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Thursday, May 15, 2008

Ind. Decisions - More on "Court limits sex offender residency law"

Updating this ILB entry from yesterday, May 14th, on the Court of Appeals decision in the case of State of Indiana v. Anthony Pollard, Sophia Vorovong of the Lafayette Journal & Courier, who has reported extensively on this issue, writes today:

An Indiana Court of Appeals decision that part of a state law limiting where child molesters can live is unconstitutional could affect some offenders in Tippecanoe County who were forced to move.

In the ruling issued late Tuesday, the three-member panel of judges found that the state cannot require convicted sex offenders to relocate if they owned their homes prior to passage of the law.

The 2006 statute prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center. Violators could be charged with a Class D felony.

"The Court of Appeals found that it was a violation of ex post facto under Indiana's Constitution and the U.S. Constitution because it imposed punishment after the fact," said Lafayette attorney Earl McCoy, whose firm is representing two sex offenders ordered to move last summer.

"That has been our position all the way through. In my opinion, it is punishment whether that person owned a home or rented."

In Tippecanoe County, 25 people had to find new homes last summer when the sheriff's department and prosecutor's office began enforcing the law.

Sheriff's Detective Greg Haltom, who maintains the county's Sex and Violent Offender Registry, said Wednesday that seven people owned their residences before the law took effect. His department could not confirm ownership for three others.

The Court of Appeals ruling dealt with a Blackford County man who had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997.

Anthony W. Pollard was charged in January 2007 with violating the state's sex offender residency law. Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.

State attorneys argued that the man's rights were not violated because he was not charged with owning the home but with continuing to live there after the residency law took effect on July 1, 2006.

The appeals court disagreed.

"That punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute," Judge Paul D. Mathias wrote in the 10-page unanimous ruling. * * *

Though the facts of all three cases are different -- McCoy's client lived in a home owned by his wife prior to their marriage; Montgomery's client lived in a home owned by his wife's family -- the issue prohibiting ex post facto law is the same.

The appeals court decision upheld a Blackford County judge's opinion, holding that the state law was an ex post facto law that punished sex offenders for behavior that was not criminal when it was committed -- in this case, home ownership.

McCoy and Montgomery point to similar cases ruled unconstitutional in other states that the appeals court mentioned in its ruling. One involved an Ohio man who lived rent-free in a home owned by his family; in a Georgia case, a court found that forcing an offender to move was an unconstitutional taking of his property.

In a second story today, Voravong writes:
One convicted sex offender from Tippecanoe County forced to move under a 2006 Indiana law has less than three years until he can be removed from the state's registry.

In the meantime, his attorney is hopeful that this week's Indiana Court of Appeals ruling, which found part of the statute unconstitutional, will help the man's chances of returning home.

"Certainly, the court's rationale should be helpful in our case," said Lafayette attorney Earl McCoy, who is representing the man known only as John B. Doe in court documents.

"One concern on my part is that the court took an 'as applied to' basis. Looking at it on a case-by-case basis, that means several more appeals will have to take place before this law can be clearly understood."

The Court of Appeals decision issued late Tuesday deals with a statute prohibiting convicted sex offenders against children from living within 1,000 feet of a school, public park or youth program center.

The panel of three judges found that the state cannot force offenders to move if they owned their homes prior to the statute's passage.

The unanimous 10-page decision upheld a Blackford County judge's opinion that the law was ex post facto, meaning it punished sex offenders for behavior that was not criminal when it was committed.

That was a key issue in four civil lawsuits -- three in Tippecanoe County, one in White County -- filed by Lafayette-area men in the past year challenging the statute. The offenders' petitions were all shot down partially or entirely by judges in recent months.

This entry yesterday from Jurist points to similar rulings from Georgia and California. See this Nov. 29, 2007 ILB entry on the Georgia ruling, headed "More on 'Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate'".

For a contrary view, see this editorial today from the Richmond Palladium Item, that concludes:

If this ruling were to stand, it could shake the fundamental public safety underpinnings and moral certitude of the sex offender registry: A statute carefully crafted to reflect alarming rates of recidivism among sex offenders, a tradition of underreporting of these kinds of offenses and the special vulnerability of children as victims of those offenses. Estimates are that convicted sex offenders are four times more likely to be repeat offenders than criminal felons convicted of robbery, murder, assault or other serious crimes.

The lower courts' judgment needs to proceed on appeal to the Indiana Supreme Court or the federal courts for added review and some legal clarity. This is an area where the courts second-guess legislative intent at society's substantial peril.

[More] The Indiana Supreme Court heard oral arguments at 9:45 am today in two challenges to the registration requirement of the sex offender law. See the writeup from Monday's ILB entry. Watch the oral argument webcast in Todd Jensen v. State & Richard Wallace v. State here.

Posted by Marcia Oddi on May 15, 2008 12:46 PM
Posted to Ind. App.Ct. Decisions