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Seventh Circuit: Indiana’s Sex Offender Registration Act’s ‘Other Jurisdiction Requirement’ Unconstitutional Violation of Right to Travel

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit upheld U.S. District Court for the Southern District of Indiana’s opinion that found a provision of Indiana’s Sex Offender Registration Act (“SORA”) requiring registration of Plaintiffs who relocated to Indiana after SORA’s enactment violated their right to travel because the provision wouldn’t have required them to register if they had committed their offenses while residents of Indiana.

Plaintiffs Brian Hope, Gary Snider, Joseph Standish, Patrick Rice, Adam Bash, and Scott Rush (collectively, “Plaintiffs”) filed suit against the Commissioner of the Indiana Department of Correction (“DOC”) and other officials (collectively, “Defendants”) challenging the constitutionality of SORA as applied to them. In the 1990s, Snider, Standish, Bash, Rice, and Rush were convicted of various sexual offenses in other states that were committed in the 1980s and early 1990s. After completing their sentences and probation, each relocated to Indiana (Snider in 2003, Standish in 2013, Bash in 2000, Rice and Rush in 2017) where they were required to register. (Snider was told he didn’t have to register any longer in 2010 pursuant to Wallace v. State, 905 N.E.2d 371 (Ind. 2009), but then in 2016, the DOC told him he had to register again.) Under SORA, they are deemed sexually violent predators (“SVP”) and required to register every 90 days for the rest of their lives.

Hope pleaded guilty to child molestation in Indiana in 1996 for a crime that occurred in 1993. He completed probation in 2000 and moved to Texas. In 2013, Hope returned to Indiana and was required to register for life as an “offender against children.”

Hope and Snider had to change residences in Indiana because their residences were within 1,000 feet of a park, daycare center, or other facility. Snider, Standish, Bash, and Rush could not attend their children’s school functions or parent-teacher meetings because SORA prohibits them from entering school grounds.

The Defendants asserted that each Plaintiff was required to register under SORA’s “substantial equivalency requirement” and the “other jurisdiction requirement.” The district court ruled that SORA violated several of Plaintiffs’ rights, including the right to travel, and that SORA’s requirements, as applied, could not stand. Defendants appealed. On appeal, the Defendants dropped their “substantial equivalency” grounds, relying only on the “other jurisdiction requirement.”

The Seventh Circuit observed that SORA was enacted in 1994. 1994 P.L. 11 § 7. It has been amended several times to remain in compliance with the federal Sex Offender Registration and Notification Act and, purportedly, to target those sex offenders most likely to recidivate. Each amendment expanded the number of offenses for which registration was required and/or expanded the duties required by registration. For example, the 1996 amendment required registration of offenders convicted in other states of offenses that would require registration if the offense had been committed in Indiana (“substantial equivalency requirement”). 1996 P.L. 32 § 2. This provision was made retroactive in 2001. 2001 P.L. 238 § 4. A 2006 amendment applied SORA’s requirements to any person who was required to register as a sex offender in any jurisdiction (“other jurisdiction requirement”). 2006 P.L. 140 § 5(b)(1).

Those amendments also made the burdens of registration more onerous: a registrant must report to the local sheriff in person at least once per year (unless the registrant was convicted of an offense that deemed him/her an SVP which requires a personal appearance every 90 days); the registrant must also personally appear before the sheriff of any county in which he or she works or attends school; homeless persons must personally appear every seven days; registrants at each appearance are photographed and must provide their physical descriptive information, birthdate, Social Security number, principal address, phone number, description and plate number of every vehicle they might drive, addresses of employers and schools they attend, email addresses and social media user names, and other information. If any of this information changes, the registrant must personally appear before a sheriff within 72 hours to report it. Registration requires several hours and often takes an entire day.

As mentioned above, there are also restrictions on where registrants may live, and registrants are prohibited from school premises. Registrants deemed to be SVPs or deemed “offenders against children” must register for life.

Due to these extensive burdens, the Indiana Supreme Court concluded that SORA “imposes significant affirmative obligations and a severe stigma on every person to whom it applies…. [And the] duties imposed are significant and intrusive.” Wallace. SORA has the effect of adding punishment beyond that which could have been imposed at the time of the offense; therefore, imposing the requirements on anyone whose offenses predated SORA’s enactment violates the ex post facto clause of the Indiana Constitution. Id.

Per Wallace, any Indiana resident whose offense occurred prior to SORA is not required to register – provided that person remained a resident of Indiana. But under the “other jurisdiction requirement,” any person relocating to Indiana must register under SORA if their previous state required that person to register. This “other jurisdiction requirement” applies even if that person would not be required to register if he or she committed the offense in Indiana and hadn’t left. That’s the reason why the provision violates the Plaintiffs’ right to travel, according to the Court.

The right to travel encompasses three related components: (1) the right to enter and leave a state, (2) the right of a citizen of one state to be treated as a welcome visitor in another state and not be treated as an unfriendly alien, and (3) the right to settle and become a permanent resident of a state and to be treated equally with other citizens of that state. Saenz v. Roe, 526 U.S. 489 (1999).

While the third component of the right to travel is not specifically enumerated in the federal Constitution, Saenz placed it squarely within the Privileges or Immunities Clause of the Fourteenth Amendment. Id. The instant case concerns the third component because Indiana created two classes of citizens: (A) residents whose qualifying offenses predated SORA’s other jurisdiction requirement and who never left Indiana, and (B) residents whose qualifying offenses predated SORA’s other jurisdiction requirement but who moved to Indiana from another state that required them to register. The former class of Indiana residents are not required to register while the latter class of Indiana residents must do so register.

The Saenz decision dealt with a California law that limited welfare benefits to newly arrived citizens for the first 12 months to no more than the amount they could have collected in their previous state. The U.S. Supreme Court concluded that “[n]either the duration of respondents’ California residence, nor the identity of their prior states of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the state’s interest in making an equitable allocation of the funds to be distributed among its needy citizens.” Saenz. The U.S. Supreme Court recognized that states have a valid interest in preserving the fiscal integrity of their programs, but states “may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, 394 U.S. 618 (1969).

In the instant case, Indiana has a strong interest in protecting its residents from potential predations of sex offenders, the Court noted. But the Court explained that singling out only newer citizens with a history of sex offenses to the exclusion of more longstanding citizens with the same or similar criminal history doesn’t further the Defendants’ claimed interest. Doe v. Penn. Bd. of Prob. & Parole, 513 F.3d 95 (3d Cir. 2008). The distinction is irrational and violates equal protection. Id.

The Court concluded Indiana’s scheme under SORA places burdens on newer citizens and deprives them of the same rights and privileges of more longstanding citizens in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Consequently, SORA violates the Plaintiffs’ and other similarly situated Indiana residents’ right to travel.

Accordingly, the Court affirmed the judgment of the district court. See: Hope v. Commissioner of Indiana Department of Correction, 984 F.3d 532 (7th Cir. 2021).

Loaded on MARCH 15, 2021 by Douglas Ankney published in Criminal Legal News April, 2021, page 14


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So now what? Will they apply the law to residents who lived in the state already to make it equal to those who moved into the state after the law went into effect?

Last edited 1 month ago by Ditto

Next is IML. If that isn’t a violation of the right to travel, I don’t understand the constitution.

IML isn’t really a violation of the right to travel because IML does not take away your right to travel. IML is just requiring you to give notice that you are going to travel. IML gives your travel intentions to the destination country. It’s those destinations countries that are refusing entry into their country as they have a right to do based on that country’s laws.

That’s the Feds’ explanation. But they have also given awards to countries that deny entry to registrants.

It’s pretty oxymoronic, isn’t it? The feds figure registrants are so dangerous and such a burden to track, yet must be prevented from leaving. Classic example of US bureaucracy.

People often say sex offenders should loose their citizenship and be sent away to another country or to a deserted island. Sounds great to me, when can I leave?

I think Jack was alluding that the IML identifies it represents the whole USA, yet all 50 states have differences in their registration laws, specifically age of consent. Ca is age 18, but next door in Nevade it’s 17 years of age.

Since the IML states you’re a US citizen, then which law are you abiding by? Shouldn’t there be a singular registration law b/c the IML is a federal program? The lowest age of consent in the US is age 16. Shouldn’t that be the lowest threshold for all with the IML?

@New Person:
IML operates as a federal law using federal age criteria, i.e. 18. So the ages of consent among the various States is moot. Dual sovereignty allows the Feds to cast the wider net of 18 versus what a State may use. It also means one could escape State-level charges for something yet still face Federal charges.

There is a federal case where it cited the federal age of consent was 16.

The IML represents the federal government of 50 individual states. The IML is pulling the registry from 50 individual states. A person did not violate a federal crime, a person violated a state crime (military personnel excluded). The IML isn’t using the criteria of 18 years of age if they’re pulling from individual states.

Thus the federal government is wrong, especially when pulling from non-SORNA states that do have varying ages of consent by relations.

The IML wants uniformity from varying rules. Therein lies the folly. The IML represents the United States, but depending on which state your registry is in differs in rules. This violates equal protection act.

Lake ~ I have to disagree to a certain extent. The right to travel any time you would like to is taken away. If I see a good deal for a flight to Europe today, I can’t take it because I have to give a 21 day notice, compared to anyone else who can travel on a dime if they please. Big difference.

As I’ve said before. You should have a right to show up at an airport, look at the outgoing flights remaining for the day, pick one and get on that flight right then and there unless you need a visa or something. It doesn’t matter if it’s a last minute deal or not or if it’s five times the price of someone booking a month in advance. You have the right to go.

While traveling overseas suddenly due to a cheap fare isn’t a listed exception to 21 days notice, no one has said it can’t be attempted or accepted as a reason. It’s up to the registry office to accept or decline that as a reason. If IL makes one wait until 3 days prior to notify (an example), that’s the same as a cheap fare sale short notice.

@Janice Bellucci:
Any thoughts on whether one could make a solid argument that by being based on State laws, the implementation of IML violates Due Process (since the Equal Protection Clause doesn’t apply to the Feds)? Hinging enforcement of a federal law based on a State’s exercising of its 10th Amendment rights (i.e. SORNA compliance or rejection) just doesn’t seem kosher. That the Feds manage to function just fine with IL’s 3-day rule sure seems to crumble the foundation of IML’s 21-day requirement.

In theory, one could de-register from a 21-day State, register in a 3-day (or non-reporting) State, book a last-minute trip, and not be at risk of IML enforcement. Talk about “bass-ackwards”!

As SCOTUS has many times said, no right is absolute. So all the Government has to do is show they’re using the least restrictive means to achieve a compelling governmental interest. Is the marking in a passport such? Is requiring 21 days such? I would say “no” to both but I’m not a judge/justice. I suspect the 21-day rule could get slapped down fairly easily, especially given there are apparently some exceptions granted for emergency purposes. The reason I think the 21-day rule could be overcome is based on what a wise director of personnel once told me: there’s no such thing as a policy exception, only policy change. Once the Feds prove they can operate with fewer than 21 days for this or that reason, they’ve given away all ground on the necessity of 21 days.

I don’t agree, Lake. IML is absolutely taking away our right to travel by stacking the deck completely against our ability to travel and not just a little bit. When I can no longer travel anywhere in Asia, with the current but probably temporary exception of Hong Kong or to Europe after it implements ETIAS, it is entirely because of U.S. notifications to those countries of our status and only the most cynical, dishonest interpretation would find IML to not be a near-total ban on international travel. So yes, they really have taken away our right to travel. That there are some exceptions based entirely upon visited country and criminal records does not mean that our rights have not been infringed upon. Let’s not fall for the crafty Kool-Aid.

@Notorious D.I.K.:
Unless IML travelers are the only of its citizens the US tells other countries about, I don’t see your position holding much water.

AJ, what position? My position isn’t that there is a clear legal claim that we are being banned from international travel, although I certainly think that an argument can be made given a skilled legal professional with the guts and vision to do so, it is that we have been effectively banned from travel through a cynical end-run around the Constitution. My position is that we have been effectively banned and for me to regard it in any other way, given that I have lost my profession because I can no longer go to Asia, and will likely be banned from future travel to Europe, and am already prohibited from traveling to the entirety of Central and South America, would be foolish and drunk on Delusion-flavored Kool-Aid. Are you saying that I’m wrong to regard it this way?

Great news! But it always confuses me how something that isn’t supposed to be punishment, is punishment, but only for some people, sometimes.

You should check the current status of this litigation. The last I heard, Indiana is appealing this decision to a full panel of the 7th Circuit. I believe that appeal is pending at this time.

This is the appeal decision.

Good news but super limited. All the state will have to do is make the law equally stringent to all registrants and the 5 year law suit dance will start over

“… the effect of adding punishment beyond that which could have been imposed at the time of the offense.”
Interesting. Does Cali Constitution have a similar clause? I wonder how this plays out with a federal SORNA? 🤔

I think that is the point of the ex post facto clause (Article I, Section 9, Clause 3). Punishment cannot be applied retroactively. The rub is that for the most part registration is not deemed to be punishment. The same clause includes bills of attainder prohibit the executive or legislative branches from applying punishment that is not ordered by a court of law. However, few precedents exist because there has been little litigation regarding its application to criminal law in the last 200 years. As Janice has mentioned, we need to tread carefully. A bad precedent will be very difficult to later overcome, as has been the 2003 Smith v. Doe decision.

