« Ind. Decisions - "Insured's coverage passes to acquirer, court rules" | Main | Environment - Neighbors pack zoning board meeting to support CAFO expansion »

Wednesday, July 25, 2007

Ind. Law - Still more on: Do the changes to the sex offender law mean longtime homeowners must move?

Updating this ILB entry from July 23rd, Sophia Voravong of the Lafayette Journal and Courier reports today on a hearing held yesterday in Tippecanoe Superior Court 1:

The 56-year-old Lafayette man is challenging a state law that took effect July 1, 2006, prohibiting sex offenders convicted of crimes against children from living within 1,000 feet of a school, youth program center or public park.

John Doe -- convicted in White County in 1988 of molesting an 11-year-old -- was forced to move from his home of seven years.

He is using new legislation that took effect July 1, to petition the court to determine whether he still poses a threat to children. He asked if he could move home during the pending litigation.

Judge Don Johnson made no decision during Tuesday's preliminary injunction hearing, instead ordering two independent psychiatrists to evaluate John Doe. * * *

In separate memorandums to the court, attorneys representing Tippecanoe County Sheriff Tracy Brown and prosecutor Pat Harrington argued that it is a matter of the public's safety versus that of an individual. Their respective offices are tasked with enforcing the law requiring offenders against children to move.

He's not being locked up, not being banished from the community," said Brown's attorney, Doug Masson of Lafayette law firm Hoffman, Luhman and Masson.

Judge Johnson also gave John Doe's attorney, Chad Montgomery of the Earl McCoy Law Firm in Lafayette, 10 days to respond to the defense motion.

John Doe said he got his letter from the Tippecanoe County prosecutor's office on May 15, giving him 45 days to find a new home. His residence in the city of Lafayette is near Cornerstone Baptist Church, 2400 Edgelea Drive, which hosts youth events and thus is considered a youth program center. * * *

John Doe said he then moved to Monticello with his brother -- only to be ordered to move again because that residence is within 1,000 feet of an old school that is now used for administrative offices. He must leave by Aug. 14.

Doe is petitioning to "no longer be considered an offender against children under IC 35-42-4-11(d)." The J-C has posted this document online, see pp 1-2. (Caution, this is a 14 MB scanned document that may take some time to load.)

In a motion for preliminary injunction (pp. 5-9) and a motion for permanent injunction (pp. 10-15), Doe argues that IC 35-42-4-11(c) is an unconstitutional ex post facto law, on that imposes a punishment for an act not punishable at the time committed or imposes punishment additional to that prescribed at the time the offense was committed, in that Doe is being punished by being forced by the State to move from his residence, a form of punishment not prescribed at the time the original offense was committed. Does also arges that the law imposes an imperissible taking without due course of law, and that the law is a double jeopardy violation.

The C-J has also made available the 31-page response filed on behalf of the Sheriff of Tippecanoe County. The ILB has received and is posting here a 12-page "Memorandum in support of the response."

Meanwhile, a Louisville court yesterday made a ruling in a similar case. Jason Riley of the Louisville Courier Journal reports:

Sex offenders convicted before last July cannot be charged under a new Kentucky law that would require them to live farther away from playgrounds, schools and day cares, a judge ruled yesterday.

Jefferson District Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged with living too close to schools and a youth treatment center, ruling that the law is unconstitutional because it adds punishment to their initial convictions. * * *

Michael Goodwin, an attorney for one of the men, said Armstrong "has recognized that when an individual is punished by a judge and jury, the legislators can't, many years later, adopt a second punishment for the same person."

Armstrong acknowledged in his ruling that the issue will be decided by a higher court. * * *

Similar rulings have been handed down in Kenton and Madison counties, and the Kenton case is on appeal with the Kentucky Supreme Court.

A different judge in Kenton County ruled, however, that moving sex offenders -- even if they committed their crimes years ago -- is not unconstitutional, The Cincinnati Enquirer reported.

While Armstrong's decision is not binding on other courts, "the logic could be applied by judges statewide," Goodwin said.

Under the old law, offenders had to live at least 1,000 feet -- a fifth of a mile -- from locations including a school building or licensed day-care center. The new law measures the 1,000-foot distance from the property line.

The new law applies to all offenders, even if they are no longer on probation or parole, or under any type of judicial supervision.

Initial violations are misdemeanors punishable by up to 12 months in jail; subsequent violations are felonies for which the maximum sentence is five years in prison.

Posted by Marcia Oddi on July 25, 2007 08:12 AM
Posted to Indiana Law