ACLU of Kentucky

Todd and Logan County Circuit Courts

In September 2006, the ACLU of Kentucky received complaints on behalf of several Latin Americans who were detained by Judge Sue Carol Browning, a state district court judge.  Earlier in the year, Judge Browning began asking individuals who seemed to be from Latin America for proof of their citizenship status, even though they appeared on minor traffic violations or misdemeanor charges, not anything related to immigration.  Judge Browning then "deported" from the state those who were unable to produce adequate documentation, by ordering them to leave (sometimes within 72 hours) and stay out of Kentucky.

The Administrative Office of the Courts — the administrative arm of the state judicial system — informed Judge Browning that she lacked authority to banish people from the state.  In response, in late August, Judge Browning again asked individuals appearing in front of her for proof of immigration status.  She then announced from the bench to those unable to produce documentation that, because she could no longer order people to leave the state, she would detain them for deportation.  She then called federal immigration officials and requested that they deport the detainees.  (At least one was a legal permanent resident.)  When federal authorities refused, Judge Browning ordered that the individuals be detained indefinitely.

The ACLU of Kentucky, along with the national ACLU Immigrants’ Rights Project, helped secure full public defender representation for the detainees.  In a stinging rebuke, Circuit Court Judge Tyler Gill promptly overturned Judge Browning’s detention orders.  Judge Gill noted that "the rule of law has been inexplicably ignored or abandoned by the very institution entrusted to uphold it."  By ordering indefinite detentions, Judge Browning had violated the federal and state constitutions and "the basic human right to liberty and due process."  Judge Gill noted that, while Judge Browning may have been frustrated by immigration officials’ refusal to begin deportation proceedings, this did not give the court the authority to take matters into its own hands:  "Laws setting forth a legal process designed to handle illegal aliens are in place.  The fact that these laws are not being enforced may tempt vigilantes to take the law into their own hands  ...  Whether or not legally in the United States, the [detainees] are fellow human beings and deserve to be treated as such.  It is unconscionable and absurd to use the innocent and helpless as fodder in this battle."

Franklin County Circuit Court

In September 2005, Kentucky, at Secretary of State Trey Grayson’s urging, entered into a project with Tennessee and South Carolina to compare voter databases. The three states sought to identify individuals who were registered to vote in more than one state and then purge the “matching” voters with the earlier registration date. A month before the May 2006 primary, Kentucky election officials purged 8,105 names from the list of eligible voters.

Kentucky Attorney General Greg Stumbo filed suit shortly afterwards, alleging that the purge unlawfully  cancelled voters without notice and failed to place voters on an inactive list, as required for those who have changed addresses.  The Board of Elections argued that appearing on another state's voter rolls was akin to a request to be removed from Kentucky's voter list, so the protections normally afforded to voters who move do not apply.

The ACLU of Kentucky was part of a coalition of voting rights organizations, including the League of Women Voters of Kentucky, Project Vote, and Common Cause of Kentucky, in filing a "friend of the court" brief in support of the Attorney General's argument.  Louisville attorney Tom Schulz served as our cooperating attorney.

In October 2006, Franklin Circuit Court Judge Thomas D. Wingate ruling that the purge of names violated Kentucky election law.  Judge Wingate concluded that Kentucky voters who registered in another state had a change of address, not a request that their name be purged from Kentucky’s voter roll.  He ordered that the names of those who were purged be placed on an inactive voter list for two federal election cycles, as is required under Kentucky and federal law for voters who have changed their address. 

Pending without litigation

In 2006, Kentucky amended its residency restrictions for sex offenders.   The amendments prohibit all individuals on the Kentucky Sex Offender Registry from living within 1,000 feet of a school, day care, or park; under prior law, only those registrants on supervised release were subject to this restriction.  In addition, unlike under the law’s prior version, the 1,000 feet is measured property line to property line, not door to door.  The law applies to all registrants, regardless of the crime they committed, the length of time since the offense, or their current risk of harm.  (The amended law applies fully to registrants with no history of crimes against children.)  As a result, hundreds of individuals must leave their homes — sometimes homes that they own — and uproot their families, or live separately from their families.

Courts have not been sympathetic to the legal arguments against similar laws; as a result, we have not yet joined in any litigation challenging the amended restrictions.  Instead, the ACLU of Kentucky is working with attorneys, registrants, treatment professionals and law enforcement officials in seeking a statutory change.  We argue that there is no evidence that residency restrictions reduce the risk of re-offense and, in fact, some evidence that such restrictions increase rates of re-offense by destabilizing the lives of low-risk offenders.  We will continue to work with others seeking a law that more effectively protects the public from higher-risk offenders, while simultaneously protecting the rights of lower-risk registrants.

Resolved without litigation

We received notice early in 2006 that a woman might face prosecution in Kentucky for fetal homicide.  The woman, who had a history of drug abuse (and efforts at recovery), discovered that she was pregnant.  When her baby was stillborn, prosecutors considered criminal prosecution.  The ACLU of Kentucky, along with the national ACLU’s Reproductive Freedom Project, convinced prosecutors that current Kentucky law does not support such a prosecution.  The ACLU argues that it is counterproductive to punish drug addicts who become pregnant, because their continued substance abuse during pregnancy is a public health issue, not a criminal justice one.  Although the prosecutor agreed not to prosecute this woman, similar prosecutions are on the rise nationally and we are likely to face the issue again in Kentucky.