ILNews

High court ponders sex-offender registry law

Michael W. Hoskins
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Supreme Court justices this morning listened to arguments in the cases of two convicted sex offenders who are challenging a state law requiring them to register for life on a public database, even though they weren't required to do so at the time of their criminal convictions.

The arguments came in the combined case of Todd L. Jensen v. State and Richard P. Wallace v. State, No. 02S04-0803-CR-137, which delves into issues with the state's sex-offender registry the court hasn't explored before. The full webcast can be viewed online.

The Jensen case comes from Allen Superior Court, where in 2000 Todd L. Jensen pleaded guilty to various child-related crimes and was required to register as a sex offender for 10 years. But in 2006 after Jensen had been released from probation two years earlier, Superior Judge Frances Gull determined he should be classified as a sexually violent predator and must register for life on the statewide registry. The Court of Appeals reversed that decision in December, finding that it violated ex post facto considerations and determined that Jensen should abide by the 10-year registration requirement.

In Wallace, Richard P. Wallace pleaded guilty in 1989 to a child-molestation charge, served his sentence that included only probation ending in 1992, and learned almost a decade later that he would have to register for life as a sex offender. Wallace refused and was charged in Marion County with a felony of failing to register as a sex offender. The Court of Appeals rejected Wallace's arguments and affirmed his conviction in January, finding the requirement that he register for life didn't violate the prohibition against ex post facto laws.

During today's arguments, justices seemed torn between defense attorneys questioning what is considered fair punishment for offenders who'd already served their time while hearing arguments from the Indiana Attorney General's Office that these requirements don't stray from the statutory scheme allowed by the Supreme Court of the United States.

Kathleen Sweeney, who represents Wallace, urged the court to "give new life to the Indiana Constitution as you have in other contexts."

She noted that her 52-year-old client is now subject to four possible crimes that weren't in place at the time of his sentencing - failure to register, living within 1,000 feet of a child-frequented area, failure to carry identification at all times when on the registry, and that violent sex offenders can't be employed anywhere children might be nearby.

If her client wanted to move to California, he'd have to continue registering for life in Indiana about his residence on the West Coast, Sweeney said answering a question from Justice Frank Sullivan.

"This is like an additional condition of probation that never ends that he wasn't informed of at the time of sentencing," she said.

Jensen's attorney, Randy Fisher, pointed out to the court that when his client was sentenced, Jensen had to meet only six requirements when registering, such as showing ID and providing specific details about his name, address, and employment. Now, the legislature has boosted that number of requirements to 29 and proposed legislation is being drafted to even include more.

Judicial discretion to determine whether someone should be placed on the registry has been taken away, both defense attorneys argued.

At several points, the justices delved into related sex-offender laws and the cumulative effect of all sex-offender restrictions; one came up Tuesday in an Indiana Court of Appeals decision that found the state's law unconstitutional in prohibiting certain sex offenders from living within 1,000 feet of any place children may congregate.

But J.T. Whitehead, deputy attorney general, focused the points on ex post facto arguments and didn't venture into due process or post-conviction areas that were also mentioned.

Justice Ted Boehm asked Whitehead about the basic fairness of these requirements, which he said could be considered by most to be burdensome if not punitive for someone who'd gone through the legal system and served his time and then found out about new requirements more than 10 years later.

"Isn't there something wrong with that picture?" Justice Boehm asked.

"Not according to the U.S. Supreme Court," Whitehead responded, citing caselaw that holds ex post facto considerations don't preclude states from being able to make judgments and attach regulations based on a type of offense. "How this statute feels isn't what we're here to talk about. This isn't a due process challenge, it's an ex post facto challenge."

Whitehead said these sex-offender registry requirements started nationally in 1994 and mostly stem from Megan's Law at the federal level, which was brought about by the kidnapping, rape, and murder of 7-year-old Megan Kanka by a repeated sex offender in New Jersey.

Justice Boehm pointed out that when Indiana lawmakers first adopted the statute at that time, it only applied to those offenders convicted after 1994. That could be used to show that lawmakers thought it might be punitive to make the law retroactive, he said.

Whitehead told the justices that extending the registration requirement from 10 years to 11, 12, or even to life isn't considered burdensome or punishment.

Justice Sullivan pointed out that, under this law, anyone ever convicted of a sex offense could be required to do whatever the legislature requires at any point in the future. He posed a hypothetical about someone convicted of a marijuana possession charge, and what might happen if the lawmakers required that person to register as a "potentially reoffensive drug abuser" and fulfill certain requirements.

Whitehead responded that courts would have to analyze any particular situation and piece of legislation, and that legislative intent could be determined to be punitive in that type of situation.

But these challenges do not rise to that punitive level and can't be mixed into other laws impacting certain sex offenders, he said.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

ADVERTISEMENT