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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

ADVERTISEMENT