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IN: Great decision out of Indiana

[floridaactioncommittee.org – 7/12/19]

A great decision out of the United States District Court for the Southern District of Indiana was issued earlier this week.

Federal Court Judge Richard L, Young found this result illogical. In his 37 page opinion he writes, “The state has offered no evidence that out-of-state sex offenders or those that leave and return are inherently more dangerous than resident sex offenders, and the court can think of none.”

But what is really great about this decision is that it is ANOTHER federal district court that has found the registry is PUNISHMENT!

Read the full article

 

Join the discussion

  1. AJ

    Awesome! I was just wondering about this case. I hadn’t checked on it in a while but was going to do so–thanks to FAC for saving me some money on PACER. 🙂 (I have checked on Millard, though. Still nothing remarkable to report.)

    This Judgment is fantastic. It has all sorts of goodies to use or re-use in other cases. I particularly like that the Judge cited the *real* recidivism rates and said RCs are no different than “regular offenders,” and that he, like all the other winning decisions, cites the lack of individualized assessment. I got a kick out of the fact that the State’s own testimony was used against it (just like in the AL cases)…seems the bureaucrats cannot keep the lie going anymore.

    I feel this case has great potential to land at SCOTUS someday because this time it will have to go through the 7th (assuming IN appeals), and the 7th seemingly hasn’t seen a RC law it doesn’t like. So unlike in Snyder and Muniz, a ruling from the 7th appealed to SCOTUS may well be contrary to Snyder and Muniz. That’s all a long way off, though.

    Once again, another chunk falls out of the wall of lies that is SOR(N)A.

  2. TS

    Someone please send this to the Tenth CCoA

  3. CR

    Wow! The opinion is an excellent read, a “must read”, if you will. The judge’s analysis is spot on, and the opinion is clear and concise. He used the factors in Smith v Doe to utterly demolish the Indiana SORA with respect to ex post facto punishment. I like how he referred repeatedly to Saenz v Roe in his right to travel analysis. On all points, he reached the same conclusions that we all here have recognized for years.

    This short opinion reveals how excessive Indiana’s registration scheme is, far worse than many states in my opinion. Yet the schemes adopted by all states share at least a few factors in common. This should help challengers in other states craft more effective complaints.

    I expect the state will appeal and the 7th will reverse. And that will be a good thing, as AJ opines above.

    Quotable, from the opinion in the part analyzing SORA’s Rational Connection to a Non-punitive Purpose and Excessiveness: “the state cannot use a sledgehammer to swat a bee.”

    • Tim in WI

      CR,
      @A 7th reversal. I agree for sure. Basis( Registrant v Ramisch)WI
      Whereby ex post application of 100$ yearly registration fee, was not an unlawful tax as imposed upon those former – but no longer- state residents but living elsewhere. The complainant there now lives in florida.

      Moral of the story.
      Don’t go running to Democratic socialists courts asking to cut revenue streams to their brethren. IT WON’T WORK.

      https://www.mystateline.com/news/politics/ap-public-unions-see-only-modest-decline-after-court-ruling/ Assoc Press story
      Have you noted the makeup ( lots of it used) of that court.

      Unfortunately I’m in the 7th domain, thus FTR by volition. The jury of peers is the only way.

    • Lovewillprevail

      I read the opinion and agree with your comments. It appears to me that the judge really brought the hammer down, especially at the end of the opinion listing who was barred from enforcing the law.

      This opinion would never happen in the 5th circuit, the most conservative in the country, the district where all converative gop court cases are filed (TX).

      At least there is more hope for some. Just not for us in TX.

      • CR

        I agree with you about TX and the 5th, Love. We will likely not get relief until SCOTUS adopts a similar view.

        • Tim

          Ahhh TX, death penalty express lane included. Why TX didn’t EL C, IDK. The thing about highly religious judges is they still think man is above machine. Particularly a government operated database machine. Conservative highly religious judges also hold everyone to the highest standards, including lawmakers and administrative agents. It was a conservative judge who tossed out Mr.Kr-ft’s case based upon LOE’s execution of his own warrants misuse.

