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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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