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Wednesday, February 10, 2010

Ind. Decisions - Re "Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray" - What might be done?

Updating this ILB entry from Feb. 4, 2010, in conjunction with this one from Jan. 26, 2010, the Fort Wayne Journal Gazette published this editorial on Feb. 8, 2010:

The Indiana and federal constitutions are clear – no ex post facto law shall ever be adopted. Like it or not, there are no exceptions for especially heinous crimes such as child molesting.

Last year, the Indiana Supreme Court ruled 5-0 that requiring someone to register as a sex offender for a crime committed before the sex offender registry requirement was created is an ex post facto law – one that makes an act committed before the law was adopted punishable as a crime.

The Allen County Sheriff’s Department, rightly, began removing from the local registry the names of people who committed sex crimes before the 1994 law was adopted. But the Indiana Department of Correction, which maintained a statewide registry, did not.

The department was taking advice from the attorney general’s office, which apparently took note of language in the court ruling that seemed to suggest it applied only to the convicted offender who filed the appeal.

Now, however, the attorney general’s office is rightly interpreting the ruling as Allen County has – that it applies to all those whose crimes occurred before 1994. The attorney general still is requiring offenders to seek a court order to be removed from the state registry.

As a result, courts are being inundated with requests to be removed – many filed by defendants pro se, without an attorney.

Few Hoosiers want to see the criminal justice system go out of its way to make life better for convicted sex offenders. However, the constitutional prohibition against ex post facto laws serves to protect citizens from a tyrannical government. Constitutions prohibit such laws because a basic premise of the law is that it establishes rules of behavior citizens must follow. Citizens cannot follow rules that are applied retroactively.

The sex offender registry has received some criticism, been enhanced by the legislature and last year was essentially altered by the court.

Such adjustments are not unusual for a far-reaching, relatively new law. More changes will likely occur.

The law that remains still requires people convicted for sex crimes committed since 1994 to register their addresses with authorities, who make that information available to the public. The law and its underlying purposes remain valid and valuable.

What Might be Done? This situation seems to cry out for clarity and guidance. But who to offer it? The Wallace decision came out on April 30, 2009. No legal advisory opinion appears forthcoming from the Attorney General. And the current IDOC and Sheriffs' registry advice is either inadequate (IDOC,) or incorrect (Sheriffs'):

The Sex & Violent Offender Registry "Road to Reentry" page for the Indiana Department of Corrections offers this information:

On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.
The Indiana Sheriffs' Sex Offender Registry FAQs offers this advice:
Are people who were convicted of a sex offense before Indiana had a registration law required to register?

Indiana's sex offender registration law initially required people convicted of specific sex offenses after June 30, 1994 and those convicted of certain violent offenses after June 30, 1998 to register with local law enforcement authorities in the communities where they intended to live, work, or study. Effective July 1, 2001, these dates were removed from Indiana's sex offender registration law.

Consequently, offenders who may now be required to register because specific registration dates have been removed from the law may previously have been told that they did not need to register.

What might be done?
  1. Make available an "at a glance" chart or flow sheet showing who may be covered by Wallace. If done right, this could eliminate many needless applications to the court.

  2. Make available a standardized petition.

  3. Involve pro bono law students.

  4. Make available standardized forms for simultaneous court notification to both the state and sheriffs' registries.

  5. Correct the information on the IDOC and Sheriffs' sites.

Posted by Marcia Oddi on February 10, 2010 09:03 AM
Posted to Ind. Sup.Ct. Decisions