          The cat is out of the bag concerning electronic domestic surveillance, especially warrantless continuous surveillance. (NC V GRUNDY, GRADY).

  4. Dustin

    Let’s not forget that this only applies as ex post facto to those convicted prior to SORNA.

    What I would like some judge to explain is how the same regimes are “regulatory” to those convicted afterward. Same restrictions, same requirements, and all the stigma that goes with it. The judge even cited how recidivism rates are among the lowest and that nearly all registrant convictions are for status (parole, probation, or registry) offenses as opposed to new crime of any kind.

    Stevens was spot on in his dissent in Smith – “No matter how often the Court may repeat and manipulate multifactor tests . . . it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment.” (Also quoted in this opinion)

    A legislature shouldn’t be allowed to bypass its constitutional restrictions (state or federal) with additional registry laws merely by claiming intent to be a civil, regulatory one. If it’s punitive for one, then it’s punitive for all. It shouldn’t continue once sentences are served, regardless of conviction date.

    • AJ

      @Dustin:
      IMO, this sort of Judgment, coupled with Stevens’ quote, is where some traction could possibly gained in claiming “arbitrary and capricious.” It seems to me the fact that it *is* only one type of offender that’s singled out, one well down the recidivism scale/continuum, plays to our favor anymore.

      I firmly believe more and more judges “get it” and are saying so. I also think they only dare say so due to the 6th’s Snyder and PA’s Muniz Opinions. Unfortunately Smith remains controlling, so it’s still a tricky path forward. Thankfully the States keep piling on “collateral consequences” the likes unseen before, thus showing their hands.

    • AJ

      @Dustin:
      “What I would like some judge to explain is how the same regimes are “regulatory” to those convicted afterward.”
      —–
      The reason it appears to be regulatory for some and punitive for others is kind of glossed over. In essence, there are different “regimes” pre- and post-2006 in IN. Footnote 1 describes the change: “2006 is when Indiana adopted the requirement that an offender must register in Indiana if he was required to register in any other jurisdiction.” The “required to register in any other jurisdiction” changed everything, and thus the pre- and post-2006 differences. IN’s SORA is now tied to one’s regulatory obligation in the other States, and not solely or necessarily to one’s conviction.

      • Dustin

        @ AJ:

        That’s not exactly what I was getting at. What I meant was, how are residence and employment restrictions (for example) punitive for pre-SORNA convictions but regulatory for post-SORNA ones? That it’s ex post facto for pre-SORNA registrants doesn’t mean it’s not punitive for post-SORNA registrants, particularly after the sentence is served.

        Smith v. Doe isn’t (or rather, shouldn’t be) controlling – it was made obsolete by legislatures who used it as a blank check to impose more punishments under the guise of civil regulation. Smith’s ludicrous holding that the registry isn’t punitive merely because the Alaska legislature didn’t intend for it to be was later overturned in another USSC case that held that legislative intent is irrelevant when determining the constitutionality of any given law, though without fanfare. All courts that have found the registry punitive used the exact same analysis as Smith to come to that conclusion.

        • AJ

          @Dustin:
          “how are residence and employment restrictions (for example) punitive for pre-SORNA convictions but regulatory for post-SORNA ones? That it’s ex post facto for pre-SORNA registrants doesn’t mean it’s not punitive for post-SORNA registrants, particularly after the sentence is served.”
          —–
          It’s not that one is found regulatory and one is found punitive, it’s that one is retroactive (ex post facto) punishment versus prospective punishment. Make no mistake, both are punishment.
          There is nothing unconstitutional about SORNA restrictions being punitive if I offend after they’re on the books. In fact, it doesn’t really matter whether they’re regulatory or punitive, since there’s no retrospective (ex post facto) element involved if the law exists before I offend.
          =====

          “another USSC case that held that legislative intent is irrelevant when determining the constitutionality of any given law.”
          —–
          Please cite this SCOTUS case. I’d like to read it. Depending on how relevance was discussed, I can see how a court could say that.
          =====

          I absolutely agree that Smith has been rendered moot. As I’ve recently said on here, I think there may be traction if one were to analyze the current schemes using Smith and showing where things have changed. Living and working freely? Nope. Citizen must go to the e-Courthouse? Nope. I think contrasting now with then could only help with making anything beyond Smith look really bad. (I’m still unconvinced Smith itself will be overturned via the judicial process. If anything, I hang my hat on stronger privacy laws, particularly online.)

