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Sunday, May 18, 2008

Ind. Decisions - Supreme Court hears arguments on retroactive broadening of sex offender-registry requirements

As noted at that end of this ILB entry from May 15th:

The Indiana Supreme Court heard oral arguments at 9:45 am today [Thursday] 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.
Friday, May 16th, Niki Kelly of the Fort Wayne Journal Gazette reported on the arguments. Here are some quotes:
Attorneys for two convicted child molesters argued before the Indiana Supreme Court on Thursday that legislators violated the Indiana Constitution when they retroactively broadened a law regarding sex offender-registry requirements.

Todd Jensen pleaded guilty in 2000 in Allen Superior Court to one count of vicarious sexual gratification and one count of child molesting.

He served his three-year prison term and completed another three years of probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, he was notified by the Allen County Sheriff’s Department that he was now considered a sexually violent predator and would have to register for life. This includes checking in with the department every 90 days and submitting to house visits by authorities several times a year.

Jensen has not been convicted of any new crime, but the legislature decided in 2006 to change the definition of sexually violent predator. A judge is no longer required to have expert evaluations to make that determination. Instead, anyone convicted of a specified list of sexual offenses was automatically shifted to the status of sexually violent predator and the lifetime registry.

“The state says the registry is civil in nature,” attorney Randy Fisher of Fort Wayne said. But he noted that each year the legislature adds or changes requirements of the registry. “There has to be a threshold. It is clearly punitive.”

Fisher represents Jensen, who in 2006 asked for a determination from a local judge on his registration status and was found under the new law to be a sexually violent predator. But the Indiana Court of Appeals ruled in December that the law violated ex post facto prohibitions in the state and federal constitutions.

Specifically, the court found that the new law retroactively changed the elements or facts required to find Jensen a sexually violent predator.

The Indiana Supreme Court vacated that decision and took the case up Thursday along with a similar one out of Marion County.

More from the story:
The case is the latest battle over whether lawmakers have been too aggressive in their desire to monitor convicted sex offenders.

On Tuesday, the Indiana Court of Appeals ruled that the state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency.

The court said Tuesday that the 2006 law – that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center – was an unconstitutional ex post facto law in that it punishes sex offenders for behavior that wasn’t illegal when it was committed.

The crux of Thursday’s argument was whether the state’s sex offender registry is punitive in nature or increases punishment for old crimes.

“The intent isn’t to attach additional punishment,” said J.T. Whitehead, who appeared on behalf of the Attorney General’s Office. “It is to put the rest of us on notice and make it easier for police to track these offenders.”

But Fisher said the registry requires those convicted to take affirmative steps – sign up, provide information, pay fees and carry ID at all times – and if they don’t they can be charged with a criminal violation.

“They are like additional conditions of probation and sentence, and it never ends,” said Kathleen Sweeney, an attorney representing the defendant in the Marion County case.

At one point, Justice Theodore Boehm asked Whitehead whether it is unfairly burdensome to require someone who has had no contact with the criminal justice system for years to suddenly fall under new requirements as a result of a decades-old conviction.

“What about basic fairness,” Boehm asked. “Isn’t there something wrong with that picture?”

Whitehead responded, “How the process feels isn’t important” under previous U.S. Supreme Court rulings.

Posted by Marcia Oddi on May 18, 2008 10:14 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions