberg, 521 U.S. at 720-21. So to show
that the Legislature's exercise of its power to define an offense to exclude a mens rea
violates due process, Genson must show that the statute offends some principle of justice
so rooted in the traditions and conscience of our people as to be ranked as fundamental.
The Supreme Court has recognized that fundamental rights include those
guaranteed by the Bill of Rights as well as certain "liberty" and privacy interests implicit
in the Due Process Clause and the penumbra of constitutional rights. See Glucksberg, 521
U.S. at 720; Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 47 L. Ed. 2d 405
(1976). These special "liberty" interests include such rights as the rights to marry, to have
children, to direct the education and upbringing of one's children, and to marital privacy.
Glucksberg, 521 U.S. at 720. The interest Genson asserts is not among those that the
Supreme Court has declared to be "fundamental."
And the Supreme Court is reluctant to expand substantive due process by
recognizing new fundamental rights:
"'[W]e ha[ve] always been reluctant to expand the concept of substantive due process
because guideposts for responsible decision-making in this unchartered area are scarce
and open-ended.' By extending constitutional protection to an asserted right or liberty 27
interest, we, to a great extent, place the matter outside the arena of public debate and
legislative action. We must therefore 'exercise the utmost care whenever we are asked to
break new ground in this field,' lest the liberty protected by the Due Process Clause be
subtly transformed into the policy preferences of the members of this Court. [Citations
omitted.]" Glucksberg, 521 U.S. at 720.
Kansas cases have not examined an interest comparable to the one Genson asserts.
But we find some guidance in cases examining the Sex Offender Registration and
Notification Act (SORNA), the federal counterpart to KORA. The reporting requirements
for SORNA, like those for KORA, turn on the offender's conviction alone. SORNA has
been alleged to violate substantive due process, yet the circuits have upheld the
registration and reporting requirements, finding no fundamental right is implicated:
"Defendant here argues a deprivation of his liberty interest. Although the
Supreme Court has recognized fundamental rights in regard to some special liberty and
privacy interests, it has not created a broad category where any alleged infringement on
privacy and liberty will be subject to substantive due process protection. See Paul, 424
U.S. at 713. The circuit courts that have considered substantive due process arguments
regarding sex offender registries have upheld such registration and publication
requirements finding no fundamental right implicated and no constitutional infirmities.
See, e.g., Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.) (per curiam), cert. denied, 543
U.S. 817, 125 S. Ct. 56, 160 L. Ed. 2d 25 (2004) ('Persons who have been convicted of
serious sex offenses do not have a fundamental right to be free from . . . registration and
notification requirements. . . .'); Doe v. Moore, 410 F.3d 1337, 1344-46 (11th Cir.), cert.
denied, 546 U.S. 1003, 126 S. Ct. 624, 163 L. Ed. 2d 506 (2005); Gunderson v. Hvass,
339 F.3d 639, 643 (8th Cir.2003), cert. denied, 540 U.S. 1124, 124 S. Ct. 1086, 157 L.
Ed. 2d 922 (2004); Paul P. v. Verniero, 170 F.3d at 404, 405 (3d Cir.1999)." United
States v. Hernandez, 615 F. Supp. 2d 601, 620-21 (E.D. Mich. 2009).
See also In re W.M., 851 A.2d 431, 451 (D.C. 2004) (holding that since its sex offender
registration act "does not threaten rights and liberty interests of a 'fundamental' order,
appellants cannot succeed on their substantive due process challenge").28
To the extent those cases do not examine the exact liberty interest Genson claims
here, related to the strict liability nature of the crime, we rely on the Kansas Supreme
Court's statement noted above: "The common-law rule which requires the element of
criminal intent to hold a person criminally responsible for his or her conduct contains a
well-recognized exception for public welfare offenses." Mountjoy, 257 Kan. at 177. So
even if we assume that a person generally has a "fundamental right" to be free from
conviction of a crime absent proof of the element of criminal intent, the public welfare
exception to that rule applies here. Genson has not shown that K.S.A. 2019 Supp. 21-
5203(e) burdens a fundamental right.
When a statute does not implicate fundamental rights, we ask whether it is
"rationally related to legitimate government interests." Glucksberg, 521 U.S. at 728. "The
rational basis standard is a very lenient standard. All the court must do to uphold a
legislative classification under the rational basis standard is perceive any state of facts
which rationally justifies the classification." Peden v. State, 261 Kan. 239, 258, 930 P.2d
1 (1996). In such cases, the government has no obligation to produce evidence or
empirical data to sustain the rationality of a statutory classification. F.C.C. v. Beach
Communications, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993).
"[A]ny reasonably conceivable state of facts" will suffice to satisfy rational basis
scrutiny. 508 U.S. at 313. The burden falls on the party attacking the statute as
unconstitutional to "negative every conceivable basis which might support it." Madden v.
Kentucky, 309 U.S. 83, 88, 60 S. Ct. 406, 84 L. Ed. 590 (1940).
Thus, when the Kansas Supreme Court has reviewed legislation alleged to violate
substantive due process, it has held that "'"statutes, if reasonably necessary for the
effectuation of a legitimate and substantial state interest, and not an arbitrary or
capricious in application, are not invalid under the Due Process Clause."'" Kansas
Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 318, 532 P.2d 1263 29
(1975); see also Brown v. Wichita State University, 219 Kan. 2, 21, 547 P.2d 1015 (1976)
(noting that when legislation is challenged as violative of due process, the challenger
must demonstrate that the legislation bears no reasonable relation to a permissible
legislative objective).
Similarly, substantive due process challenges to other state's sex offender
registries have failed under the rational relationship test. See, e.g., In re Detention of
Garren, 620 N.W.2d 275, 285 (Iowa 2000) (rejecting substantive due process challenge
because of the "'reasonable fit between the governmental purpose and the means chosen
to advance that purpose'"); see also People v. Malchow, 306 Ill. App. 3d 665, 672, 714
N.E.2d 583 (1999) (concluding that no substantive due process violation occurred
because the statute "'bears a reasonable relationship to a public interest to be served'").
Genson fails to show that K.S.A. 2019 Supp. 21-5203(e) bears no reasonable
relationship to the permissible legislative objective noted above. Rather, KORA meets
the rational basis test because it is in the interest of government to protect the public from
sexual and other violent offenders.
The nature of Genson's offense thus falls within the class of strict liability cases
that may be upheld based on a public welfare rationale.
2. Harm to reputation
Second, we examine the degree of harm to one's reputation by the violation at
issue—whether it does any "grave damage to an offender's reputation." Morissette, 342
U.S., at 256; see Staples, 511 U.S. at 617-18. Reputation means "[t]he esteem in which
someone is held or the goodwill extended to or confidence reposed in that person by
others, whether with respect to personal character, private or domestic life, professional 30
and business qualifications, social dealings, conduct, status, or financial standing."
Black's Law Dictionary 1560 (11th ed. 2019).
Genson argues that a KORA violation is a felony, and that "felony" is a bad label,
which is true. But Genson fails to go beyond the label to show that damage to his
reputation flows from his failure-to-register felony. Genson does not show that an
offender's failure to register is likely to be known to the general public or to the offender's
community or social circle, as is necessary for it to impact the offender's reputation. But
even if a failure to register were widely known in an offender's community, the public
would likely view a failure to register as a mere technicality, having no impact on one's
reputation.
But even if some stigma does flow from failing to register, that stigma pales in
comparison to the preexisting stigma caused by the nature of the sexual, violent, or other
offense that gave rise to the duty to register and that is already a matter of public record.
See K.S.A. 2019 Supp. 22-4902 (listing the sex offenders, violent offenders, and others
subject to KORA's registration requirements). See, e.g., Welvaert v. Nebraska State
Patrol, 268 Neb. 400, 409, 683 N.W.2d 357 ( 2004) ("'[C]onsequences flow not from [a
sex offender registration act's] registration and dissemination provisions, but from the
fact of conviction, already a matter of public record.'"); State v. White, 162 N.C. App.
183, 194, 590 S.E.2d 448 (2004) ("[A]ny stigma flowing from registration requirements
is not due to public shaming, but arises from accurate information which is already
public."); Meinders v. Weber, 604 N.W.2d 248, 257 (S.D. 2000) ("The information
contained in the sex offender registry is almost the same information available as a public
record in the courthouse where the conviction occurred.").
This factor does not point to a substantive due process violation.31
3. The penalty
Third, we consider the penalty for the violation. According to K.S.A. 2019 Supp.
21-6804(m), the sentence for a violation of K.S.A. 2019 Supp. 22-4903 is presumptive
imprisonment. We thus agree with Genson that the presumptive penalty for a KORA
violation is not necessarily "relatively small.'" Morissette, 342 U.S. at 256; see Staples,
511 U.S. at 617-18 Genson, however, got a relatively small penalty, likely because of his
mental health issues—he got a downward departure and probation instead of prison. So
the fact that a KORA violation is a felony with presumptive imprisonment carries little
weight, as applied to Genson.
Nor does the fact that a KORA violation is a felony with presumptive prison time,
by itself, show a substantive due process violation. Staples rejected a definitive rule that
punishing a violation as a felony is simply incompatible with the theory of the public
welfare offense. Staples, 511 U.S. at 618-19. Instead, cases use a severe penalty as a
factor tending to show legislative intent not to eliminate a mens rea requirement when the
controlling statute lacks a clear statement that mens rea is not required:
"Our characterization of the public welfare offense in Morissette hardly seems
apt, however, for a crime that is a felony, as is violation of § 5861(d). After all, 'felony' is,
as we noted in distinguishing certain common-law crimes from public welfare offenses,
'"as bad a word as you can give to man or thing."' [342 U.S.] at 260 (quoting 2 F. Pollock
& F. Maitland, History of English Law 465 (2d ed. 1899)). Close adherence to the early
cases described above might suggest that punishing a violation as a felony is simply
incompatible with the theory of the public welfare offense. In this view, absent a clear
statement from Congress that mens rea is not required, we should not apply the public
welfare offense rationale to interpret any statute defining a felony offense as dispensing
with mens rea. But see United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604
(1922).32
"We need not adopt such a definitive rule of construction to decide this case,
however. Instead, we note only that where, as here, dispensing with mens rea would
require the defendant to have knowledge only of traditionally lawful conduct, a severe
penalty is a further factor tending to suggest that Congress did not intend to eliminate a
mens rea requirement. In such a case, the usual presumption that a defendant must know
the facts that make his conduct illegal should apply." Staples, 511 U.S. at 618-19.
Similarly, in Gypsum, 438 U.S. at 442 n.18, where Sherman Act antitrust statutes
neither required nor dispensed with a mens rea, the Court found "the severity of these
sanctions provides further support for our conclusion that the [Act] should not be
construed as creating strict-liability crimes." Thus the penalty factor is used merely as a
tool of statutory interpretation when the language of the statute is unclear, rather than a
constitutional limit on the Legislature's power to define crimes.
Here, we have a clear statement from the Legislature that mens rea is not required
for a KORA violation. Kansas' statute is explicit in its elimination of mens rea. So we are
not construing a statute looking for legislative intent. So the fact that a KORA violation is
a felony has no tendency to suggest that the Legislature did not intend to eliminate a
mens rea requirement.
No defense available
Related to the penalty factor, Genson also contends that if KORA is a strict
liability offense that presumes imprisonment, a mentally ill defendant can present no
defense yet is doomed to 17 to 247 months in prison.
But Genson's premise is flawed. Even though the district court properly precluded
evidence at trial of Genson's mental illness, the district court properly took that same
evidence into account during sentencing. So the fact that a KORA violation is a strict
liability offense does not compel the conclusion that the offender must serve prison time, 33
as Genson asserts. Genson's case illustrates this, as he got a downward departure and was
sentenced to probation. The fact that the district court takes mental illness into account at
sentencing cuts against a substantive due process claim.
And Genson fails to show that the lack of mens rea in the KORA statute negates
all defenses at trial. See K.S.A. 2019 Supp. 21-5201(a) ("A person commits a crime only
if such person voluntarily engages in conduct, including an act, an omission or
possession."); State v. Dinkel, 311 Kan. 553, 559-60, 465 P.3d 166 (2020) (finding a
defendant who cannot argue lack of mens rea may still argue, when appropriate, that the
voluntary act or omission requirement of the actus reus was not met).
We find that K.S.A. 2019 Supp. 21-5203(e) does not violate substantive due
process by making a KORA violation a strict liability crime.
IV. DID THE DISTRICT COURT ERR BY DENYING GENSON'S REQUESTS RELATING TO JURY
NULLIFICATION?
Finally, Genson argues that the district court violated his jury-trial right by
preventing the jury from considering nullification evidence and by not instructing the jury
about its power to nullify.
Genson asks this court to determine whether the district court committed clear
error in failing to give the following jury instruction sua sponte:
"'[Y]ou are entitled to act upon your conscientious feeling about what is a fair
result in this case and acquit the defendant if you believe that justice requires
such a result. Exercise your judgment without passion or prejudice, but with
honesty and understanding. Give respectful regard to my statements of the law34
for what help they may be in arriving at a conscientious determination of justice
in this case. That is your highest duty as a public body and as officers of this
court.' PIK, Criminal, §51.03."
However, PIK Crim. § 51.03 was disapproved for use in State v. McClanahan, 212 Kan.
208, 215-16, 510 P.2d 153 (1973).
Genson also argues that the district court erred by precluding evidence of his
mental health because that evidence would have supported jury nullification.
Genson's arguments conflict with the Kansas Supreme Court's recent decisions in
State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019), and State v. Toothman, 310 Kan.
542, 448 P.3d 1039 (2019). Our Supreme Court has long held that "an instruction telling
the jury that it may nullify is legally erroneous." Boothby, 310 Kan. at 630. Although
juries have the power to nullify, a criminal defendant does not have the right to argue jury
nullification. Toothman, 310 Kan. at 555-56; see Boothby, 310 Kan. at 630.
And the district court here gave the very instruction that the Boothby and
Toothman court determined was legally correct: "Your verdict must be founded entirely
upon the evidence admitted and the law as given in these instructions." See Toothman,
310 Kan. at 556; Boothby, 310 Kan. at 631. Based on this precedent, we find that the
district court properly did not instruct the jury on its power to nullify and also properly
excluded evidence of Genson's mental health in support of nullification.
Affirmed.
* * *
ATCHESON, J., dissenting: I respectfully dissent.35
1. An Overview
The Kansas Legislature has chosen to criminalize violations of the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq. as felonies with substantial
prison sentences that can be imposed on a person even if he or she lacks bad intent or
unknowingly violates the law. The vast majority of criminal statutes prohibit and punish
conduct considered obviously wrongful, such as murder or theft, or otherwise plainly
injurious to the public welfare, such as manufacturing adulterated foods or drugs. But
KORA punishes doing nothing—the failure to fill out registration forms at specified
times and places. Criminalizing inaction in combination with a severe punishment
imposed regardless of a person's intent runs counter to fundamental principles embedded
in the criminal justice system and violates constitutional due process protections.
The crime created and the penalties imposed on violent offenders and drug
offenders in K.S.A. 2019 Supp. 22-4903 for failing to register and report under KORA
impermissibly deprive those groups of a fundamental liberty interest protected in the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Unlike
convicted sex offenders—the class originally targeted in KORA—those classes of
offenders were added to the statutory scheme without any demonstrably comparable
public welfare purpose, underscoring the constitutional infirmity of the harsh penalties
they face for failing to comply with what amount to repetitive bureaucratic requirements.
And the constitutional infirmity cannot be remedied through judicial interpretation of the
statute. Therefore, the conviction of Defendant Daniel Earl Genson III, a violent offender,
should be reversed and his sentence vacated.
The majority props up the criminal scheme in KORA with a series of arguments
misconstruing applicable constitutional principles, mischaracterizing the law that has
developed around strict liability offenses, and otherwise missing the mark. I cannot agree. 36
Because I would grant full relief to Genson on his due process challenge, I do not address
his other arguments and express no views about the majority's handling of them.
2. Genson's Collision with KORA
For most of his life, Genson, who is now in his mid-20s, has been plagued with
serious mental health issues resulting in multiple voluntary and involuntary commitments
to hospitals for treatment. He was the subject of a competency evaluation during this
case. Genson has been diagnosed as having a psychotic disorder and being schizophrenic.
Without medication, he experiences auditory and visual hallucinations; he has engaged in
self-destructive behaviors and has intermittently acted violently toward other persons,
including family members, for years.
In April 2017, Genson was convicted of attempted voluntary manslaughter in
Geary County District Court. As a result of that conviction, Genson was required to
register and report as a "violent offender" under KORA. See K.S.A. 2019 Supp. 22-
4902(e)(1)(D), (e)(4). He successfully registered and then reported for a while. But in the
throes of a psychotic break, Genson failed to report in November 2017. Several days after
the reporting deadline, he was involuntarily committed to a state mental hospital for
treatment. In March 2018, the county attorney for Riley County charged Genson with a
KORA registration violation, a severity level 6 person felony. See K.S.A. 2019 Supp. 22-
4903(c)(1)(A). A jury convicted Genson in January 2019. The Riley County District
Court denied Genson's request to present evidence about his deteriorated mental health in
late 2017 or his mental health history generally because KORA is a strict liability crime
requiring no criminal intent.
Based on his criminal history, Genson faced a guidelines sentence of incarceration
for between 40 and 46 months with a statutory presumption that he be imprisoned. A
month after the jury verdict, the district court sentenced Genson to 24 months in prison 37
and placed him on probation for 24 months. Genson has appealed, raising several
challenges to his conviction and to criminal violations of KORA. I focus on his argument
that KORA categorically violates the Due Process Clause of the Fourteenth Amendment
by imposing an extended term of imprisonment for the failure to take an inherently
innocuous act of, at best, indeterminate public benefit—all without requiring any
deliberateness or bad intent. The Due Process Clause does not permit a state to impose
that sort of criminal liability on its citizens.
3. Criminal Violations of KORA
The mechanics of KORA are integral to the constitutional violation it inflicts. The
scheme identifies three classes of convicted defendants required to register and report:
the "sex offender," as defined in K.S.A. 2019 Supp. 22-4902(b); the "violent offender,"
defined in K.S.A. 2019 Supp. 22-4902(e); and the "drug offender," defined in K.S.A.
2019 Supp. 22-4902(f). After serving any prison sentences for the crimes triggering
KORA obligations, offenders are required to register with a designated law enforcement
agency, typically the sheriff, in the counties where they live, work, and attend school.
Offenders must provide an array of identifying information in an initial registration most
of which is then available for public inspection and is posted in a publicly accessible data
base the Kansas Bureau of Investigation maintains on the Internet. They are then required
to report quarterly to each local agency, complete a form confirming their identification
information, and pay an administrative fee to each agency. They must also notify any
local agency of a change of residence, employment, or school attendance within three
days. Depending on the underlying crime of conviction, offenders must continue
registering and reporting for between 15 years and the rest of their lives. Genson is
obligated to register and report until sometime in 2032.
When the Legislature enacted KORA in 1993, the scheme applied only to sex
offenders. The Legislature added violent offenders in 1997 and drug offenders in 2007. 38
The Legislature has adjusted the reporting requirements over the years—typically making
them more burdensome on the registrant—and extended the duration of the registration
obligation. The legislative justification for KORA registration and reporting lay in what
was represented to be the comparatively 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 sex offenders); cf.
Smith v. Doe, 538 U.S. 84, 103, 105-06, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003)
(upholding comparable Alaska scheme requiring registration of sex offenders against
challenge as violation of Ex Post Facto Clause of the United States Constitution and
noting empirical studies showing sex offenders to be far more likely to reoffend than
other convicted criminals). There is no like legislative history for violent offenders and
drug offenders, as the classes added to KORA.[1]
[1]I have no background in social science research or statistics, but I fail to see
how there could be—at least as to the remarkably high rate of recidivism attributed to the
class of convicted sex offenders as compared with other convicted criminals. If "violent
offenders" and "drug offenders," as expansively defined classes in KORA, had recidivism
rates anything like "sex offenders," then it would seem sex offenders could not be
characterized as having uniquely high rates.
Genson has not disputed the constitutional propriety of the registration and
reporting requirements of KORA in this case. A majority of the Kansas Supreme Court
has upheld those obligations against attacks as constitutionally impermissible
punishment, finding them not to be punitive. See State v. Meredith, 306 Kan. 906, 909-
10, 399 P.3d 859 (2017); State v. Petersen-Beard, 304 Kan. 192, 196-97, 377 P.3d 1127
(2016). Rather, Genson challenges the criminal penalties imposed in KORA for failing to
register or report as statutorily required. That is a constitutionally distinct issue. See
Smith, 538 U.S. at 102. 39
In 1993, KORA punished the failure of a convicted sex offender to register or
report as a class A misdemeanor that would have carried a maximum sentence of one
year in jail. Six years later, the Legislature increased the penalty to a severity level 10
nonperson felony and has since regularly ratcheted up the penalties. When Genson was
prosecuted, a first offense for failing to register or report was a severity level 6 felony
with presumptive guidelines punishments from 17 to 46 months in prison, depending on a
given defendant's criminal history. Each 30-day period an individual failed to register or
report created a separate violation, so someone failing to comply for 90 days could be
charged with three counts with potentially consecutive sentences upon conviction. A
failure to register or report for more than 180 days could be charged as an aggravated
violation with presumptive prison sentences from 55 to 247 months. K.S.A. 2019 Supp.
22-4903. Repeat violators faced harsher penalties. Those remain the penalties under
K.S.A. 2019 Supp. 22-4903.
Until 2011, the State had to prove persons acted with general criminal intent—that
is, "to do what the law prohibits"—to convict them of KORA registration violations. In re
C.P.W., 289 Kan. 448, 454, 213 P.3d 413 (2009). The court elaborated on the requisite
state of mind this way: "'[A]ll that is required is proof that the person acted intentionally
in the sense that he was aware of what he was doing.'" 289 Kan. at 454 (quoting State v.
Hodge, 204 Kan. 98, 108, 460 P.2d 596 [1969]). General criminal intent entails acting
deliberately, so the wrongful conduct is "willful and purposeful and not accidental." State
v. Sterling, 235 Kan. 526, 527, 680 P.2d 301 (1984); see also Black's Law Dictionary 964
(11th ed. 2019) ("criminal intent" defined as "[a]n intent to commit an actus reus without
any justification, excuse, or other defense"). As I discuss, that conforms to customary
principles of criminal law and due process requirements, especially for felonies with
substantial penalties. 40
4. Failure to Register under KORA as a Strict Liability Crime
Crimes, particularly felonies, typically consist of a mens rea (bad intent) and an
actus reus (bad or prohibited act), so a defendant must intend to do the bad act. Applying
those concepts to a criminal statute punishing the failure to act rather than the
performance of action deemed misconduct calls for a bit of mental gymnastics. The actus
reus entails doing nothing or not acting. So the mens rea or bad intent necessarily requires
some knowledge or reason to know on the defendant's part that his or her mere passivity
is wrongful. That would have been true for the crime of failing to register or report under
KORA until 2011. The Legislature recodified the criminal code in 2010 and made some
limited substantive changes and mostly technical revisions that went into effect the
following year. Pertinent here, the Legislature expressly designated the failure to register
or report under KORA as a crime having no "culpable mental state" or, in other words, a
strict liability offense. K.S.A. 2019 Supp. 21-5203(e). With strict criminal liability,
defendants may be found guilty even though they do not know or have reason to
understand they have engaged in the act that violates the law. Speeding, for example, is a
strict liability offense. So drivers can be guilty simply because they are inattentive to how
fast they are traveling or even if they think they are driving at the speed limit because
their speedometers incorrectly show them going slower than they actually are.