  5. Eric

    Step by step, bit by bit, piece by piece, ruling by ruling a glimmer of sanity and hope is happening across the country. Every victory small and large goes into building the case against the abuse, oppression, excessive punishment, stereotyping, and blanket discrimination and unconstitutionality against people on the registry.

    • Anonymous

      When was Indiana’s Sorna established?

    • AJ

      @Eric:
      Agreed. Anecdotally, it seems the pace and amount of “new and improved!” RC laws have slowed. It used to be every time you turned around, you’d read of some crazy, useless, new RC law. Now, it seems those things have slowed greatly and at the same time the Government is losing more and more court cases. To all that I say, “Thank you ACLU-MI! Thank you Does 1-6! Thank you 6th CCoA!”

  6. Gralphr

    I’m still trying to understand what this means. I was convinced in December 2000. When I moved to Indiana they labeled me a tier III. I no longer live in indiana, but if I moved back, would I be able to get things like “svp” removed? When I lived there, the cops who did home visits and the ones at the office told me I’d be a good candidate to petition to get off since I had been out offence free for over 10 years. I figure if I could get the “svp” taken off, I’d stand a better chance with petitioning to fully get off. Am I correct in writing all of this?

    • AJ

      @Gralphr:
      Unless you’re planning to move back to IN, this particular case probably doesn’t much matter since it applies to how migrant IN citizens are treated vs. natives who never left.

      Perhaps the IN SC case mentioned, Wallace v. State (https://www.courtlistener.com/opinion/852361/wallace-v-state/) would be more helpful. Based on your 2000 date, you’re apparently covered by most (if not all) of IN SORA due to the 1995 amendment in which, “the duty to register [was] expanded to ten years after the date the offender was released from prison, placed on parole, or placed on probation, whichever occurred last. Ind.Code § 5-2-12-13 (1995).” How and when the SVP moniker came into play, I’m not sure. It appears from Wallace that it was perhaps 2006. What you can do with or about that classification, I have no idea. Perhaps you could focus on what apparently most bothered the IN SC in Wallace: excessiveness and lack of individualized assessment.

      Regardless of all the above, if your current State classifies you as SVP based on having a like-offense, you’re probably SOL.

      • Gralphr

        When I lived in Indiana i was told i could live wherever i wanted due to my conviction being back in 2000.

  7. pat

    But what about the Federal SORNA? Would someone who moves to Indiana and is not required to register thanks to this decision still have to register because of the Adam Walsh Act?

    • nonya

      If an RO moves to Indiana and attempts to register with the proper authorities and they refuse to register said person then he/she has fulfilled his Federal obligations. if the local authorities won’t register him there is no Federal location for him/her to go to register for SORNA.

  8. Gralphr

    The thing about Indiana is one CAN petition to get off the registry after having been out of prison for 10 years (all tiers can do this), but its set up to potentially cost you 10K just to be told, no, try again next year. (5k for lawyer and another 5k for a psychologist to make a report for you). Pretty much its designed to be extremely hard to get off, since the average person does NOT have 10k to spend of a “maybe”. If one has been out over 10 years offense free, then just take them off!!!!

    • Will Allen

      In these situations, the status quo needs to be that no one ever used an attorney or psychologists. Just petition to the court and say nothing more than something to the effect of “Obviously I’m not dangerous and the Registries do nothing useful. Take me off.” That is more than the Registries and their criminal supporters deserve.

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