« Ind. Decisions - 7th Circuit decides one Indiana case today | Main | Courts - "Defense Builds 'Supermax' Cell Replica For Inmate Trial" »

Wednesday, April 16, 2008

Ind. Law - "Should sex offenders' wrongs cost them their civil rights?" [Updated]

The Court of Appeals heard oral arguments March 31st in the case of State of Indiana vs. Anthony Pollard. Here is the case summary.

Today Laura Lane of the Bloomington Herald-Times takes a comprehensive look at this case and the issues posed by sex offender statutes in a story headed "Should sex offenders' wrongs cost them their civil rights?"

When it comes to balancing the rights of people convicted of sex crimes with the obligation to protect children from harm, you won’t find many standing up for the bad guy.

“When you have children on one side and sex offenders on the other, it’s hardly surprising that society is willing to surrender the rights of the sex offender,” said Craig Bradley, an Indiana University School of Law professor who specializes in criminal law and the Constitution.

In 2003, Indiana established a sex offender registry that offers the public a Web site featuring photographs, addresses, employers and conviction information of the more than 8,000 residents convicted of sex-based charges ranging from sexual battery to child molesting.

Since the law’s passage, amendments have made it more restrictive for offenders, adding requirements such as prohibiting a convicted sex offender from living within 1,000 feet of a school, day-care center or youth program.

Another, which goes into effect July 1, requires sex offenders to sign a consent form authorizing authorities to search their computer and monitor their Internet usage.

The trend leaves some wondering if the state is going too far in limiting the rights of citizens who for a period of 10 years to their entire lifetime must publicly register as sex offenders.

They stay under state control long after they have served their time in jail, years after their release from probation.

“Certainly, that argument has been made, but in the case of sex offenders, it generally has not been successful because people are afraid of sex offenders,” Bradley said. “And judges are afraid to strike down laws that protect children.”

But the law has seen some recent challenges. Earlier this month, the Indiana Civil Liberties Union (ICLU) filed a class-action lawsuit against the state’s sheriffs and prosecutors. The lawsuit alleges that the blanket consent for computer searches violates the Fourth Amendment to the U.S. Constitution, which protects citizens from unreasonable searches.

In most criminal situations, police must prove there is probable cause to believe that a person in engaging in illegal activity before a search can be executed. But that standard has been put aside when it comes to sex offenders.

“Since these offenders are no longer under state control, it really seems to be way beyond the scope of what the Fourth Amendment allows,” said Ken Falk, ICLU legal director. He filed the lawsuit in the computer-access case.

“If you have committed a crime in the past and are off probation and free from the legal system, all of your constitutional rights are restored,” Falk said, “except when the Legislature says you surrender your Fourth Amendment protection.”

He called the most recent legislation unique in the United States. “There’s no jurisdiction that ever tried to do this because it is so blatantly unconstitutional,” Falk said.

In March 2007, a Blackford County judge ruled the 1,000-foot rule unconstitutional. Anthony Pollard, convicted in 1997 for a sex offense against a child, was arrested Jan. 26, 2007, and charged with a felony for living within 1,000 feet of a school.

He had owned the property for 20 years, and vacating his residence was not a condition of his sentence. The 1,000-foot rule went into effect after he had served his time and moved back home with his wife.

Judge John Forcum determined that forcing the man to move retroactively increased the punishment for the crime, in violation of the Costitution.

The prosecutor sought a hearing before the appeals court, arguing that the state has a right “to impose regulations that promote order, safety, health, morals and the general welfare of society.”

Two weeks ago, a panel of three Indiana Court of Appeals judges heard oral arguments in the Pollard case. They have not yet issued a ruling.

Some states have upheld such laws; others have struck them down

Monroe County Sheriff Jim Kennedy is paying close attention. There’s a convicted Monroe County sex offender living with his wife within 1,000 feet of a local school, and Kennedy is obligated by law to move him out.

But he is reluctant, concerned about the implications of a law that continues to punish people long after they have served their time.

“My whole premise on this is that the law is vague in some aspects and perhaps overreaching in others, and it is my feeling that it should be interpreted by the judiciary branch of government before the executive branch acts,” he said.

“Taking people and moving them from homes they have owned for decades, with no subsequent behavior problems, I have a bad feeling about that.”

He said the man lives just within 1,000 feet of the school; the law would not apply to him if his home was a few feet farther away.

“The original offense did not involve school children, and he has had absolutely no problems with the law whatsoever since his release,” the sheriff said.

Brown, Greene, Lawrence, Monroe, Morgan and Owen counties have a total of 300 sex offenders listed on the registry.

Among them: a 21-year-old Indiana University student convicted of sexual battery in Kentucky in 2005, a 46-year-old Bedford woman convicted of sexual misconduct with a minor in 1998 and a 68-year-old Martinsville man convicted of child molesting 19 years ago. None of them can leave behind the convictions that taint their pasts, like other criminals can.

Violent offenders, too, are listed on the registry for life. They include a 51-year-old Lyons woman who spent a decade in prison after a 1992 conviction for voluntary manslaughter and a 61-year-old Bedford man convicted of murder in 1991 who was released after 10 years behind bars.

No one questions that sex offenders must be held accountable for their crimes and pay the price the justice system metes out. Trouble arises when the punishment goes on after a person is released from the judicial system.

“It seems scary to me that you can tether them for the rest of their lives,” said Bradley, the law professor.

“It seems to me that at some point, it exceeds the state’s legitimate interest in keeping track of sex offenders and becomes unnecessary additional punishment.

“In general,” he said, “any time the government gets a little too frisky about protecting us, you need to be concerned.” [Posted with permission.]

[Updated] Here is a related story in today's Martinsville Reporter-Times, reported by Keith Rhoades, along with the notation "Bloomington Herald-Times reporter Laura Lane contributed to this report."

Posted by Marcia Oddi on April 16, 2008 03:33 PM
Posted to Indiana Law