IN: Supreme Court removes Hammond man from sex offender list

INDIANAPOLIS | The Indiana Supreme Court on Thursday ordered a Hammond man removed from the state’s sex offender registry after determining the law requiring him to register for life imposes an unconstitutional retroactive punishment. Full Article

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WOW! Keyword: punishment. Finally, eyes are opening!!!

Great News!

Now if everyone in Indiana who qualifies would get a lawyer to represent them and continue the momentum it could be applied to other states and we could get finally make some actual changes to the fuked up “system”!

It seems to me this decision is HUGE for two reasons. The first is the obvious…the Indiana Supreme Court called registration punishment, as we all know it is. Second is the ex post facto issue of making registration requirements retroactive. Every time a new law(Megan’s Law, Jessica’s Law, Chelsea’s Law) it tends to be enforced retroactively. California has been especially notorious for this. As I’ve said in previous postings, I have two convictions, one legitimate and one manufactured case in which I was forced into a plea. My legitimate case was not a registerable offense at the time of conviction, yet was made registerable a year later. The fact that I was a registrant was used as evidence in my second case.

The Judge in this case clearly made the right decision! The gentleman plead guilty to the charge with a premise of only having to register for 10 years! 10 years is a long time. Then, an over zealous law wa instituted requiring sex offenders to register for life ? It’s highly disturbing for laws to affect those individuals retroactively. Does anyone know the status of Chelsea’s Law or Jessica’s Law? From what I understood, it was put on hold?

Don’t get ahead of yourselves, people. There is not enough information in this story link to really know all the facts. For one, we don’t know if the SOR law in Indiana states that registration is not for purposes of punishment, is only intended as an administrative measure to protect the public — as the California law now states.

Secondly, regarding the retroactivity, that part of the ruling was directly based on the Indiana Constitution’s ban on ex post facto laws. It is very possible that the Indiana Constitution is somewhat more strict about the question than is the US Constitution or the California Constitution (the California Supreme Court has ruled that California’s ex post facto ban in the state constitution is effectively identical to that in the US Constitution). If it is not, then the US Supreme Court certainly would overturn this ruling, as the US Supreme Court already has ruled that retroactivity is fine and dandy if it is not intended as punishment.

Further, I note, this ruling itself is limited, does not reach all sex offenses — it is decidedly based on the minor nature of this defendant’s particular offense and the lifetime burden placed on him as too much burden for such a minor offense, that is, for such a minor concern about danger. Now, I don’t believe that point has specifically been ruled on by the US Supreme Court. But the California Supreme Court already overturned two previous California Supreme Court rulings that were based on that very argument, clearing the way to say that SOR is not punishment in any circumstance (one of those two rulings had banned SOR for misdemeanor lewd conduct — and the Legislature followed up by taking lewd conduct out of the SOR law. A subsequent ruling banned it in at least some cases if not all for misdemeanor indecent exposure — although the Legislature never followed up on that, left indecent exposure in the SOR law, so that is still there today).

It is not clear in this story about the logic behind this court calling that law punishment.

In reading over the actual opinion, the court used the seven factors in the federal court-established Mendoza-Martinez case. The California Supreme Court has already done that in various cases, and has consistently found they weigh in favor of the California law to be only of insignificant burden in relation to the need to protect the public. But the circumstances in California and in Indiana have some differences. And so the Indiana court ruled that application of their law retroactively to this defendant for his offense and in his circumstances would be ex post facto punishment.

You can see the full opinion here:

I note, the court points out up front in its opinion that the Indiana law gives no indication of its intent, that is whether it is intended as punishment or as administrative, and there is no legislative history to show such. As such, the court said it is obligated to operate on the basis that the legislature intended the SOR law to be administrative, and thus, the Mendoza-Martinez review.

Of the seven prongs of the Mendoza-Martinez review, the court found four of them leaned to the application of the SOR to this defendant for this lowest level felony, Class D, as being punishment. But the fact that the majority of them leaned to punishment was not conclusive to the application of the SOR law as being punishment to this defendant. The court said it had to take a broad overview look at it all together, and in doing so, it concluded that the details of the review of those four prongs were significant enough that the application to this defendant of the toughened SOR law was punishment. When the California court has taken its broad overview, it has consistently decided the other way.

For those four prongs where it leaned to the find punishment (I note, they were more definitive about how much punishment those points are than the California court has acknowledged):

1) The court found the law imposes significant affirmative obligations and a severe stigma. It held that the duties of the defendant are significant, and an array of personal information is made public, and the SOR law is intrusive. As such, the court found the effect of the act appeared to be punitive.

2) The court found that the dissemination and widespread availability of offenders’ personal information resembled the historical punishment of “shaming.”

3) The court found scienter because the conviction is a prerequisite for the SOR requirement (in California, the court contended not so, that someone not guilty by reason of insanity still has to register, so SOR applies even without a conviction), and to be convicted of the offense for which this defendant was convicted requires a showing a mes rea, that the defendant committed the offense knowingly or intentionally.

7) The court pointed out that Indiana provides no way out from under SOR for a defendant in this person’s situation — having been convicted of this charge and not having been judged a sexually violent predator — even upon the clearest proof of rehabilitation. (I note, California provides for a Certificate of Rehabilitation, which will allow misdemeanants to stop registering, so low-level California defendants would not have this argument. But felons in California must obtain the pardon — and a pardon would be available in Indiana too, so the Indiana court implicitly is saying that the availability of a pardon is not good enough to establish the SOR requirement as minimal and that the need to protect the public is an overriding necessity. On the contrary, California’s law was intentionally set up on the basis that a pardon IS good enough.) The court also specifically states that “… IN RELATION TO THIS DEFENDANT (Upper case added), we find that the retroactive imposition of a lIfetime registration requirement appears excessive in relation to the purpose of protecting the public from repeat sexual crime offenders.”

The court finally ruled that:

“…to apply the lifetime SOR to this defendant violates the Ex Post Facto Clause of the Indiana Constitution.”

The registry is draconian; undue exploitation and ineffective. Most of the 700,000+ could be reclassified or removed. We don’t have 700,000 crazed people running about. This is a political ataboy if anything at all. It should have been designed so that ex-offenders can work their way off it. Nobody wants an ex-offender with nothing to work toward in terms of becoming a responsible citizen again. They missed the point on this idea. Psychologists should have written this bill not lawyers.

Another interesting case out of Indiana having to do with Ex Post Facto punishment.

This case involves a registrant who was prosecuted under a statute that came into effect after his conviction and release. The analysis centers on whether or not is punitive (Mendoza-Martinez), as well as the definition of what is a volunteer.

Regarding punishment, the Court finds that only 1 of the 7 Mendoza-Martinez factors advances a non-punitive interest, the other 6 point to the statute being punitive.

While this is Indiana, I would think the concept would apply universally. For things like the parks bans, entering school property for legitimate purposes, etc.