COA: Out-of-state sex offender registration requirement does not violate Indiana Constitution

The Court of Appeals of Indiana has upheld a finding that the retroactive application of the state’s sex offender registration requirements does not violate the Indiana Constitution’s ex post facto clause.

Tracey Williams Crowley petitioned the St. Joseph Circuit Court in 2021 to have his name removed from the Indiana Sex and Violent Offender Registry. He had been convicted in Michigan of third-degree criminal sexual conduct, a felony, in 1988.

In 2004, Crowley moved to Indiana. As he was required to do in Michigan, he registered as a sex offender in Indiana.

However, Crowley asserted Indiana’s sex offender registration law, Indiana Code Chapter 11-8-8, was crafted after he was convicted, and the amendment mandating sex offenders from other states register in Indiana was not enacted until 2006, two years after he had settled in the Hoosier State. Consequently, Crowley argued the registration requirement constituted an ex post facto punishment.

But the trial court denied Crowley’s petition for removal from the registry, finding the lifetime registration “serves a regulatory purpose and is non-punitive.”

In Tracey William Crowley v. State of Indiana, 21A-MI-2064, the Court of Appeals agreed and cited precedent from the 7th Circuit Court of Appeals.

Crowley, before the appellate panel, reiterated his argument that applying the 2006-2007 amendments to Indiana’s sex offender registration law to him was unconstitutional. The amendments that required newly arrived out-of-state residents to register upon arrival in Indiana were not in place when he moved to the Hoosier State, so he had “no warning that … he would be required to register,” and his lifetime registration requirement constituted a “quintessential ex post facto punishment.”

The Court of Appeals found that while the Indiana Supreme Court has not addressed the precise scenario presented by Crowley, the 7th Circuit did in Hope v. Comm’r of Ind. Dep’t of Correction, 984 F.3d 532 (7th Cir. 2021), reh’g en banc granted, opinion vacated (Hope I), and Hope v. Comm’r of Ind. Dep’t of Correction, 9 F.4th 513 (7th Cir. 2021) (Hope II).

In Hope, six sex offenders had relocated to Indiana, then filed for declaratory and injunctive relief from having to register on the state’s sex offender registry. They argued the Sex Offender Registry Act violated their rights to travel under the privileges and immunities clause, their rights to equal protection under the 14th Amendment and the prohibition on ex post facto laws in the Constitution.

A divided 7th Circuit panel agreed with the right-to-travel violation, but on rehearing, the en banc 7th Circuit reversed the panel. The majority ruled that because the offenders were required to register in their home states, having to register in Indiana and meet requirements that were enacted after they arrived did not invoke additional punishment.

Against the backdrop of Hope, the state-court appellate panel examined Crowley’s ex post facto claim under the “intent-effects” test. The test found the Legislature’s intent was to create a civil, nonpunitive regulatory scheme, then considered seven factors to ascertain whether the registration requirement was so punitive as to transform it into a criminal penalty.

“Weighing the seven factors as they apply to Crowley and his circumstances, we find that, on balance, application of the 2006-07 other jurisdiction registration requirement to Crowley does not constitute ex post facto punishment,” Judge Robert Altice wrote for the court. He said the panel was sympathetic to Crowley’s plight, but its task was determining whether SORA, as applied, violated the Indiana Constitution.

“Based on the intent-effects test, as well as considering the recent guidance of our federal counterparts in Hope II — who discussed and applied our Supreme Court’s directive in (Tyson v. State, 51 N.E.3d 88 (Ind. 2016), and State v. Zerbe, 50 N.E. 3d 368 (Ind. 2016)) to at least one offender who, like Crowley moved to Indiana before the 2006-07 amendments — we conclude it does not,” Altice wrote.

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