ILNews

Indiana sex offender parole conditions at issue

Back to TopCommentsE-mailPrintBookmark and Share

Indiana appellate judges are grappling with sensitive questions about whether the state’s automatic and uniform parole conditions for sex offenders are constitutional.

At issue in David Bleeke v. State of Indiana, 02A05-1201-PL-25, is whether the state’s Sex Offender Management and Monitoring program stipulations that restrict contact with children, including one’s own, should be applied to David Bleeke, who has no history of crimes against children.

An Allen Superior Court jury in 2005 convicted Bleeke of Class B felony attempted criminal deviate conduct with a woman who was older than 21. Bleeke also was convicted of residential entry in the case dating to 2002.
 

offenders02-15col.jpgPatrick Proctor argues to the Indiana Court of Appeals that the Sex Offender Management and Monitoring program’s conditions placed on his client David Bleeke are unconstitutional. (IL Photo/ Perry Reichanadter)

Bleeke, who now lives in Ohio with his longtime wife and family, maintains his innocence. His attorney argued before the Court of Appeals on Nov. 13 that doing so in the SOMM program cost him his liberty, at least temporarily. A treatment requirement for Bleeke was that he “accept responsibility” for the acts for which he was convicted.

Bleeke “went to jail over a weekend,” Fort Wayne attorney Patrick Proctor told the court, because he refused to accept responsibility and therefore was deemed in violation of stipulations of parole. “Compelling somebody to say something is a violation of the First Amendment,” Proctor said. “He can’t take responsibility for something that he says or believes that he did not do, and they don’t like that answer.”

Proctor argued that the SOMM program administered by Liberty Behavioral Health Corp. uniformly places parole conditions on offenders and fails to make individualized determinations of whether they pose a risk to children. Bleeke’s appellate brief states, “This program amounts to thought control and compelled speech and it requires parolees to incriminate themselves in violation of the First and Fifth Amendments” to the U.S. Constitution.

Bleeke, in 2010, won a preliminary injunction in a federal lawsuit in the U.S. District Court for the Northern District of Indiana, Bleeke et al v. Buss, 1:09-CV-228. Chief Judge Philip Simon ruled that failing to make an individualized determination on Bleeke’s risk to children violated due process.


offenders04-15col.jpgDeputy Attorney General David Arthur argues that the state has an interest in preventing crimes by a class of offenders with a higher risk of recidivism. (IL Photo/ Perry Reichanadter)

Deputy Attorney General David Arthur asked the court to lift a similar injunction granted by an Allen Superior Court that prevented the state from enforcing the provisions of Bleeke’s appeal that separated him from his wife, children and stepchildren. Arthur argued the state had an interest in preventing sex offenses, and that sex offenders as a class are likelier than others to reoffend and potentially “cross over” to crimes against children.

“The question is, what kind of percentage do we need before we can protect kids?”

Senior Judge Carr Darden and Judge Elaine Brown seemed skeptical. “We’re all subject to go out and rob a bank someday – maybe,” Darden said.

“Should not the (parole) conditions fit the person and his behavior?” Darden asked. Brown followed up by noting that Bleeke’s conviction involved digital penetration of an adult female.

“Nobody is saying he is a child molester,” Arthur said, at which point Brown interrupted. “Effectively you are, aren’t you?” she said, “by imposing the exact same conditions upon his release from prison as you do upon a child molester?”

“Sex offenders violate when they have opportunity,” Arthur replied.


offenders06-15col.jpgCourt of Appeals Judge Elaine Brown listens to Patrick Proctor’s argument. (IL Photo/ Perry Reichanadter)

“I can see the state needing some protection for children and so forth,” Darden said, “but I think it should be related to the individual” rather than “one size fits all.”

Registry caselaw evolves

A separate panel of the Indiana Court of Appeals earlier this month decided a case that could clarify whether sex offenders, whose crimes occurred in other states before the Indiana Sex Offender Registry existed, are required to register.

The court on Nov. 8 reversed a trial court in Jermone Michael Burton v. State of Indiana, 45A03-1201-CR-6, finding that a charge against him of failing to register as a sex offender must be dismissed.

Burton had been convicted in 1987 of aggravated criminal sexual assault in Illinois, and the court held that requiring him to register in Indiana, where the sex offender registry didn’t exist until years later, was an ex post facto violation.
 

registry06-15col.jpg Cara Schaefer Wieneke argues before the COA that her client should not be required to register as a sex offender for a Massachusetts conviction prior to creation of the registry. (IL Photo/ Perry Reichanadter)

“My case and another case regarding a defendant from Massachusetts both dealt with people who had moved to Indiana from other states and weren’t required to register at the time of their offenses,” said Crown Point attorney Kristin Mulholland, who represented Burton.

Plainfield attorney Cara Schaefer Wieneke represents the former Massachusetts offender in Thomas Andrews v. State of Indiana, 29A02-1112-MI-1166. Wieneke argued the case earlier this year before the Court of Appeals. While a decision was pending at IL deadline, Wieneke said she’s encouraged by the outcome of the Burton case.

“I thought there were a lot of parallels,” she said. In Andrews’ case, he was convicted of sex crimes in Massachusetts in 1984 and moved to Indiana years later. He voluntarily registered when Hamilton County authorities contacted him in 2006.

Wieneke said the cases are in the line of Wallace v. State, 905 N.E.2d 371 (Ind. 2009), which held that requiring someone to register for a crime prior to the creation of the registry is an ex post facto violation. “They’re all people who, if they had done this in Indiana, this would be a no-brainer,” Wieneke said.

She said whether Burton or Andrews might still be required to register under the federal Sex Offender Registration and Notification Act of 2006 remains an open question.

Meanwhile, there are few developments in a separate case regarding Indiana’s online sex offender database – www.icrimewatch.net/indiana.php.

In August, the 7th Circuit Court of Appeals reversed a ruling of the District Court for the Southern District of Indiana, finding that Indiana denied due process by failing to provide a means to correct listings on the registry that are in error.

The federal court in that case brought by the American Civil Liberties Union, David Schepers, et al., v. Commissioner, Indiana Department of Correction, 11-3834, urged the DOC to establish a review process in which erroneous listings could be corrected.

DOC spokesman Doug Garrison said the department is still in the process of reviewing the decision and has not yet determined what its response will be.•

ADVERTISEMENT

  • relationships
    can a sex affender on parole be in a relationship with a women

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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

ADVERTISEMENT