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Sex offender registry listings subject of court appeals

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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.”•

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  • not allowed on school property in indiana
    Can anyone please tell me if anyone is appealing the law that certain sex offenders can't be on school property. How is somebody supposed to watch their children's sports games or graduations, this law needs revised such as sex offenders that are on school property must have another non-offender adult with them at all times while on school property. That they must go to the event and then leave directly afterwards. This is only going to hurt the children of the offenders and the father/ son mother/ daughter vice versa relationship. Please email me and let me know if there is a group that is appealing this for reasons other than voting and religion. Jaramieharness@gmail.com Thank you.
  • 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.

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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