Historically, crimes required proof of both an actus reus and a mens rea to
establish a defendant's guilt. This wasn't simply happenstance—it represents a
fundamental principle of criminal liability. See Morissette v. United States, 342 U.S. 246,
250-52, 72 S. Ct. 240, 96 L. Ed. 288 (1952). The Court explained the requirement of bad
intent was "no provincial or transient notion" but stands "as universal and persistent in
mature systems of law as belief in freedom of the human will and a consequent ability
and duty of the normal individual to choose between good and evil." 342 U.S. at 250.
Proof of both "an evil-meaning mind" and "an evil-doing hand" to convict a defendant
remains the cornerstone of modern criminal law, particularly in defining serious felonies. 41
342 U.S. at 251-52, 261-62. The deep-seated historical recognition of bad intent as an
essential element of criminal liability animates the proper constitutional analysis in this
case, as I discuss.
The creation of a limited range of strict liability crimes, largely to address public
health and welfare concerns in an increasingly industrialized and urbanized society, also
informs the constitutional considerations at issue here. The general contours of those
offenses stand in marked contrast to the harsh penalties imposed in KORA for the
declared felony of inaction for failing to register or report.
As outlined in Morissette, the increasing concentration and mobilization of people
in metropolitan areas in the late 19th and early 20th centuries spurred government
regulation to ensure at least some measure of efficiency and public welfare. Regulations,
for example, took the form of what might be considered mundane traffic codes that
imposed fines for violations without regard to fault or bad intent. Other regulations
imposed basic standards of safety and sanitation in housing and workplaces to be
enforced, in part, through civil sanctions and, in part, through criminal penalties imposed
without proof of a mens rea. Similar measures, with similar means of enforcement, aimed
to protect consumers from foods and pharmaceuticals mass produced indifferently or in
adulterated forms. Many modern strict liability offenses continue that approach to
policing heavily regulated industries or activities, including the manufacture of food and
drugs and new areas such as the handling of environmentally hazardous substances,
where the participants would be expected to inquire into the extent of those regulations
and their potential civil or criminal liability for errant conduct. Staples v. United States,
511 U.S. 600, 607, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994); Liparota v. United States,
471 U.S. 419, 432-33, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985); Morissette, 342 U.S. at
254. Those offenses rest on a duty to know arising from the defendant's chosen
occupational endeavors and seek to deter conduct implicating potentially life-threatening
harms. See Rivera v. State, 363 S.W.3d 660, 669-70 (Tex. App. 2011). 42
Regulatory offenses typically imposed "relatively small" criminal penalties, and
convictions were not considered infamous, which is to say they carried neither the penal
sting nor the social stigma of felonies. Morissette, 342 U.S. at 252-56; see also Larkin,
Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause,
37 Harv. J. L & Pub. Pol'y 1065, 1072-79 (2014) (outlining history of strict liability
offenses). The Court more recently reemphasized that those "public welfare offenses"
were conceived and "almost uniformly involved statutes that provided for only light
penalties such as fines or short jail sentences." Staples, 511 U.S. at 616.
Strict liability offenses of that stripe, of course, not only remain but have
proliferated since Morissette. 37 Harv. J. L & Pub. Pol'y at 1078-79. They continue to be
marked generally by restrained criminal penalties, consistent with their antecedents. See
State v. Yishmael, 195 Wash. 2d 155, 169-70, 456 P.3d 1172 (2020); see also Rivera, 363
S.W.3d at 670 (strict liability offenses often punished with only fines; "presumption
against strict liability strengthen[ed]" by confinement as punishment); LaFave, 1 Subst.
Crim. L. § 5.5 (3d ed. 2020). Contrary to the majority's suggestion, those cases consider
the severity of the criminal penalties imposed in a statute as a substantial factor in
determining if it creates a strict liability offense in the first place and, if so, whether the
statute then conforms to constitutional due process protections. The prescribed
punishment is more than "merely a tool" for construing a criminal statute that is silent as
to any required intent, as the majority would have it. The kind and degree of punishment
directly implicates a constitutional constraint on strict liability crimes.
In some situations, judicially reading an intent element or mens rea into a silent
statute may simply align the prohibition with its direct common-law antecedents and the
usual principles of criminal law favoring intent-based crimes. See, e.g., Morissette, 342
U.S. at 260-63 (theft or embezzlement of government property requires criminal intent,
although no form of intent explicitly identified in statutory language). Likewise, imputing 43
a mens rea element to an ambiguous criminal statute can avert a potentially fatal
constitutional defect, especially with felonies carrying harsh punishments. See, e.g.,
United States v. X-Citement Videos, Inc., 513 U.S. 64, 70-71, 78, 115 S. Ct. 464, 130 L.
Ed. 2d 372 (1994) (Court construes scienter requirement of statute more broadly than
natural grammatical reading of language would suggest to avoid constitutional danger in
punishing some proscribed conduct absent bad intent); Rivera, 363 S.W.3d at 670. But, as
the majority points out, the Legislature in 2010 unmistakably declared the crimes
punishing noncompliance with KORA to be strict liability offenses. There is no
ambiguity on that score.
As a result, the criminal liability imposed on violent offenders and drug offenders
for failing to register or report under KORA does not fit comfortably or even readily
anywhere in the taxonomy of the law. The prison sentences are of a severity reserved for
traditional crimes that require proof of both a proscribed act and a bad intent. And those
crimes typically are malum in se—the forbidden conduct is intrinsically understood to be
wicked. Most codified common-law crimes such as murder, rape, robbery, and theft are
malum in se. If the criminalized behavior is not inherently malevolent, the offense is
considered malum prohibitum or wrongful because the government has declared it
wrongful. See City of Hutchinson v. Weems, 173 Kan. 452, 455, 249 P.2d 633 (1952); 1
LaFave, Subst. Crim. L. § 1.6(b). Failing to register or report under KORA is malum
prohibitum. Those offenses typically carry lesser penalties. See Morissette, 342 U.S. at
255-56 (regulatory offenses); United States v. Heller, 579 F.2d 990, 993-94 (6th Cir.
1978) (federal crime of transmitting ransom demand in interstate commerce malum in se
rather than malum prohibitum given nature of conduct in facilitating dangerous act and
severity of penalty, citing Morissette, 342 U.S. at 255-56). Again, speeding is a good
example of a malum prohibitum offense.
As I have outlined, the wrong under KORA is not conduct at all but the failure to
act. The required action is registration and repeated reporting to law enforcement 44
agencies imposed on violent offenders as a class without a demonstrated public benefit,
since the class has not been shown to be especially prone to recidivism and the stated
purpose of KORA is to protect the public from sex offenders as a class specifically
because that class is highly likely to reoffend. So a KORA violation differs from the
affirmative and noxious conduct associated with public welfare crimes such as
misbranding or adulterating food and drugs.
Finally, of course, failing to comply with KORA breaks with fundamental
principles of criminal law by imposing felony liability and concomitantly severe penalties
without any requirement for proof of bad intent or evil mindedness. The severity of the
punishment and the absence of intent must be assessed in tandem to measure the
constitutional impingement. It would be both poor constitutional reasoning and deceptive
to say plenty of crimes are punished just as harshly and lots of crimes dispense with any
element of intent, so KORA registration and registration violations must be permissible.
The former are malum in se felonies requiring proof of criminal intent to convict; the
latter are mostly misdemeanors or fineable offenses. KORA violations are neither, since
they combine the absence of criminal intent with harsh penalties. The combination of the
two then flags a serious constitutional deficiency. And the problem is only compounded
when coupled with the lack of a clearly demonstrable public benefit tied to extending
KORA to violent offenders and drug offenders. This case turns on that constitutional
issue.