Cowardly courts don’t like to break new legal ground and will most often take a pass on the punishment question and fall back on the civil regulatory argument. As in this case, a court may nibble away at a law, but will not condemn the entire registry as punishment.


I think you are more likely to get results by chipping away starting with the proposed federal SORNA changes and retroactive application on an as applied basis for people that are no longer registered but who will be brought back into the registration scheme after many years of not being on it using something like Nichols v. Coolidge, 274 
U.S. 531 (1927) where the Supreme Court struck down a tax that applied to a transaction that occurred 12 years before the statute was enacted, observing that Congress may legislate 
“to prevent evasion and give practical effect to the exercise of admitted power, but the right is limited by the necessity.” here the argument being that being offense free for a long period of time off the registration scheme negates any rational necessity to put that person back on.

I also believe that Calder v. Bull, which approved retroactive application of civil regulation might have a better chance of being overturned to some degree (likely not on a sex offender case but might help with a registry case) as opposed to Smith v. Doe. That said some regulations that go beyond Smith v. Doe may still have an opportunity to be overturned eventually.

As a rule, courts prefer to nibble just enough to solve the case at hand (see: Masterpiece Cakeshop, Ltd. v. CO Civil Rights Commission). They do that to avoid unintended, and unseen, consequences in the future. It’s also one reason as-applied challenges are typically a better route than facial challenges. It’s much easier to show harm to one or a few individuals than it is to prove a law is universally bad and harmful.


This is the appellate decision from January. In March, Indiana requested a decision by a full panel of the 7th Circuit. This decision is by a 3 member panel but a full panel can overturn a 3 member panel decision. They have a better shot at being granted an appeal by a full panel than requesting certiori to the Supreme Court.


This case is on hold because Indiana requested an en banc (full panel) decision from the 7th Circuit under rule 35 of the federal rules of appellate procedure. I don’t have access to their pleadings but believe that they are asserting that this is an issue of exceptional importance. Usually, they grant an en banc hearing in about 1% of the cases. Because this appeal is by the state and the issue involved, they have a fair shot at an en banc hearing.
If this decision is not overturned they can still appeal to the U.S. Supreme Court which will keep this case on hold longer. The ACLU of Indiana did a good job on this case so it will be hard to overturn.

I hope it does get to the Supreme Court. They’ve been dodging it forever, but with differing opinions among the circuits on the regulatory-or-punitive question, sooner or later they’re going to have to address it.

THe USSC overturning itself is pretty rare, but it has happened before. I could be wrong, but there seems to be an unwritten rule at the USSC that it won’t overturn itself on any issue while any justice who wrote or joined the former opinion is still sitting. A lot of people keep pointing to CJ Roberts as a because since he represented Alaska in Smith v. Doe, but his appointment as CJ is strictly administrative (budget oversight, hearing and meeting chair, and so on). His legal opinions – including when to grant certiorari – have no more or less weight than any of the other justices.

Justice Thomas is pretty miffed at his colleagues for running from cases they should be considering. They need to face the cases.

CJ Roberts should hear the data on his case in the high court. Crow is hard to eat in front of others without humility.

I would argue he should recuse himself from such a case, but I doubt that’ll happen. For now I just hope Thomas can persuade three others to to take a case on the civil/punitive question. It only takes four justices to grant certiorari.

SCOTUS could easily thread the needle between Smith’s regulatory holding and the current, more punitive situations. As we all know, the laws that are out there today are light years beyond the situation in Smith. I don’t know that Smith will ever come down, not unless stronger privacy laws are enacted in this country akin to the “right to be forgotten” in the EU. I don’t foresee that happening because we’re a nosey, vindictive nation.

Unless the en banc happens and reverses the ruling, I doubt SCOTUS steps in. The District Court properly applied Saenz, so the only possible way SCOTUS would hear it would be to overturn it. I suspect a cert. petition gets swatted away if the case remains as ruled. With no Circuit split, why would SCOTUS take a case just to affirm a twice-affirmed ruling at the CCoA level? Furthermore, even if SCOTUS did take the case, whichever way it’s presented, the Court will only decide the question at hand, not some broader SORA or Smith question, because, again, courts like to solve cases as narrowly and vaguely as possible to prevent harm in future cases.

Would love your thoughts, please comment.x