Legislature, courts navigate uncertainty about registry laws

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Hoosier lawmakers are revising state law following the confusion created by an Indiana Supreme Court ruling last year, which involves how convicted sex offenders can be removed from a statewide registry if they believe registration wasn't required at the time of their conviction.

A legislative fix is going through the Indiana General Assembly on the heels of Richard P. Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which state justices in April 2009 unanimously held that Indiana's Sex Offender Registration Act imposed retroactive punishment on offenders convicted before the time it was passed in 1994 and later revised, in violation of Indiana Constitution Article I, §24.

But in deciding that issue, justices did not specify how offenders should be removed from the registry if there's a potential or alleged ex post facto claim. Since then the Indiana Department of Correction has been at odds with county judges, prosecutors, and sheriffs about the Wallace decision's scope and how specifically offenders convicted before 1994 should be removed from that list.

That has sparked a handful of lawsuits, raising questions about the state statute gap in a post- Wallace world. The nation's highest court is pondering similar issues in an Indiana case about whether the federal sex offender law is considered retroactive punishment when applied to those who'd committed crimes before the law applied but still later failed to register.

Registry challenges

Sex offender registry issues have been playing out in courts for years, with mixed guidance surfacing from various state and federal courts. For Indiana, the Wallace case put a new spin on how the process works.

In that case, it was argued that the Indiana Sex Offender Registration Act violates the ex post facto prohibitions of both the Indiana and U.S. constitutions because Wallace had committed the crime, been convicted, was sentenced, and served the sentence before any registration or notification was required. Justice Robert D. Rucker authored the opinion, 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 nonpunitive.

But in the months since, the Indiana Department of Correction has been at odds with county courts, prosecutors, and sheriffs offices throughout the state in deciding who should be removed from the statewide registry and how it's supposed to be done. The state agency believes each person must file a court motion before being allowed to be removed, while counties have automatically removed registered offenders who committed offenses prior to 1994 or the later revisions.

For example, in Allen County, Superior Judge Fan Gull said the county's criminal division has been flooded with requests from state, federal, and out-of-state offenders wondering if the Wallace decision applies to them and how they can be removed from the registry. The courts are strictly applying the statute, and if someone's crime happened before the registry was in effect, then their names are taken off the list, she said.

At least four lawsuits - including a class-action complaint in Marion County - have been filed throughout the state on the issue of post-Wallace registration requirements, and those remain pending. The American Civil Liberties Union of Indiana represents plaintiffs in the class-action case. Indianapolis attorney Kathleen Sweeney, who represented and won on Wallace, represents the plaintiffs - who didn't want to be a part of the class action - in other suits.

In Sweeney's eyes, the biggest issue hasn't been the Wallace decision but how it's been applied by the state, and how there's been little guidance from the Indiana Attorney General's Office on this issue.

"I think it clarified the law, and we can't pretend that the registry isn't punishment anymore (for these pre-registry offenders)," Sweeney said. "What's so important to me about Wallace is the court's recognition that the registry is so pervasive that it's punishment. ... One of the most important things is the court said it's like being banished. Because it's punishment, that should make it pretty simple as far as who comes off the registry."

But attorneys on both sides disagree about whether Wallace applies to an estimated 2,000 people convicted for offenses prior to the registry requirements now in place. Sweeney finds it troublesome that the Indiana Attorney General's Office hasn't offered much guidance on this since the April 2009 ruling.

"That's the most frustrating part," she said.

State's legislative fix

The Indiana Attorney General's Office has stepped into the process, and has been working during this legislative session to address the issues Wallace raised. Attorney General Greg Zoeller named this issue as one of his top legislative priorities for 2009-2010, pointing out that Wallace and an accompanying case "muddied the waters" and made it unclear how registry rules apply statewide.

Seeing this void in state law, the AG's Office began working with everyone involved to provide some clarity in the procedures. The state agency also worked with the Indiana Prosecuting Attorney's Council and Indiana Public Defender's Council to craft a legislative fix for this problem, specifically by putting into law the procedure and stance taken by the DOC. The language revises the statute regarding offenders seeking relief from registry requirements by requiring that person to file a petition in court and request a court order for removal. The prosecutor would receive notice and have a chance to respond, and the offender would have to provide information to prove he's no longer eligible for listing on the registry. If the judge orders removal, the DOC would be required to grant it.

"There was a void in the law following Wallace, and this amendment seeks to fill that void by allowing courts to review the propriety of requiring individuals to register as sex offenders, while ensuring that courts are made aware of the relevant facts before rendering decisions," said Bryan Corbin, AG litigation spokesman.

An amendment was attached to Senate Bill 224 on Feb. 22 to address that issue, and the full House voted unanimously in favor of the committee-amended legislation Feb. 25. It was returned to the Senate for consideration of the amendments, and then it was sent to conference committee where it remained at deadline for this story. If lawmakers pass it and the governor OKs it, the new law would take effect July 1.

Court challenges remain alive

Despite the legislative remedies being finalized, the pending lawsuits won't be affected by any new law, according to the AG's office. That means whatever relief procedures in place before would still apply, Corbin said. Those cases remain pending in Marion, Hendricks, Howard, and Elkhart counties, but the state is pushing to have them all dismissed in order to rely solely on the class action complaint in Marion County.

While those state disputes play out, the U.S. Supreme Court considers the same topic as it relates to the federal Sex Offender Registry and Notification Act passed in 2006. On Feb. 25, justices heard arguments in Thomas Carr v. U.S., No. 08-1301, a 7th Circuit case out of the Northern District of Indiana. The case involves a man who moved to Indiana from Alabama and failed to register here as a sex offender, and he contends that at the time of his offense and conviction he wasn't required to register. Fort Wayne attorney Stanley Campbell from Swanson & Campbell was one of the lawyers on the case, though he didn't make arguments.

Justices expressed concerns during arguments about how the law's impact might change depending on the order of offense, conviction, travel between states, and failure to register. Several justices also were concerned with both parties' interpretations of the law, and it wasn't clear how they might rule or how it might impact what's happening in Indiana and other states on sex offender registry rules.

"There still are more questions than answers," said Larry Landis, director of the Indiana Public Defender Council. "It's interesting what happened in Wallace because the U.S. Supreme Court has previously held that requiring registration of someone prior to the offense wasn't ex post facto, where our justices differed and said it violated our own Indiana Constitution. What happens next may change that."


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