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Sunday, January 30, 2011

Ind. Courts - An update on the Indiana statute and the federal sex offender act (SORNA)

The ILB had a very long entry on July 10, 2010 that was headed "Judges agree that the attorney general’s office’s insistence on intervening in so many of these cases continues to cause headaches and confusion for all involved." The heading was a quote from a long story published that day in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Included in the story was:

Last year, the Indiana Supreme Court issued what is now frequently just referred to as “the Wallace ruling,” which allowed sex offenders who committed their crimes before the creation of the registry to petition the courts to be removed from the list. * * *

The Supreme Court eventually agreed with him, finding that “the changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed,” according to the ruling.

Since the ruling, local courts have been processing requests from sex offenders asking to have their names removed because of the dates of their conviction.

In an effort to streamline the process this spring, the legislature required sex offenders to begin making such requests in the counties in which they reside, not where their conviction occurred.

But along with each sex offender’s request, the attorney general’s office has also filed paperwork, asking that the judges construct their orders or instruct the sex offenders that they may be required to register under the federal law. So far, nearly 70 motions have been filed with various county courts, said Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller.

The paperwork is maddening to the judges, who aren’t sure what the purpose of the request is, other than to confuse.
* * *

In 2006, the federal government enacted the Adam Walsh Act, officially known as the Sex Offender Registration and Notification Act, and unofficially by its acronym: SORNA. The law was an attempt to combine all the sex offender registries around the country.

Indiana is one of a handful of states not in compliance with the act, said Brent Myers, the director of registration and victim services with the Indiana Department of Correction.

The state has recently filed an extension request, asking it be allowed until June 2011 to comply with the requirements of the law, Myers said.

According to the story, the additional requirements, not mandated in Indiana law but required by the AG, are to assure future compliance with SORNA.

Indiana has not yet implemented SORNA. Last week the ILB received some information about the potential cost of implementing SORNA (also known as the Adam Walsh ACT - AWA) in Texas. The Texas Legislative Budget Board, an independent review agency for the state's legislature, included its legislative biennium-based report this fiscal impact information, suggesting that SORNA would be very costly to implement in Texas:

Both state and federal laws play a role in establishing sex offender registration and notification requirements. In 2006, the federal government passed the Adam Walsh Act establishing comprehensive sex offender registration and notification requirements that may be costly for states to implement. Early estimates indicate it could cost Texas $14 million a year to comply with the Act. The penalty for non-compliance in fiscal year 2010 would have been $2.2 million. [See p. 56 of report]
The ILB has also received a communication from the Association for the Treatment of Sexual Abusers, indicating that contrary to the statement of the DOC quoted in the July 10, 2010 story, very few states have as yet implemented the federal law:
[T]o date, four states have implemented SORNA: Ohio, Delaware, Florida, and South Dakota; one US Territory has implemented: Guam; and two tribes have implemented: the Confederated Tribes of the Umatilla Indian Reservation and the Confederated Tribes and Bands of the Yakama Nation; for a total of seven jurisdictions having implemented.
And yet another item of interest related to the July 10, 2010 ILB entry and FWJG story: The case referenced in the story involved a Theothis Allison, who filed a letter with Allen County Judge Gull last April, asking to be removed from the sex offender registry because of the Indiana Supreme Court decision in Wallace. From the story:
In a handwritten letter filed in late April, Allison made his request, which Gull granted about 10 days later, according to court documents.

But since then, the Indiana attorney general’s office has filed motions asking to intervene in the case. In the motion, the attorney general has requested that Gull change her order for a number of reasons – [1] taking issue with Allison’s letter, [2] saying Gull lacked jurisdiction in the case and [3] saying that Allison may be required to register under the federal Sex Offender Registration and Notification Act, which Indiana does not yet follow.

Gull has no intention of changing her order. She staunchly refuses to muddy the waters for sex offenders and those who handle the sex offender registry by dealing with the federal question.

Another similar decision by Judge Gull, where the judge straightforwardly implemented the Supreme Court's Wallace decision, was reversed earlier this month in a Jan. 10, 2011 COA decision, State of Ohio Conviction Against Mickey Shawn Gambler. The ILB noted in this entry:
The Allen County Superior Court's action was in response to an April 23, 2010 letter from Gambler. The Court's order to the DOC stated in part: "Pursuant to Indiana Code and Wallace v. State, 905 N.E. 2d, 371 [sic] (Ind. 2009), the Defendant is not required to register as a sex offender or violent offender on the Indiana State Registry as a result of this conviction in Ohio. WHEREFORE, the Sheriff of Allen County and Indiana Department of Correction are ordered to remove Defendant’s name from the Indiana Sex/Violent Offender Registry, based upon conviction in this matter. . ."
The COA ruled that Gambler's letter and Judge Gull's action were "insufficient to remove Gambler from the sex offender registry, and on remand, order the trial court to dismiss the case without prejudice subject to further proceedings in the event Gambler files a sufficient petition."

Finally, in other SORNA related news, the SCOTUS will hear Reynolds v. United States this term. The issue: Does petitioner have standing under the plain language of the Sex Offender Registration and Notification Act to raise claims regarding the Attorney General’s interim rule making the Act retroactively applicable to those who committed their underlying offense prior to its enactment date? For more, see this discussion by Lyle Denniston of SCOTUS Blog, from Jan. 24, 2011.

[MORE]
One more thing. SECTION 2 of SEA 224 (PL 103-2010), took effect March 24, 2010. Wallace was decided April 30, 2009.

Posted by Marcia Oddi on January 30, 2011 02:33 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Courts | Indiana Law