ILNews

Application of residency law unconstitutional

Rebecca Berfanger
January 1, 2008
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The Indiana Court of Appeals today upheld a lower court's ruling that in at least one case of the state's application of a law prohibiting violent and child sex offenders from living within 1,000 feet of a school or public area where children congregate is unconstitutional.

The ruling came in State of Indiana v. Anthony W. Pollard, No. 05A02-0707-CR-640. Judges heard arguments in the case March 31. The state argued that Indiana Code Section 35-42-4-11 was not considered ex post facto law as applied to Anthony W. Pollard, but the appeals court disagreed and affirmed a ruling by Blackford Superior Judge John Forcum that dismissed the felony charge against him.

At the time of his April 4, 1997, criminal conviction of committing a sex-related offense against a child, Pollard's home was within 1,000 feet of a school property, a youth program center, or a public park. He was not required to move away from his home as part of his sentence or as a result of his conviction. At the time he had lived there for about 10 years. That was nearly 10 years before the sex-offender residency statute went into effect July 1, 2006.

He still lives in the same home. On Jan. 26, 2007, the state charged Pollard with a Class D felony sex-offender residency offense. On March 2, 2007, Pollard filed a motion to dismiss. The trial court granted Pollard's motion to dismiss June 21, 2007, determining that Indiana Code section 35-42-4-11 violated the ex post facto prohibition contained in Article 1, Section 24 of Indiana's Constitution as applied to Pollard, adding that the application of Indiana Code Section 35-42-4-11 served to retroactively increase the punishment for the crime committed.

The state appealed, but the Court of Appeals agreed with the trial court.

"While we cannot speak to the purpose of the residency statute, we can observe its unmistakable effect," wrote Judge Paul D. Mathias. "The residency statute clearly increases the penalty applied to affected sex offenders by preventing those offenders from residing and taking full advantage of their ownership rights in property acquired prior to conviction and prior to the imposition of the statute. In contrast, the registration statute does not implicate any fundamental rights; rather, it places only an administrative burden on offenders."

Judge Mathias continued, "The residency statute also impinges upon one of this country's most closely held rights, the right to property."

The opinion also examines other states' versions of the sex-offender residency restrictions.
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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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