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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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.