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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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