Tackling the issue of who determines whether a convicted sex offender is considered a “sexually violent predator,” the Indiana Court of Appeals today issued the latest ruling in a line of cases about the state’s sex offender registry and how convicts’ names are removed.
The state Department of Correction is not authorized to determine whether an offender is a sexually violent predator according to state law, Judge James Kirsch wrote for a unanimous appellate panel in Edwin G. Buss, in his official capacity as Commissioner of the Indiana Department of Correction v. Michael L. Harris, No. 52A02-0911-CV-1088.
Arising out of Miami Circuit Court, the case involves a former inmate at the Miami Correctional Facility who pleaded guilty to felony child molesting in 1999 and was ultimately released on parole in 2002 and 2005, after being reincarcerated for parole violations. Harris learned in 2007 that, because of state statute revisions, he’d be designated as a sexually violent predator and would have to register for life. Harris refused to sign the forms for this twice, and sued on the issue in late 2007.
The case has been ongoing since then, with a bench trial in August 2009 where the trial court granted Harris’s requests for declaratory and injunctive relief and found that he should not be listed on the sex offender registry as a sexually violent predator. That court relied on the Indiana Supreme Court’s decisions last year in Wallace v. State, 905 N.E. 2d 371, 374-77 (Ind. 2009), and Jensen v. State, 905 N.E. 2d 384 (Ind. 2009).
Specifically, the DOC argues that Jensen applies to the instant case and that classifying him in that way doesn’t violate the man’s rights.
“We are left with the question, once an offender’s sentencing hearing has concluded, who makes the determination that an offender’s status is now, pursuant to amendments to the statute, that of a sexually violent predator subject to lifetime registration requirements?” the court asked. “If we were to adopt the State’s construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments … Nothing before us indicates that the legislature intended such as result.”
The trial court didn’t err in its decision, and the appellate panel relied largely on the case of Jones v. State, 885 N.E. 2d 1286 (Ind. 2008), to support its conclusion.