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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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