ILNews

Sex offender registry listings subject of court appeals

Back to TopCommentsE-mailPrintBookmark and Share

Indiana’s Sex and Violent Offender Registry is under legal scrutiny with two high-profile lawsuits challenging various aspects of the listings.

The online database – www.icrimewatch.net/indiana.php – has deprived due process by failing to provide a means for erroneous listings to be corrected, the 7th Circuit Court of Appeals ruled Aug. 28. The court reversed a ruling by U.S. District Judge Tanya Walton Pratt in favor of the Indiana Department of Correction.

“We had said all along all we wanted was a very simple procedure that said someone would listen to people who said there are mistakes,” explained American Civil Liberties Union of Indiana Legal Director Ken Falk, who successfully represented the plaintiff and those similarly situated in David Schepers, et al., v. Commissioner, Indiana Department of Correction, 11-3834.

15col-IL_Registry08.jpg From left, bailiff Erin Lantzer and Court of Appeals Judges Paul Mathias, Nancy Vaidik and Michael Barnes listen to oral arguments in Andrews v. State on Sept. 5 at I.U. McKinney School of Law.(IL Photo/ Perry Reichanadter)

Schepers, who is a sex offender, was incorrectly listed as a violent sex offender on the registry. State and federal laws require people convicted of specified sex crimes to register with their state databases that disclose their names and addresses.

The reach of those laws – particularly a 2006 federal statute – was the subject of another challenge heard by the Indiana Court of Appeals on Sept. 5 at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Thomas Andrews argued that he should not be required to be included on the registry. Now an Indiana resident, Andrews was convicted of rape and abuse of a child in Massachusetts in 1984 and completed his sentence in 1989.

In Thomas Andrews v. State of Indiana, 29A02-1112-MI-1166, Andrews argues that because the registry didn’t exist at the time of his conviction, and because the federal Sex Offender Registration and Notification Act didn’t pass until 2006, requiring him to submit to the registry constitutes ex post facto punishment.

“He was never obligated to register as a sex offender,” Andrews’ attorney, Cara Schaefer Wieneke, argued to the Court of Appeals, until he was contacted by the Hamilton County Sheriff’s Office in 2006. He voluntarily registered, she said.

Deputy Attorney General Frances Barrow acknowledged when questioned by Court of Appeals Judge Michael Barnes that Indiana could not compel Andrews to register under state law.

That was news to Wieneke.

“He only registers because he thinks he’s going to be prosecuted if he doesn’t,” Wieneke said after making her case to the Court of Appeals, which took the arguments under advisement.

Key to both sides was the Indiana Supreme Court precedent of Richard Wallace v. State of Indiana, 905 N.E.2d 371 (2009), in which justices ruled unanimously that the requirement that Richard Wallace register for a 1989 conviction violated the state Constitution’s Ex Post Facto Clause.

But Barrow said SORNA would apply in the case of Andrews, whose business sometimes takes him out of state. She asked the Court of Appeals to instruct trial courts that they must deny relief to petitioners who ask to be removed from the registry if the courts find an obligation to register under SORNA.

“We are saying that under Wallace, the state can’t prosecute (Andrews),” Barrow said. “Under SORNA, the federal government can.”

Wieneke argued that the precedent of Wallace is clear, and the federal question is unknown. She told the court that Andrews would not be required to register as an offender under Massachusetts law, either.

andrews Andrews

In the Schepers case, the 7th Circuit said that while the DOC had revised its process for inmates who are about to be listed, no procedure was in place for those already on the registry who either should not be or whose information was erroneous.

The DOC argued that it had turned over registry information processing to the Indiana Sheriffs’ Association, but the court said DOC continued to have ultimate responsibility for the information.

“All the sheriffs as well as the Department of Correction want to make this as error-free as possible,” said DOC spokesman Doug Garrison. “The devil is in the details.”

Garrison said no decision has been made on whether the DOC will appeal.

“This ruling comes as the Indiana Legislature is conducting legislative hearings on potential changes to the Indiana Sex Offender Registry as part of a broader discussion with the DOC, the Indiana Sheriffs’ Association and other stakeholders,” Indiana attorney general spokesman Bryan Corbin said in a statement.

One possibility includes centralized administration of the registry. Data on the registry currently are maintained by the state’s 92 sheriffs.

The 7th Circuit opinion in Schepers urged all parties involved to work together to arrive at procedures that provide due process to someone erroneously listed on the registry. Falk said there is no way to know how many people might be in that class.

“We conclude with the observation that providing additional procedures to correct registry errors may wind up benefiting the state as well as registrants,” 7th Circuit Judge Diane Wood wrote. “Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public.”•

ADVERTISEMENT

  • unjust retrictions
    i was convicted of criminal confinement in 2010.i did not have any sex or anything with any minor. i took 3 pictures of a 17 yr olds covered cleavage.and they were consentual pictures.i served my time in prison and thought after i had served all my time i would be done with this whole mistake and get on with my life.i was released to the state of michigan where my family lived. once i met with my parole officer i was informed i could not see my two teenage sons until i was released from parole on dec 10th 2013.i had already not seen my boys for over two yrs now because even though i had no minor restrictions imposed on me by the courts, the indiana parole board blanketed me with these conditions that keeps me from sein my children at all..i was told by my attorney during the plea bargain stage that the plea they offered me was only good for that day and if we continued with the interviews of the police officers that came to my house that evening than they would take away the plea and it was not a sex crime.. the day i went to court to sign the plea i found out than that he nor the prosecution knew at the time that criminal confinement was indeed a sex offense. my attorney passed away the following year so im not sure if i have grounds to file an appeal.the system is set up for failure and the restrictions are set up to create a violation in order to keep you in the system.the crime i had agreed on in the plea agreement doesnt even exist in michigan but i still have to register for 15 yrs now..if a person does not have a crime against children than they should not have to be subject to the same rules as a violent predator or child molester.being subject to the same rules could endanger my well being just because someone doesnt know the story behind my so called crime..by the way 17 is a legal consenting adult in indiana.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

ADVERTISEMENT