Branded

Carl Folsom won in State v. Schad, No. 99,445 (Kan. App. April 24, 2009) reversing several conditions of probation imposed in a Stafford County aggravated indecent solicitation case. As a condition of probation, the district court placed Mr. Schad on house arrest for the entirety of the sixty-month probation, with permission to leave only to meet with his probation officer, attend sex offender treatment, and to attend medical appointments. The district court also required the placement of signs outside Mr. Schad's house saying a "Sex Offender Lives Here" and on his car stating that "Sex Offender In This Car."

The COA reviewed several out-of-state cases and held that the conditions imposed did not comply with the statutory requirement that probation terms reasonably relate to rehabilitation, which has been held to be the primary purpose of probation:

Here, in placing Schad on probation, the trial court declared that there was "little chance of recidivism." This was supported by the psychological evaluation report, which stated that Schad was not "a public risk." In the psychological evaluation report, Schad was described as "an aging person showing poor judgment in the face of mitigating circumstances." The trial court's stated reason for ordering the probation conditions requiring Schad to post signs around his house and on his car declaring his sex offender status was to protect people who were new to the community and might not know that Schad was a convicted sex offender. The trial court never pronounced a rehabilitative goal for imposing those probation conditions.

Moreover, a review of the record in this case fails to show how those probation conditions would fit within the bounds of rehabilitating Schad. To the contrary, the conditions would actually deter Schad's rehabilitation as they would make it nearly impossible for Schad to assimilate himself within the community. Everywhere Schad would go, he would be explicitly identified as a sexual offender. The probation conditions requiring Schad to post signs on his property and on his car represented the criminal act that he had committed and was a badge of shame for all to see. As noted by other jurisdictions, "the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate."

The COA went on to quote the lyrics to a mid-60's TV show called Branded about the tribulations of a man who was wrongly court-martialed for cowardice:

Branded!
Marked with a coward's shame.
What do you do when you're branded . . . ?
[McCord] was innocent, Not a charge was true.
And wherever you go
For the rest of your life
You must prove
You're a man!

The COA took judicial notice of the small size of the community involved and noted that with registration requirements and publication of that information, there was little safety provided by the measures ordered by the district court:

Under the facts of this case, the probation conditions requiring Schad to post signs around his house and on his car announcing his sex offender status were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society. In short, probation is not to shield guilty individuals from the consequences of their crimes, but it is an attempt to reform their attitudes about acting out in a criminal way. Here, the signage conditions made Schad an object of condemnation and ridicule. The signage conditions only confirmed society's outrage against Schad. The signage conditions were simply a punitive measure not reasonably related to rehabilitation.

As a result, the COA held that the conditions imposed were not authorized by statute.

Finally, the COA considered whether the house arrest condition that precluded Mr. Schad from going grocery shopping deprived him of an essential activity or privilege:

The legislature expressly included the sanction "deprivation of nonessential activities or privileges" but did not include its counterpart in the nonexclusive list under K.S.A. 21-4603b(d). This indicates a legislative intent not to include deprivation of essential activities or privileges as a house arrest sanction under K.S.A. 21-4603b(d). Moreover, although not argued by Schad, such a broad sanction depriving an individual of activities essential to his or her survival would likely be declared unconstitutional under the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. Based on a plain reading of the statute, it is clear that the legislature did not intend to give the trial court the authority to deprive an individual of an activity essential to daily living while on house arrest.

The probation condition prohibiting Schad from leaving the house to grocery shop would constitute deprivation of an essential activity unless Schad had other means of providing food for himself. The record in this case indicates that Schad was an elderly man living by himself. There is no evidence in the record showing that Schad had friends or family members living close to him who would be willing to do his grocery shopping. Under such circumstances, grocery shopping would presumably constitute an activity essential to daily living. In the absence of findings that Schad has the ability to obtain food by other others, the no grocery shopping condition cannot be ordered under K.S.A. 21-4603b(d).

Here is the report on this case in the Hutch News and here in the Wichita Eagle's story. The case also was commented on here in the Sentencing Law and Policy blog.

Here is a link to the theme from Branded for those of you who weren't watching NBC in the mid-60's.




Man, that's a long theme song! It reminds me of one of my favorite Chuck Conners theme:



No lyrics, so it will probably never make it into an appellate decision. But still a great theme, maybe, for a Second Amendment case?

[Update: the state did not file a PR and the mandate issued on May 28, 2009].