Court of Appeals Greenlights Legislature on Severe Punishments for Failing to Register

State v. Genson, No. 121,014, (Kan. Ct. App., Dec. 18, 2020).

Author: Ryan Gordon, Associate Editor

Issue: Is the Kansas Offender Registration Act (KORA) unconstitutional because it criminalizes failure to register as a level six person felony without a mens rea element?

Answer: No, KORA does not unconstitutionally violate the defendant’s substantive due process rights.

Facts: The State charged the defendant with failing to register under KORA.  Before trial, the district court denied the defendant the ability to present a mental disease and defect defense at trial because the crime was a strict liability offense.  The defendant was convicted at trial and was denied a motion to set aside the conviction for violating his due process rights.

KORA requires sex offenders, violent offenders, and drug offenders to register with local authorities at regular intervals. Violations of KORA are considered level 6 person felonies, punishable by presumptive imprisonment. Each instance of failure to report can be charged as a separate violation and repeat offenders can be sentenced under the guidelines for aggravated felonies.

Discussion: The majority held that, while most criminal offenses require a mens rea element, KORA fits under the public welfare exception, allowing for strict liability offenses. The punishment for this particular offender was not severe, although it could have been. However, severe punishment for KORA does not automatically violate due process. Using the rational basis test, the court did not overrule KORA.

The dissent disagreed, arguing that failure to fill out a registration form should not be punishable by severe penalties without requiring the state to prove some level of criminal intent. Over time, the legislature increased KORA penalties from a misdemeanor to a level six person felony and removed the requirement that the State prove general criminal intent. Additionally, the punishment fits with malicious crimes, not with other strict liability offenses. KORA violates due process regarding violent offender’s registration requirements and should be invalidated.

Key Authorities: Kan. Stat. Ann. § 22-4901 (Supp. 2019) (Kansas Offenders Registration Act (KORA)); Kan. Stat. Ann. § 21-5203(e) (Supp. 2019) (making KORA violations a strict liability offense); U.S. Const. amend. XIV; Kan. Const. Bill of Rights § 18; 34 U.S.C. § 20911 (Sex Offenders Registration and Notification Act (SORNA), the federal counterpart to KORA, determined not to be in violation of defendant’s due process rights.); Staples v. United States, 511 U.S. 600 (1994) (determining the test for strict liability offenses, particularly involving public welfare offenses with light penalties); Morissette v. United States, 342 U.S. 246 (1952) (setting out the fundamental principle of criminal liability).