As I have said, this case is not about the propriety of requiring KORA registration
or the scope of that registration. Genson has not challenged his obligation to register and
report. And it is not about whether the Legislature can punish a failure to comply with
KORA in some manner as a strict liability offense. And it does not presume to raise some
challenge on behalf of sex offenders, since they, as a class, are demonstrably different
and present a tangible public threat, as documented in the legislative history of KORA,
that the other covered classes do not. 45
5. Constitutional Considerations
A. Substantive Due Process Liberty Interests
The Due Process Clause recognizes substantive liberty interests and procedural
protections against government action depriving persons of both property rights and
liberty interests, whatever their source, without a meaningful opportunity to be heard.
This case and the KORA crimes at issue directly implicate substantive due process liberty
interests and indirectly touch on procedural due process protections.
Paramount among the substantive liberty interests grounded in and protected
through the Due Process Clause is an individual's right to be free from impermissible
government detention. Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L.
Ed. 2d 578 (2004) ("[T]he most elemental of liberty interests [is] the interest in being free
from physical detention by one's own government."); Foucha v. Louisiana, 504 U.S. 71,
80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (recognizing "[f]reedom from bodily
restraint" to be at "the core of liberty" protected against impermissible government
action); 504 U.S. at 90 (Kennedy, J., dissenting) ("As incarceration of persons is the most
common and one of the most feared instruments of state oppression and state
indifference, we ought to acknowledge at the outset that freedom from this restraint is
essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the
Constitution."); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020). So "there are
constitutional limitations on the conduct that a State may criminalize" through its police
powers. Foucha, 504 U.S. at 80. That fundamental right is at stake here.
To be sure, the substantive due process liberty interests arising from the Due
Process Clause are carefully circumscribed, since they lack explicit textual anchors in the
language of the Constitution. But they command constitutional stature precisely because 46
they are "deeply rooted" in the nation's history and experience. Washington v.
Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Justice
Benjamin Cardozo described substantive due process rights as part of "the very essence
of a scheme of ordered liberty" and inseparably entwined with "'a principle of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental.'"
Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937). As
Morissette makes clear, that history embraces a body (and theory) of criminal law that
imposes severe penalties for wrongs entailing both bad acts and bad intent. A criminal
statute that deviates from those precepts—as the proscriptions and penalties for failing to
comply with KORA do—necessarily implicates a fundamental right to liberty. Strict
liability offenses obviously are not inherently unconstitutional, but they are subject to
constitutional limitations consistent with the fundamental liberty interest protected in the
Due Process Clause.[2]
[2]Actions of government officials also may violate substantive due process
protections of the Fourteenth Amendment if their character is arbitrary and "shocks the
conscience." County of Sacramento v. Lewis, 523 U.S. 833, 845-47, 118 S. Ct. 1708, 140
L. Ed. 2d 1043 (1998); Katz v. Kansas Dept. of Revenue, 45 Kan. App. 2d 877, 896, 256
P.3d 876 (2011). In Lewis, the Court appeared to tie the arbitrary or conscience shocking
standard for a constitutional deprivation to "executive action." 523 U.S. at 847-48 & n.8.
The Tenth Circuit Court of Appeals has declined to apply it to legislative enactments, i.e.,
statutes. See Browder v. City of Albuquerque, 787 F.3d 1076, 1079 n.1 (10th Cir. 2015);
Dias v. City and County of Denver, 567 F.3d 1169, 1182 (10th Cir. 2009). The point
seems to have caused some disagreement. See Galdikas v. Fagan, 342 F.3d 684, 690 n.3
(7th Cir. 2003) (noting ambiguity and uncertainty as to scope of standard). Other circuit
courts have considered the conscience shocking character of legislative action. See, e.g.,
B & G Const. Co., Inc. v. Director of Office of Workers' Compensation Programs, 662
F.3d 233, 255 (3d Cir. 2011); Obsession Sports Bar & Grill v. City of Rochester, 706
Fed. Appx. 53 (2d Cir. 2017) (unpublished opinion). I do not venture into the
controversy, since the conscience shocking standard would simply augment my
constitutional analysis based on a fundamental right.
The penal provisions of KORA set out in K.S.A. 2019 Supp. 22-4903, then,
contravene a fundamental due process liberty interest. And they do so in a way that
deviates materially from the historical tradition embodied in this country's criminal laws 47
by imposing harsh penalties for violations without any bad intent or mens rea. See
Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d. 524 (1991)
("Every person has a fundamental right to liberty in the sense that the Government may
not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal
trial conducted in accordance with the relevant constitutional guarantees."); Bell v.
Wolfish, 441 U.S. 520, 535-56, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (punishment may
only follow "an adjudication of guilt in accordance with due process of law"). For that
reason, the statute receives no presumption of constitutionality upon judicial review as
would, for example, a statute codifying a common-law crime requiring both an actus reas
and mens rea or a statute defining a public welfare offense with modest penalties. In turn,
we should examine the statute using a strict scrutiny standard. See Ysura v. Pocatello
Educ. Ass'n, 555 U.S. 353, 358, 129 S. Ct. 1093, 172 L. Ed. 2d 770 (2009) (legislative
decision infringing on fundamental right subject to strict scrutiny ); Kadrmas v.
Dickinson Public Schools, 487 U.S. 450, 458, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988)
(statute interfering with fundamental right subject to strict scrutiny); Regan v. Taxation
With Representation of Washington, 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129
(1983); cf. State v. Ryce, 303 Kan. 899, 957, 368 P.3d 342 (2016) (criminal penalty for
refusing blood-alcohol test infringes on substantive Fourth Amendment right triggering
strict scrutiny). Strict scrutiny review requires the government to establish that a
challenged statute furthers a compelling governmental interest and is narrowly tailored to
advance that interest. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S. Ct. 2382, 72 L. Ed. 2d
786 (1982); Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct. 673, 54 L. Ed. 2d 618
(1978); Bostic v. Schaefer, 760 F.3d 352, 375 & n.6 (4th Cir. 2014); Gallagher v. City of
Clayton, 699 F.3d 1013, 1017 (8th Cir. 2012).
Engaged on those terms, the constitutionality of the criminal provisions of KORA
in K.S.A. 2019 Supp. 22-4903 can be readily decided as to violent offenders. As I have
already outlined, the registration and reporting requirements the criminal penalties are
supposed to encourage serve no especially significant or immediate public purpose, since 48
that class of offenders has not been shown to have a demonstrably higher rate of
recidivism than the run of offenders generally. The stated legislative purpose and legal
justification for KORA rest on the particularly high rate at which sex offenders reoffend.
And that purpose can't simply be superimposed on violent offenders and drug offenders
to justify their inclusion in K.S.A. 2019 Supp. 22-4903.
Even assuming a legitimate government objective in requiring violent offenders to
register and report, the penalties in K.S.A. 2019 Supp. 22-4903 have not been narrowly
tailored to advancing that objective. That would seem to be especially true with the
current sanctions that both dispense with criminal intent and impose harsh felony
punishments. Nothing suggests the original misdemeanor penalties, that permitted up to a
year in jail, were ineffective in achieving compliance with KORA or that the current
punitive scheme has been measurably more effective. The government has offered no
legislative or public policy purpose for the conversion of KORA violations from intentbased crimes to strict liability crimes in the 2010 recodification of the criminal code. The
elimination of intent as an element of the crime invariably would make violations easier
to prove. But that cannot itself constitutionally justify creating an offense that
impermissibly diminishes a fundamental liberty interest.
In short, the criminalization of the failure to register and report as set out in K.S.A.
2019 Supp. 22-4903 violates the fundamental due process rights of the class of violent
offenders defined in KORA. As a result, the statute cannot be enforced against Genson or
that class. I would reverse Genson's conviction and vacate his sentence for that reason.[3]
[3]I have not arbitrarily carved out the class or group of "violent offenders" in
reaching my conclusion. As I have outlined, KORA itself identifies three distinct classes
of convicted offenders required to register and report and, thus, face criminal prosecution
for failing to do so. I have simply applied Genson's due process challenge to the statutory
class to which he belongs. I expect that analysis could lead me to the same conclusion as
to drug offenders. Given the legislative history of KORA and what has been accepted
social science and psychological research on "sex offenders" as a group, the outcome isn't 49
as obvious, and I offer no view on it. But the constitutional propriety of KORA violations
as strict liability felonies, with extended imprisonment as a prescribed punishment, for
the defined classes of violent offenders or drug offenders is not in any way tied to the
propriety of those punishments for the class of sex offenders.
