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Saturday, January 09, 2010

Ind. Decisions - More on: Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

Updatng this ILB entry from yesterday, Jan. 8th, about the Indiana Supreme Court's April 2009 decision in Wallace v. State, where the Court wrote:

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.
To repeat some excerpts from yesterday's Fort Wayne Journal Gazette story, which was quoted at length in yesterday's ILB entry:
At issue are different interpretations of the state high court’s ruling: Officials with the Indiana Department of Correction – which keeps the state’s official registry – believe the ruling applies only to Richard P. Wallace. Allen County police, prosecutors and local judges have determined the ruling applies to everyone. * * *

The situation opens the door for each county to interpret the ruling differently, throwing off uniformity across the state at a time when the state’s goal, in order to comply with federal laws, was to be more standardized regarding sex offenders, Shimkus said.

“It’s going to cause problems with the state site because its accuracy can’t be guaranteed,” Shimkus said.

Sometime after the court’s ruling on the Wallace case last year, officials with the Allen County Prosecutor’s Office met with officials from the Allen County Sheriff’s Department to decide what the decision actually meant, Shimkus said.

The consensus was that the names of offenders who committed crimes before the creation of the registry had to come off the local list. * * *

Like the meeting in Allen County, officials with the Department of Correction, the Indiana Attorney General’s Office and the Indiana Prosecuting Attorneys Council met after the Wallace decision was passed down.

But the consensus was different from the Allen County interpretation.

“The Supreme Court did not order us to review every individual; it referred to only Wallace,” [Brent Myers, director of registration and victims services for the Indiana Department of Correction] said.

The feeling after the meeting with the attorney general was that offenders who thought they should be off the registry because of the Wallace decision should take it up with the local courts, Myers said. There, an impartial review could be done.

If the DOC receives a court order to remove a name from the list, then that name will be removed, Myers said. So far, the department has received fewer than 70 such orders from local judges.

Allen Superior Court Judge Fran Gull said the criminal division has been inundated with requests to remove sex offenders from the state’s registry, including requests from offenders who were never prosecuted in Allen County.

And Gull has also seen requests from out-of-state offenders or even federal offenders wondering how, or whether, the changes apply to them.

“I don’t know what the status of the law is in other states,” Gull said. “Hell, I don’t know the status of the law in the state of Indiana. It changes all the time.”

As they work through the petitions that fall within local jurisdiction, Gull said they are strictly applying the statute. If the offenders committed their crimes before the registry was in effect, then their names are off the list.

Late yesterday the ILB received a note from Indianapolis attorney Cara Wieneke - here is a quote:
I read with great interest your post today on the mess surrounding Indiana's sex offender registry. I just learned today that I successfully petitioned to have my client removed from the sex offender registry, thanks to the Supreme Court's ruling earlier this week in another case.

The ruling was Hevner. But I thought it was a pretty straightforward issue even before that opinion.

[ILB - In Hevner, decided 1/6/2010, the Supreme Court held "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender."]

My client's case was on all fours with that case, and I'm happy that the trial court agreed. But now I have no clue how to actually get my client off the registry. I assumed that the order needed to be directed to the local sheriff, but after reading your post it looks like I now need to contact the DOC as well.

Exactly. According the the FWJG and earlier press reports, some county sheriffs are removing names on their own from their local registries, some sheriffs are requiring court orders, the DOC is requiring court orders for the state registry. And there are reportedly hundreds if not thousands of names across the state that fit the Wallace criteria. A Nov. 11, 2009 story reported "On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered." A Nov. 18, 2009 story reported "In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list."

Ms. Wieneke also wrote that she had heard that the Indiana ACLU has filed suit "against the State for this whole thing with the State choosing not to remove people until they actually hired a lawyer to help them get off the list."

Sure enough. The ILB contacted Gavin Rose of the ACLU of Indiana, who responded this morning:

The case is Does I-III v. Indiana Department of Correction, et al., Cause No. 49D13-0905-PL-023351 (Marion County Superior Court). The case was filed shortly after Wallace and was stayed by agreement of the parties for a short period while rehearing in Wallace was pending. I am attaching the complaint as well as the order certifying the case as a class action (which was stipulated to by the parties)—these are the only documents of note filed to date, but I would be happy to let you know when summary judgment is sought.
Here are the complaint and order. The complaint defines the class as:
[A]ll persons designated as "sex offenders" under Indiana law and listed on Indiana's sex and violent offender registry and/or required to register as "sex offenders" pursuant to Indiana law, who committed their sex offenses prior to the effective date of the registration requirements.
The legal claim:
Subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.
The complaint asks the court to:
a. Certify this case as a class action with the class as defined above.

b. Declare that subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the sex and violent offender registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.

c. Enjoin defendants from imposing any of the requirements of Indiana's Sex Offender Registration Act, including both registration and listing on the sex and violent offender registry.

d. Award plaintiffs all other proper relief.

Posted by Marcia Oddi on January 9, 2010 03:21 PM
Posted to Ind. Sup.Ct. Decisions