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Court: Man may be classified as sexually violent predator

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The Indiana Supreme Court ruled 4-1 that classifying a man as a sexually violent predator due to an amendment to the Sex Offender Registration Act doesn’t violate Indiana’s prohibition of ex post facto laws or the doctrine of separation of powers.

Michael Harris challenged being classified as a sexually violent predator and the requirement that he must register for life instead of 10 years. When he pleaded guilty to Class B felony child molesting in April 1999, “sexually violent predator” status did not exist. He was required to register for 10 years on the sex offender registry after his release from prison. He was released in December 2008.

Based on a 2007 amendment to the Indiana Sex Offender Registration Act, the Department of Correction notified Harris that he was required to register as a sexually violent predator and register for life. The 2007 amendment says “a person is an SVP ‘by operation of law if an offense committed by the person [is a qualifying offense] and the person was released from incarceration, secure detention, or probation for the offense after June 30, 1994.’”

He filed suit while still incarcerated. The trial court ruled in favor of Harris, granting a declaratory judgment and injunctive relief, thereby removing his SVP status. The Indiana Court of Appeals affirmed.

In Bruce Lemmon, et al. v. Michael L. Harris, No. 52S02-1011-CV-642, the justices ruled on June 28 that based on the plain language of the statute, the amendment applies to Harris. Using the seven factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the majority found the first three factors – whether the sanction involves an affirmative disability or restraint; whether it has historically been regarded as punishment; and whether it comes into play only on a finding of scienter – lean in favor of treating the act as punitive. But the last four factors – whether its operation will promote the traditional aims of punishment; whether the behavior to which it applies is already a crime; whether an alternative purpose to which it may rationally be connected is assignable for it; and whether it appears excessive in relation to the alternative purpose assigned – lean in favor of treating the act as nonpunitive when applied to Harris, wrote Justice Frank Sullivan.

Justice Brent Dickson dissented on this issue, citing former Justice Theodore Boehm’s dissent in Jensen v. State, 905 N.E.2d 384, 396-98 (Ind. 2009). Justice Dickson believed the reclassification and resulting enhanced requirements under the 2007 amendment constitute additional punishments when applied to Harris.

The high court also addressed an issue recently raised in Ohio but not yet discussed here: whether the act violates the constitutional principle of separation of powers. The Ohio State Supreme Court ruled on a similar issue, finding certain provisions unconstitutional in that state’s Adam Walsh Act that required the attorney general to reclassify sex offenders who had already been classified by court order under a former law.

But Indiana’s “by operation of law” clause doesn’t work to reopen a final judgment. Harris’ case isn’t one where the sentencing court considered expert testimony and expressly refused to classify him as an SVP. The clause did not change a judicial determination that Harris was not an SVP to him being one. Nor does the clause remove the judiciary’s discretionary function in sentencing and place it with the DOC, wrote Justice Sullivan.

“The statute does not grant the DOC any authority to classify or reclassify. SVP status under Indiana Code section 35-38-1-7.5(b) is determined by the statute itself,” he wrote, pointing out that offenders may petition the court to remove his or her designation or to make the registration requirement less restrictive by filing a petition in court.

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  1. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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