Because I would decide this case in Genson's favor under the Due Process Clause
of the United States Constitution, I venture no analysis of or opinion on his constitutional
challenge based on sections 1 and 5 of the Kansas Constitution Bill of Rights.
To preserve the constitutionality of a statute, courts often construe the challenged
language in a manner that averts the potential defect. They will read ambiguous language
to favor constitutionality or fill in a statutory gap to do so. See Chapman, 500 U.S. at
464; Hoesli v. Triplett, Inc., 303 Kan. 358, 367, 361 P.3d 504 (2015). The penal
provisions in KORA, however, do not accommodate that sort of judicial guardianship. As
the majority notes, the Legislature has plainly declared KORA violations to be strict
liability crimes by including them in K.S.A. 2019 Supp. 21-5203 that identifies a limited
number of offenses permitting conviction without "a culpable mental state." An appellate
court could, perhaps, strike down only that part of K.S.A. 2019 Supp. 21-5203(e)
covering KORA, while leaving intact the description of the KORA crimes in K.S.A. 2019
Supp. 22-4903. That description in KORA does not address intent. Presumably, then, the
default mechanisms in K.S.A. 2019 Supp. 21-5202(d) and (e) would impute a reckless
intent to the judicially altered version of KORA. But the resulting statutory scheme
would have been judicially rewritten, not merely construed or interpreted. And that's an
impermissible fix for a constitutional defect. Chapman, 500 U.S. at 463; Hoesli, 303 Kan.
at 367-68. Reducing the statutory punishments in KORA to bring them in line with
conventional sanctions for strict liability offenses would be a more pronounced judicial
overreach.
The proper course here requires voiding K.S.A. 2019 Supp. 22-4903 for violent
offenders. See Hoesli, 303 Kan. at 367-68 (statute should be declared unconstitutional if 50
plain meaning of language requires that result). The Legislature could then craft what it
considers an appropriate and presumably constitutional substitute.
B. Considering Lambert: Required Notice and Due Process
Alternatively, Genson's conviction should be reversed and the case remanded
consistent with the United States Supreme Court's rejection of a registration ordinance
covering convicted felons that made the failure to comply a strict liability crime. Lambert
v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). The short decision in
Lambert provides a second line of constitutional analysis undercutting the penal
provisions in KORA and Genson's conviction.
The Los Angeles ordinance at issue in Lambert required persons convicted of any
felony to register with the police chief if they remained in the city for five consecutive
days or entered the city five times in a 30-day period. Each day a felon failed to register
could be charged as a separate violation. Lambert had been convicted of forgery years
earlier and had never registered, despite living in Los Angeles for a long time. She was
arrested on suspicion of another crime but was charged with and convicted of failing to
register. Lambert was placed on probation for three years and fined $250. I presume
failing to register under the ordinance was a misdemeanor, although the opinion never
specifically identifies the crime as a misdemeanor or a felony or describes the maximum
penalties.
The Court reversed Lambert's conviction for violating the ordinance—a strict
liability crime—because she had no actual notice of the duty to register. The Court
concluded Lambert's due process rights had been violated because the ordinance
punished the failure to act or "conduct that is wholly passive" even when a defendant
lacked actual notice of any potential liability. 355 U.S. at 228. In reaching that
conclusion, the Court looked at various circumstances in which governmental 51
deprivations through civil penalties or forfeitures of property required notice and held
"the principle is equally appropriate where a person, wholly passive and unaware of any
wrongdoing, is brought to the bar of justice for condemnation in a criminal case." 355
U.S. at 228. The Court found constructive notice of the ordinance through official
publication insufficient, thus declining to apply the maxim that "ignorance of the law is
no excuse" to uphold the criminalization of inaction under the ordinance. 355 U.S. at 228.
In sum, the Court found the government overstepped due process limitations on its police
powers by criminalizing a "mere failure to register [that] . . . . is unlike the commission of
acts, or the failure to act under circumstances that should alert the doer to the
consequences of his deed." 355 U.S. at 228.
With that characterization of the ordinance's constitutional shortcomings, the
Court seemed to reach both substantive and procedural due process protections. The
procedural due process protection is rooted in an individual's right to fair notice and an
opportunity to be heard before suffering the impairment of a liberty interest or the loss of
a property right. Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 61 L. Ed 2d 560
(1979) ("[A] person cannot incur the loss of liberty for an offense without notice and a
meaningful opportunity to defend."); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976) ("The fundamental requirement of due process is the
opportunity to be heard 'at a meaningful time and in a meaningful manner.'"). The
ordinance didn't afford fair notice. In addition, however, the Court rejected the imposition
of strict criminal liability for a wrong that consisted of inaction without something
more—a concept tied to a substantive due process liberty interest rather than purely
procedural due process considerations.
Particularly pertinent here, the Lambert Court's analysis, short as it is, functionally
treated actual notice as a proxy for intent in gauging a constitutionally acceptable
criminal violation of the ordinance. The Court did not analyze the constitutional defect in 52
the ordinance as a lack of intent. But the inevitable byproduct of its requirement for
actual notice is a form of criminal intent to convict.
The Court found actual notice to be a necessary element to convict consistent with
the Due Process Clause. If Lambert or any similar defendant had actual notice, then their
failure to register would be in contravention of that notice and their knowledge of the
ordinance's requirements. In that light, the failure to register would demonstrate a
deliberateness consistent with general criminal intent or a traditional mens rea. Thus, if a
strict liability crime constitutionally requires a defendant to have actual notice of the
wrong because the wrong consists of a failure to act that is not itself apparently wrongful,
then that requirement builds in a criminal intent. In other words, a failure to act with
actual notice of the obligation to act evinces a form of bad intent duplicating a mens rea.
The Illinois Supreme Court employed that reasoning to uphold the penal
provisions of that state's registration and reporting statutes covering convicted sex
offenders. People v. Molnar, 222 Ill. 2d 495, 523, 857 N.E.2d 209 (2006). The statutes
ostensibly imposed strict liability felony penalties for noncompliance. But the court found
the scheme required actual notice to the sex offenders of their registration and reporting
obligations to convict. The court described the notice requirement as "'built into'" the
definition of the crime of failing to register. Accordingly, a defendant could not be
"subject to a severe penalty for an offense he might unknowingly commit." 222 Ill. 2d at
523. Consistent with Lambert, the court effectively imputed a general criminal intent
component to the offense, since a defendant could be convicted only for a knowing
violation.[4]
[4]In a curious feat of judicial analysis in Molnar, the Illinois Supreme Court
discussed and initially distinguished Lambert because the registration requirement in the
Los Angeles ordinance applied to all convicted felons and the Illinois statutes applied
only to convicted sex offenders. The court also pointed out that convicted sex offenders
typically would be informed of their statutory duty to register and, therefore, would have 53
actual notice. 222 Ill. 2d at 513. Later in the opinion, the court held actual notice to be a
necessary component of the crime of failing to register or report and drew heavily on the
reasoning in People v. Patterson, 185 Misc. 2d 519, 708 N.Y.S.2d 815 (2000), that
considered New York's sex offender registration statutes. 222 Ill. 2d at 523. The
Patterson court, in turn, explicitly relied on Lambert to conclude that registrants had to be
given fair or actual notice of their statutory obligations before they could be criminally
prosecuted for a failure to comply. 185 Misc. 2d at 533-34.
