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Indiana Supreme Court: Sex Offender Registry Undergoes Ex Post Facto Scrutiny
Posted in Litigation

On Thursday, April 30, the Indiana Supreme Court handed down two opinions addressing the constitutionality, under the ex post facto clause of the Indiana Constitution (article I, section 24), of Indiana’s Sex Offender Registration Act.  The Act requires those convicted of sex and certain other offenses to register with law enforcement agencies and disclose personal information. In Wallace v. State, the Court held that the Act violated the prohibition on ex post facto laws when applied to those who were convicted and served out their sentences before the Act was passed.  In this case, Wallace had served out his sentence before the Act was passed, then failed to register under the Act after it was passed.  He was tried and found guilty of failing to register as a sex offender, a Class D felony. Addressing the constitutionality of Wallace’s conviction, the Court applied the “intent-effects” test.  Under the “intent-effects” test, if the legislature’s intent was non-punitive regulation, “then the court must further examine whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what was intended as a civil regulatory scheme into a criminal penalty.”  The Court noted that, in Indiana, it “is difficult to determine legislative intent since there is no available legislative history and the Act does not contain a purpose statement.”  Thus, turning to the “effects” determination, the Court analyzed the Act under the seven factors articulated by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). In Wallace, the Indiana Supreme Court found only one factor – advancing a non-punitive interest – to point in favor of treating Indiana’s Sex Offender Registration Act as non-punitive.  The Court unanimously held 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.” In a companion case, Jensen v. State, the defendant had been convicted and served his sentence after the Sex Offender Registration Act was enacted, but before it required a “sexually violent predator” to register for life.  Thus, after serving his sentence and completing probation, the registration requirement was extended from 10 years to cover his entire lifetime.  In a 3-2 ruling, the Indiana Supreme Court found that “the effects of the Act apply to Jensen much different than they applied to appellant Wallace.”  Rather, the Court stated, “[t]he ‘broad and sweeping’ disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000.  Nothing in that regard was changed by the 2006 amendments.”  The Court held that, whereas in Wallace only one of the seven factors weighed toward treating the Act as non-punitive, in Jensen four of the factors leaned that way.  In particular, the last factor (i.e., “whether [the Act] appears excessive in relation to the alternative purpose assigned”), which the Court afforded “considerable weight in deciding whether the [Act is] punitive-in-fact,” leaned in favor of treating the Act as non-punitive when applied to Jensen, but leaned toward punitive when applied to Wallace. Justice Sullivan concurred in result, and wrote separately to explain that he did not believe Jensen’s ex post facto claims were ripe for adjudication.  Justice Sullivan explained that (1) Jensen will not be subject to an arguably ex post facto requirement until after the 10-year period in place when he was convicted had run and it was possible the law would be changed before then, and (2) Jensen would be able to petition the court at the end of the 10-year period to no longer be classified as a sexually violent predator, which, if successful, would remove the lifetime registration requirement. Justices Boehm and Dickson dissented.  Justice Boehm’s dissenting opinion acknowledged that there “are several problems in applying the 2006 registration requirements to 1998 offenders.”  He wrote:  “It is beyond dispute that a law extending the period of incarceration for a crime cannot apply to persons whose offense predates the effective date of that legislation.  It seems to me that if the registration requirement is punitive, extending its period is no less additional punishment than extending a period of incarceration, and equally violates the constitutional ban on ex post facto legislation.”  Further, he wrote, individual determination of Jensen’s continued risk to the public should be made.  “It may be true in this day of internet searches that a person is permanently scarred by the shaming of reputation resulting from the sanction in place at the time of Jensen’s crime.  But the newly enacted requirement of additional lifetime publication of Jensen’s picture captioned ‘Sex Predator’ in flashing red letters surely is of some severe consequence, and requires some determination that it remains appropriate for the individual offender a decade after the crime.”

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