ILNews

High court ponders sex-offender registry law

Michael W. Hoskins
January 1, 2008
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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.
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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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