Consistent with Lambert and Molnar, the penal provisions of KORA should be
suffused with an actual notice requirement. To be constitutionally tolerable, K.S.A. 2019
Supp. 22-4903 must be construed to include actual notice as a condition precedent for
successful prosecution, so a defendant cannot "unknowingly commit" a violation—to
borrow the Illinois Supreme Court's phrase. A constitutionally mandated notice element
then creates a concomitant intent that precludes conviction for an unwitting or good faith
failure to comply with KORA. That roughly corresponds to requiring a "reckless"
criminal intent or culpable mental state as defined in K.S.A. 2019 Supp. 21-5202(j). So
violent offenders with actual notice of the KORA registration and reporting requirements
could be convicted if they "consciously disregard[ed]" the "substantial . . . risk" of
criminal prosecution they faced for failing to comply. See K.S.A. 2019 Supp, 21-5202(j)
(defining "reckless" culpable mental state).
Genson's prosecution and conviction fell constitutionally short on that score. To be
sure, Genson received actual notice of his duties under KORA and complied with them
for a time. But the due process considerations of actual notice for a strict liability crime
premised on punishing inaction necessarily impute a form of intent extending to the
particular failure to comply. So the constitutional violation is this:
1. Genson had to receive actual notice of his registration and reporting obligations
under KORA as a matter of due process, especially given the substantial criminal
penalties.54
2. To be successfully prosecuted, Genson had to act in disregard of that notice
when he failed to report. In other words, Genson could not be convicted if the failure
were unwitting or otherwise in good faith.
3. Genson proffered evidence that he was mentally debilitated in November 2017
and did not then appreciate or understand his obligation to register and report under
KORA.
4. Genson was precluded from presenting evidence or having the jury consider his
inability to appreciate or understand his KORA obligations, so he was convicted of what
may have been an unknowing violation that cannot be reconciled with actual notice and
the due process rights actual notice protects.
In short, the jury was not instructed on any notice due under KORA or that a
failure to register or report had to be in derogation of that notice—implicating some
measure of intent. The jury was required to find only that Genson had been convicted of a
nonsexual crime covered under KORA, an element that was never in dispute, and that he
failed to report in November 2017, which wasn't factually in dispute, either. As a result,
Genson was barred from presenting a legitimate due process defense consistent with
Lambert.
During the trial, Genson objected to the instruction defining the crime and had
submitted a proposed instruction that included a mens rea element. I would conclude the
district court's jury instruction on the elements of a KORA violation for failing to register
or report was erroneous, and Genson preserved the issue. We would then examine
whether "there is a 'reasonable probability that the error . . . did affect the outcome of the
trial in light of the entire record.'" State v. Plummer, 295 Kan. 156, 168, 283 P.3d 202
(2012) (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011]). Even if the
instructional issue had not been preserved, we would review for clear error—a more 55
stringent standard demanding we be firmly "'convinced that the jury would have reached
a different verdict'" had a proper instruction been given. State v. Pulliam, 308 Kan. 1354,
1369, 430 P.3d 39 (2018); see State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012)
(recognizing standard for clear instructional error). Under either standard, I am persuaded
the jury verdict could well have been different. The narrow remedy would require a
reversal of Genson's conviction and a remand to the district court for a new trial with a
jury instruction requiring the prosecution prove a reckless culpable mental state. At that
trial, Genson could offer evidence that he did not wittingly or consciously disregard
registering in November 2017.
More broadly, however, Lambert underscores the constitutional flaw in the
KORA's penal provisions for noncompliance. The decision recognizes actual notice of a
registration obligation for convicted felons as an antidote for a strict liability crime
punishing a failure to register, when the act itself is not intrinsically harmful or
dangerous. The Kansas appellate courts have construed KORA to permit convictions of
defendants even though they have received incomplete notice or no actual notice of their
registration and reporting obligations, despite the statutory duty of district courts and
registering law enforcement agencies to inform them. See State v. Marinelli, 307 Kan.
768, 790-91, 415 P.3d 405 (2018); State v. Anderson, 40 Kan. App. 2d 69, 71-72, 188
P.3d 38 (2008). The failure to require actual notice renders K.S.A. 2019 Supp. 22-4903
constitutionally deficient as a strict liability crime.
6. Majority's Defense of K.S.A. 2019 Supp. 22-4903
The majority offers an array of arguments propping up the criminal penalties for
failing to register and report under KORA. The defense of K.S.A. 2019 Supp. 22-4903
includes misguided constitutional analysis or inapposite authority and reasoning passed
off as analogous.56
● The majority submits the Legislature has the authority to enact strict liability
offenses. And that's true. But the Legislature does not have the constitutional power to
impose severe criminal penalties without an element of bad intent for what amounts to
malum prohibitum conduct (really, inaction) as it has done in K.S.A. 2019 Supp. 22-
4903. The majority tries to blunt that constitutional limitation because the United States
Supreme Court has never articulated a specific formula or test to assess whether a strict
liability crime satisfies the Due Process Clause or other constitutional restraints.
In a series of cases beginning with Morissette, a decision sometimes described as
the first modern articulation of principles shaping strict liability offenses, the United
States Supreme Court has identified various considerations bearing on their constitutional
propriety. The confluence of harsh felony penalties criminalizing inaction without
requiring any intent in furtherance of, at best, a limited public welfare objective in K.S.A.
2019 Supp. 22-4903 falls far short of what the Court has outlined as acceptable across
those cases. To hold otherwise reflects an unwillingness to assay that legal ground and to
mine the guiding principles readily found there. Although the Court has not offered a
comprehensive standard or bright-line rule for when strict criminal liability exceeds
constitutional limits, it has established rough measures dividing permissible from
impermissible. As I have outlined, K.S.A. 2019 Supp. 22-4903 falls on the impermissible
side of the division by some margin.
The majority cites State v. Mountjoy, 257 Kan. 163, 177, 891 P.2d 376 (1995), to
demonstrate the Legislature's prerogative to enact strict liability offenses. In Mountjoy,
the court held that K.S.A. 65-2803, the statute imposing civil and criminal sanctions on
persons practicing a healing art in Kansas without having been licensed or after having
their licenses revoked, created a strict liability crime punishable as a class B
misdemeanor. The court pointed to the immediate and substantial adverse impact an
unlicensed practitioner could have on the public health as warranting strict criminal
liability. 257 Kan. at 177 ("Among all the objects sought to be secured by government, 57
none is more important than the preservation of the public health."). In reaching its
conclusion, the court catalogued strict liability offenses the Legislature had enacted—a
compilation the majority recites. See 257 Kan. at 175-76. They all carried mild penalties,
as did the unlicensed practice of the healing arts.
That exercise does nothing to advance the majority's conclusion upholding the
penalties in KORA for failing to register or report. This case doesn't call into question the
Legislature's authority to adopt strict liability offenses punishable as misdemeanors. And
certain actions may be considered so closely tied to an immediate danger to the public
health, safety, or welfare that the Legislature presumably can constitutionally permit
strict liability felony penalties, especially in those highly regulated industries and
endeavors that put diligent participants on alert to examine their statutory duties and the
concomitant liabilities for noncompliance. In 2014, the Legislature upped the crime of
practicing a healing art without a license from a class B misdemeanor to a severity level
10 nonperson felony effective in 2015. See L. 2014, ch. 131, § 6; K.S.A. 65-2803(d). The
appellate courts have not been called upon to consider the enhanced penalties. But
KORA's penalties for convicted violent offenders and drug offenders stand apart, given
the much harsher penalties visited on inaction posing no similar danger.
The majority also cites United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66
L. Ed. 619 (1922), and United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604
(1922), to support its position. But those companion cases are outliers in the present-day
world of strict liability offenses. They uphold statutes Congress enacted a hundred years
ago to combat the burgeoning use and abuse of opiates consistent with what was
considered the federal government's comparatively restrained legislative authority under
the Commerce Clause of the United States Constitution. The statutory measures did
impose substantial felony penalties without proof of a mens rea. Those efforts, of course,
have given way to a comprehensive statutory scheme defining a variety of serious drug
offenses that do require proof of criminal intent. Part D of the United States Code, Title 58
21; see, e.g., 21 U.S.C. § 841 (2018). Contrary to the majority's suggestion, the
Morissette Court endorsed neither those statutes nor the decisions in Behrman and Balint.
