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Justices issue sex-offender registration rulings

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Convicted sex offenders who've already served their sentences can't be forced to register for life by a newly enacted statute, but the Indiana Supreme Court is split on whether that lifetime requirement should be imposed on offenders who are still registering when the law is changed.

The state's highest court ruled on two companion cases today analyzing the Indiana Sex Offender Registration Act, a combination of statutes requiring defendants convicted of sex and certain other offenses to register with local law enforcement and disclose personal information. The cases are Richard P. Wallace v. State of Indiana, No. 49S02-0803-CR-138, and Todd Jensen v. State of Indiana, No. 02S04-0803-CR-137. Justices heard combined arguments May 15, 2008.

Wallace pleaded guilty to a sex offense against a child in 1989, and after serving his five-year sentence and probation he learned from law enforcement that new laws passed in 1994 and 2001 required him to register for life as a sex offender. He didn't register and was later convicted by a jury in 2007 for felony failure to register. The Court of Appeals rejected his arguments last year and affirmed the trial court.

In Jensen, the 1999 crimes resulted in the Allen County man being charged with child molesting counts and vicarious sexual gratification. He pleaded guilty in 2000 and received a sentence of three years in prison and three years probation, as well as having to register for 10 years after his time served.

Both argued the Indiana Sex Offender Registration Act violates the ex post facto prohibitions of both the Indiana and U.S. Constitutions because they'd committed the crime, been convicted, received sentences, and served them before any registration or notification was required. In Wallace's case, he'd served his entire sentence; Jensen had completed his prison time and probation, but was still continuing with his previously agreed to 10-year registration requirement.

Justice Robert D. Rucker authored both opinions, relying on seven factors laid out by the Supreme Court of the United States in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), about whether the statute is punitive or non-punitive.

In the unanimous, 18-page Wallace ruling, Justice Rucker wrote that the act in question "imposes burdens that have the effect of adding punishment beyond that which would have been imposed when his crime was committed." That decision reversed the judgment by Marion Superior Judge Lisa Borges.

But in the 13-page Jensen ruling, Justice Rucker and Chief Justice Randall T. Shepard concurred in finding that Allen Superior Judge Fran Gull was correct in her decision that Jensen be classified as a sexually violent predator and be required to register for life. Justice Frank Sullivan concurred in result with a separate opinion, while Justices Theodore Boehm and Brent Dickson dissented in their own opinion.

"We hold today in Wallace v. State that the registration requirement is punitive and therefore cannot constitutionally be applied to a person whose crime occurred before the statute was enacted," Justice Boehm wrote in Jensen. "The majority holds that the same conclusion does not apply to a person whose crime occurred at a time when only a ten-year registration was required. It is beyond dispute that a law extending the period of incarceration for a crime cannot apply to persons whose offense predates the effective date of that legislation .... It seems to me that if the registration requirement is punitive, extending its period is no less additional punishment than extending a period of incarceration, and equally violates the constitutional ban on ex post facto legislation."

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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