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COA upholds violent offender registration

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The Indiana Court of Appeals affirmed that the state's sex and violent offender registry doesn't violate the Indiana Constitution by requiring violent offenders to register for a 10-year period or for life. The appellate court also overturned a Marion Superior Court judge's grant of a preliminary injunction barring lifetime registration by certain violent offenders, finding the injunction should only apply to a specific subclass of offenders.

In James Gibson, Mark Lamar, and John Doe, and others similarly situated v. Indiana Department of Correction, et al., No. 49A04-0803-CV-165, Gibson and other plaintiffs challenged the amendments to Indiana's statute creating a sex and violent offender registry, which required violent offenders to register for either 10 years or for a lifetime depending on the crime and other circumstances. The plaintiffs are all violent offenders and believe the recently amended statute, Indiana Code Section 36-2-13-5.5, violates Article I, Sections 12 and 23 of the state's constitution.

The plaintiffs argue the registry violates the Privileges and Immunities clause in Section 23 because it requires registration by people convicted of only certain crimes that caused death. The Court of Appeals agreed with the trial court that the registry is for people who "have demonstrated intentional violent deadly behavior towards another person."

Those who commit lesser crimes that happen to result in death haven't demonstrated the intentional violent deadly behavior toward another person that would require compliance with the registry, wrote Judge Terry Crone. There are sufficient inherent differences between murder, felony murder, voluntary manslaughter, and attempts to commit those crimes as compared to other offenses resulting in death that allow the General Assembly to specify different treatment, the judge continued.

The appellate court also affirmed the registry doesn't violate Section 12 because there is some recidivism among violent offenders, which means community notification about violent offenders provides an opportunity for enhancing public safety. Requiring violent offenders to register for at least some period of time meets the low threshold of rational relation, wrote Judge Crone.

The plaintiffs failed to meet the requirements for a preliminary injunction on registration, except for a small subset who have been more than 10 years removed from the date of release from prison, placed on parole or probation, put in community corrections, and aren't violent sexual predators. The Court of Appeals reversed the grant of a preliminary injunction against lifetime registration for all violent offenders and remanded with instructions to clarify the preliminary injunction consistent with the opinion. A violent offender is required to comply with the registry for 10 years unless he or she also falls within a subsection of the statute requiring lifetime registration, wrote Judge Crone.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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