The Court characterized the conclusion in those cases as having "our approval and
adherence for the circumstances to which it was there applied"—elegantly and graciously
confining the holdings to their facts. 342 U.S. at 260.[5]
[5]The majority does not mention another outlier that imposes a form of strict
liability for a serious felony: sexual intercourse with an ostensibly consenting child
under the age of consent. In both its common-law and statutory iterations, the crime
brooked no defense because the offender reasonably believed the victim to have been
over the age of consent. Historically, the crime aimed to protect girls too young to
knowingly make decisions to voluntarily participate in the sex act. See 65 Am. Jur. 2d
Rape § 11 (elements of statutory rape); 6 Am. Jur. 2d Proof of Facts 63, Mistake as to
Age of Statutory Rape Victim § 1 (historical basis for crime). The modern statutory
version typically protects victims regardless of their gender. See, e.g., K.S.A. 2019 Supp.
21-5503(a)(3) (rape is "sexual intercourse with a child who is under 14 years of age").
Statutory rape serves an entirely appropriate public policy objective in deterring specific
conduct viewed as repugnant for centuries. But the nature of the crime and its extended
history keep it from serving as a significant precedent for strict liability offenses
generally.
● The majority fumbles the necessary constitutional analysis by failing to
acknowledge that the right to be free from unwarranted government internment, whether
it be imprisonment or some other form of detention, is a fundamental liberty interest
protected as a matter of substantive due process. The omission sets off a cascade of
constitutional premises that are inapplicable. For example, K.S.A. 2019 Supp. 22-4903
cannot be accorded a presumption of constitutionality, and Genson does not carry the
burden of proving the statute's unconstitutionality. Likewise, the majority concludes
K.S.A. 2019 Supp. 22-4903 can be upheld even if it bears only some attenuated
relationship to a public purpose, thereby invoking an incorrect and entirely too lax
standard of judicial review.
● The majority makes much of cases upholding the federal Sex Offender
Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq. (2018), requiring 59
reporting and registration of convicted sex offenders. But the argument is doubly off the
mark. First, SORNA applies only to sex offenders and does not address violent offenders
at all. So the federal scheme is substantively distinguishable for that reason alone.
Moreover, those cases affirm the registration and reporting obligations of SORNA
without considering the punishments for noncompliance. Here, Genson is challenging
only the strict liability criminal penalties imposed in K.S.A. 2019 Supp. 22-4903 for
violating the registration and reporting requirements.
Unlike KORA, SORNA imposes criminal penalties on a covered person who
"knowingly fails to register or update a registration as required." 18 U.S.C. § 2250(a)(3)
(2018). So SORNA requires proof of a general criminal intent to convict. See United
States v. Fuller, 627 F.3d 499, 501 (2d Cir. 2010) (criminal enforcement provision of
SORNA establishes "a general intent crime"), vacated on other grounds 565 U.S. 1189,
132 S. Ct. 1534, 182 L. Ed. 2d 152 (2012); United States v. Voice, 622 F.3d 870, 876 (8th
Cir. 2010). Contrary to the majority's suggestion, SORNA does not create a strict liability
crime for noncompliance.
The majority also cites cases from Iowa and Illinois ostensibly for the proposition
that strict liability criminal sanctions in registration and reporting statutes comparable to
KORA have withstood substantive due process challenges. Neither case does that work.
In In re Detention of Garren, 620 N.W.2d 275, 277 (Iowa 2000), the Iowa
Supreme Court upheld a statutory scheme civilly committing violent sexual predators for
care and treatment. The Iowa commitment statutes were comparable to the Kansas
Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., and the court turned away a
narrow substantive due process argument that the scheme was constitutionally infirm
because it provided no less restrictive treatment placements to custodial inpatient care.
620 N.W.2d at 285. The Garren decision has no direct or analogous application to the
constitutional propriety of the penal provisions in KORA.60
In People v. Malchow, 306 Ill. App. 3d 665, 672-73, 714 N.E.2d 583 (1999), the
Illinois Court of Appeals upheld the State's statutory registration and reporting
requirements for convicted sex offenders against a due process challenge. In doing so, the
court relied on the heightened danger convicted sex offenders pose to the general public,
presaging the United States Supreme Court's analysis and conclusion in Smith, 538 U.S.
at 103, 105-06. 306 Ill. App. 3d at 672-73. Malchow separately challenged the penalty
provisions of Illinois scheme that treated the failure to comply as a felony; he argued the
punishment violated the Ex Post Facto Clause and the Eighth Amendment of the United
States Constitution. The court rejected those challenges. 306 Ill. App. 3d at 668-71. But
Malchow did not argue the penalties violated his substantive due process liberty interests.
And the court, therefore, did not address the point. The Malchow decision does little, if
anything, to support the majority here. The majority does not mention the Illinois
Supreme Court's later decision in Molnar that, as I have discussed, effectively imputes a
de facto intent element to the penal provisions of that state's registration scheme for
convicted sex offenders.
● The majority suggests any constitutional defect in the KORA penalty provisions
doesn't matter here because the district court imposed a departure sentence on Genson to
place him on probation rather than ordering him to prison. But the argument is a legal
non sequitur. Simply because a defendant—here Genson—has received a lenient
sentence in a particular case in no way undoes or even mitigates a fundamental
constitutional deficiency in the statute occasioning the prosecution and punishment.
Substantive due process protections do not wane on a district court's discretionary
decision to temper its sentencing of a particular defendant. More to the point, perhaps,
Genson has a felony conviction he should not.61
Outcome: Cast as strict liability crimes with harsh felony punishments imposed on the
statutorily defined class of violent offenders without some form of bad intent, the penal
provisions of KORA violate the Due Process Clause. They impermissibly burden a
substantive due process right to liberty extended to all citizens, including convicted
criminals. KORA criminalizes inaction that does not itself pose some risk or danger, and
the registration of violent offenders has not been shown to advance a significant public
welfare purpose in contrast to registration of convicted sex offenders.
The combination of those factors renders K.S.A. 2019 Supp. 22-4903
unenforceable under the Due Process Clause. Genson's conviction should be reversed,
and his sentence should be vacated.
As I have suggested, there is no judicial fix for the constitutional defects in K.S.A.
2019 Supp. 22-4903. Two legislative options might be constitutionally acceptable. One
would be a reversion to misdemeanor penalties for reasonably defined KORA violations
imposed without criminal intent. Under that sort of penalty provision, Genson
presumably would be guilty in this case.
The other would be reasonable felony penalties conditioned on actual notice to
registrants and an intent on their part to evade registration and reporting. A combination
of notice and a reckless culpable mental state would avert perceived fears that delinquent
KORA offenders could successfully interpose an "I forgot" defense to prosecutions for
failure to comply. As I have pointed out, recklessness, as a mens rea, has been proved
when a person "consciously disregards a substantial and unjustifiable risk . . . that a result
will follow." K.S.A. 2019 Supp. 21-5202(j). The disregard entails "a gross deviation from
the standard of care which a reasonable person would exercise in the situation." K.S.A.
2019 Supp. 21-5202(j). Individuals on notice that they could be charged with a felony for 62
not registering and reporting would act recklessly if they failed to take steps to document,
remember, and then adhere to those obligations. With that sort of penal sanction, an "I
forgot" defense should be unsuccessful, although juror skepticism or even nullification
might loom in a given case. Genson, however, would have had an entirely legitimate
defense based on his mental incapacity in November 2017.
Those choices would be for the Legislature to make in the first instance, so I offer
no further opinion on them. And since I am writing in dissent, any observations would be
purely hypothetical.
But the Legislature constitutionally overstepped when it stripped away any intent
or mens rea component for the incrementally more punitive penalties for noncompliance
with KORA imposed on violent offenders, including Genson. The result cannot be
reconciled with the substantive due process liberty interest grounded in the Fourteenth
Amendment and longstanding constitutional limitations on the criminal law the United
States Supreme Court has recognized to be necessary for the protection of that
fundamental right. KORA stripped Genson of those protections and, therefore, deprived
him of his constitutional rights
Plaintiff's Experts:
Defendant's Experts:
Comments: