ILNews

Judge: Sex offender law goes too far

Michael W. Hoskins
January 1, 2008
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Those registered sex offenders who've served their time and are no longer on probation or under court supervision cannot be required to give blanket consent to authorities for home and computer searches, the U.S. District Court Southern District of Indiana's chief judge ruled late afternoon on June 24.

U.S. District Judge David F. Hamilton in Indianapolis struck down a major portion of a new law set to take effect July 1, which would have required all convicted sex offenders to agree to have their personal computers searched at any time and allow Internet access to be monitored. That applied to all those on the statewide sex-offender registry, including those no longer serving sentences, on probation, or under any type of court supervision. Not complying would be a felony.

But the revised Indiana Code Section 11-8-8-8(b) goes too far, Judge Hamilton ruled in his 51-page opinion in John Doe and Steve Morris, et al. v. Marion County Prosecutor, et al., No. 1:08-CV-0436-DFH-TAB, a class-action suit filed in April by the American Civil Liberties Union of Indiana against all county prosecutors and sheriffs. Judge Hamilton heard arguments May 30.

The judge stopped short of striking down the entire statute, only declaring unconstitutional the portion that would have applied to convicted sex offenders no longer on probation, on parole, or under court supervision.

"The new law forces an unconstitutional choice upon these plaintiffs. They must choose now between committing a new crime by refusing to consent and giving up their Fourth Amendment rights to privacy and security in their homes, their 'papers,' and their effects," he wrote. "The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision."

Judge Hamilton poked holes in the state's legal arguments, noting that there are no limits on the scopes of allowable searches under this law and citing City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000), which involved random vehicle checkpoints designed to catch drug users and traffickers. The U.S. Supreme Court held that was unconstitutional and Judge Hamilton used that case to note that "a general interest in crime control" doesn't justify this consent law for sex offenders because it also doesn't justify abandoning the Fourth Amendment's requirement of individualized suspicion.

He also pointed out that the parties have not cited and he wasn't able to find any American law that "attempts to authorize such a broad intrusion on personal privacy and security, without a warrant, probable cause, or even reasonable suspicion, for persons" not under the court's control.

The judge didn't rule on whether this law can be considered constitutional to other convicted sex offenders outside this plaintiff class, noting that is left "for another day."

The Indiana Attorney General's office is reviewing whether it will appeal to the 7th Circuit Court of Appeals, according to spokeswoman Staci Schneider.
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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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