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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT