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Indiana Supreme Court: Sex Offender Residency Restriction Invalid, As Applied to Defendant
Posted in Litigation

In State v. Pollard, the Indiana Supreme Court ruled that the sex offender residency restriction violated the ex post facto prohibition of the Indiana State Constitution as applied to the defendant. 

The residency restriction statute, Indiana Code section 35-42-4-11, went into effect in 2006.  The statute provides that certain persons convicted of sex crimes are “offenders against children.”  An offender who lives within 1,000 feet of school property, a youth center, or a public park is guilty of a Class D felony.  Article I, section 24 of the Indiana Constitution forbids ex post facto laws:  specifically, the State may not impose a punishment that was unavailable at the time of conviction.

Anthony Pollard was convicted of a sex-related offense in 1997.  He owned the residence at issue for roughly 20 years.  The State charged him with a violation of the residency restriction in 2007.  The trial court dismissed the charges against Pollard, and the Court of Appeals affirmed the decision.  Pollard died while the case was pending on transfer.

The Indiana Supreme Court focused its inquiry on whether the statute was “so punitive in effect” as to negate its civil, regulatory purpose.  It determined in part that a “sex offender is subject to constant eviction because . . . there are no guarantees a school or youth program center will not open within 1,000 feet of any given location.”  The Court noted that while the statute served a legitimate public safety purpose, it also advanced the goals of criminal deterrence. 

Most importantly, the Court concluded that the statute is excessive in relation to its safety purpose.  Although it ostensibly applies to “offenders against children,” the statute’s definition includes a whole range of felonies that does not necessary relate to children (e.g. vicarious sexual gratification and promoting prostitution).  Thus, the statute “exceeds its non-punitive purpose” because it bars residence “based on conduct that may have nothing to do with crimes against children.”  Finding that the statute had a significant punitive effect, the Indiana Supreme Court ruled that the statute was void as applied to Pollard and affirmed the judgment of the trial court.

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