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Annual Supreme Court review shows more agreement, shifts in alignment

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Welcoming a new justice was undeniably the most notable moment for the Indiana Supreme Court in 2010. That lineup change captured the headlines, but it’s not the only item of interest for Indiana court-watchers.

Activity before and after the retirement of Justice Theodore Boehm and the addition of Justice Steven David in the fall of 2010 provides context for how that personnel change has impacted the court, and it offers a crystal ball of sorts for lawyers to use when deciding how to advise their clients.

iscIndianapolis attorneys P. Jason Stephenson and Mark Crandley, along with associates Jeanine Kerridge and Jeff Peabody, all of Barnes & Thornburg, have finished their latest annual review of the state Supreme Court’s activity. The review is published each summer in the Indiana Law Review, and this is the 20th time the report’s been compiled since Indianapolis attorney Kevin Betz started it back in 1991.

What makes this year’s review stand out the most is that it reaches back more than a decade to the last time Indiana experienced a change in justices. But the shift in the court is only part of the story, according to one of the review’s main authors.

Already this year, Justice David’s impact has been pivotal in reshaping alignments between the other justices and his presence is casting a new tone for the court. His voice is even recasting some of the final decisions made by Justice Boehm before his departure.

“That transition is certainly significant, you can’t overlook it,” Stephenson said. “When writing a transfer petition or arguing at the court, you’ll want to consider

his views to the extent that you can because his opinion clearly matters as the review shows. But it’s one piece of a more interesting puzzle that had some surprises last year.”

Overall workload

This year’s review shows the justices handed down 108 opinions in 2010, an increase from the past two years and the first time since 2006 that the court topped 100. Stephenson speculated that Justice Boehm’s departure in September and Justice David’s arrival in October might have motivated the justices to focus more on pending cases and issues, but that’s not something he can determine from the data.

A multi-year trend continued with a drop in the number of transfer requests – 190 less than the year before and the third straight decrease.

“There is no obvious explanation for this trend,” the review states. “One factor might be that the bar has become more educated about the chances that transfer will be granted and lawyers have therefore become more selective.”

The court granted only 11.1 percent of requests, nearly two-thirds being civil cases. The number of reversals dropped again as the justices reversed in only 63.5 percent of the cases it accepted.

All together, Stephenson says the trend is clear: You’re still likely to have a lower decision reversed if the court accepts an appeal, but it’s not as certain as it once was.

“It’s interesting to me to see the court is accepting more and affirming more, and it seems like the court is more often putting its stamp on an issue,” he said.

Agreement and alignments

One of the most-watched aspects of the annual review is how the justices vote on cases and how often they agree. In past years, disagreement has grown between the five jurists, and Justice Robert Rucker stood out – last year’s review designated him as “The Great Dissenter” because of the continued trend in his dissents.

But 2010 saw a change in agreement and alignment.

Unanimous opinions increased to 78 percent, up from the 63 percent unanimity in 2009 and 62 percent in 2008. Split decisions dropped last year – occurring in only 14 cases, compared to the 18 in 2009 and 23 in 2008.

“I was intrigued to see the agreement and it’s a fairly significant change,” Stephenson said. “It’s dangerous to ascribe that to any one factor, such as the types of issues, and it’s hard to say if that’s a trend or just a one-year event. We’ll have to watch that, particularly with Justice David a part of the court.”

The most noteworthy development is that Justice Rucker bucked the trend and agreed with the other justices (excluding Justice David) in an average 84 percent of all cases. He agreed with Justice Frank Sullivan 89.4 percent of the time, opposite from the year before when the two were the least aligned of any two justices. Three different pairs of justices were aligned more than 90 percent of the time on criminal cases – something that hasn’t happened in recent years. In 2009, the least aligned justices were Justices Sullivan and Brent Dickson at 78.1 percent.

indiana supreme courtAfter taking the bench, Justice David participated in 16 cases before the end of the calendar year and demonstrated what the review describes as “an early hint of how crucial the new justice’s views might be going forward.” Most notably, he was in the majority on all three split decisions covering the insanity defense, the Indiana High School Athletic Association transfer rule, and double jeopardy issues. No other justice was in the majority for all three. He disagreed with other justices more on criminal cases than civil, the review shows.

In the 1990s, when the court experienced more frequent personnel changes, a common trend could be found for new members – they often sided with the chief justice. That trend continued with Justice David. He agreed with Chief Justice Randall Shepard on all nine civil cases the court considered from the time Justice David joined the court in October to the end of 2010 and in 94 percent of all cases he considered.

Stephenson said the chief justice has proven an effective leader who is able to pull the other justices together, particularly since he’s been somewhat of a moderate voice on the court who doesn’t express as many clear points of view as do Justices Rucker or Dickson.

With the lineup change happening so late in the year, Stephenson admits that much of the full story comes after the review period. A clear example of how Justice David’s vote has changed an outcome is in the case of David Hopper v. State, the final decision Justice Boehm wrote days before leaving the court. The decision was 3-2, with Chief Justice Shepard and Dickson dissenting from the majority that ordered a new requirement for pro se defendants but offering little guidance for trial courts. Earlier this year the court agreed to rehear that decision, and if Justice David continues sticking with the majority, the case may have a different outcome.

“He doesn’t appear timid for taking responsibility on opinions on controversial issues,” Stephenson said. “It’s fascinating to see David start out of the gate so strongly, and shows his experience as a trial judge giving him that foundation. We’ll see if that continues or tapers off some the longer he’s on the court.”

As Justice Boehm was viewed as a moderate voice on the court, Stephenson said it will be fascinating to watch to see if the chief justice becomes that same kind of moderate presence or if the absence of that middle ground leads to more disagreement.•
 

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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