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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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