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Wednesday, November 18, 2009

Ind. Decisions - More on "Sex offender registry [may be] reduced by 1/3" [Updated]

The ILB had this lengthy entry on Nov. 11, 2009, about the Indiana Supreme Court decision in Richard P. Wallace v. State, decided last April, 2009. Here are some quotes from the 5-0 opinion (emphasis added by ILB):

In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation. * * *

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.

The Nov. 11th ILB entry quoted from a WANE Fort Wayne story about the implications of the Wallace ruling:
Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

The ILB entry went on to ask: But how is Wallace being implemented statewide? The conclusion - as the opinion is now being implemented, case-by-case affirmative action is necessary - this is from the end of the Nov. 11th ILB entry:
Here is the DOC page referenced in the story. The statement:
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.
In other words, individual affirmative action is required to remove a name from the list, even though, as reported in the WANE story, in "Allen County Sex Offender Registry alone, the [Wallace] case potentially affects about 245 of the 650 people registered."

[More] The Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision. See the FAQ on who is required to register.

All of this is but a long preface to last evening's story on 6 News, Indianapolis, reported by Jack Rinehart. The headline: "Hundreds Of Sex Offenders Could Disappear From Registry: Court Ruling Calls Retroactive Registrations Unconstitutional." The ruling is the Wallace decision from last April. Here is the story:
INDIANAPOLIS -- Hundreds of convicted sex offenders could have their names and pictures removed from county lists after a state law was ruled unconstitutional.

In 1994, the Indiana Legislature created Zachary's Law, or the sex offender registry. Three years later, the Legislature amended the law to require all persons convicted of sex offenses to register.

But this September [ILB - ?], the Indiana Supreme Court reaffirmed its own ruling that the law was unconstitutional because it required those convicted before the law was enacted to register.

On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News' Jack Rinehart reported.

"We're not going to remove anybody. We're taking no enforcement action," said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender Registry. "As far as removing faces, names and addresses, we won't do that without a court order."

Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff's department.

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.

Some neighborhood advocates oppose the idea. * * *

Residents said they'll find a way around the law change.

"I think what you'll see is groups or agencies that will pop up and track these individuals that will try to take themselves off the list," said Bill Callahan of the Brookside Neighborhood Association. "There's nothing to stop people from getting public information about a person and creating their own list."

The ILB is trying to track down the reference to a September opinion and the reference to the state attorney general ...

[More] The "September opinion" referenced in the 6 News story may be an August 20, 2009 action by the Supreme Court to "deny Appellee's peition for rehearing, without opinion."

[Updated at 6:00 PM] Late this afternoon, in answer to a request, the ILB received this clarification from Bryan Corbin of the Indiana Attorney General's office:

To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.

Posted by Marcia Oddi on November 18, 2009 08:29 AM
Posted to Ind. Sup.Ct. Decisions