Tuesday, November 10, 2009

IN Supreme Court Overturns Sex Offender Law, Partly

wane.com : Sex offender registry reduced by 1/3 -Sex offender registry reduced by 1/3
Supreme court decision opens potential.

Allen County, Ind. - A landmark case at the Indiana Supreme Court may decrease the number of people in Allen County that have to register as a sex offender by more than a third. The Indiana Supreme Court overturned a ruling by a Marion County judge in the case of Richard P. Wallace vs. the State of Indiana . It's a decision that could echo across the state.

In 1988, Wallace pleaded guilty to a Class C felony Child Molesting charge. He completed his sentence in 1992, two years before state legislators passed the Sex Offender Registration Act into law. It required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders, among other things. The law was later amended to include all offenders, regardless of conviction date. The Indiana Supreme court ruled making Wallace register as a sex offender is unconstitutional because it violates the state's ban on ex post facto laws.

Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

"I don't get to interpret the law, my job is to enforce the law," said Allen County Sex Offender Registry Administrator, Detective Jeff Shimkus. "I don't have to like it, but we have to apply the law the way the courts tell us to. That's the bottom line."

Shimkus warns parents that the registry is only a tool, and that thorough parenting is the best preventative measure to protect kids. "You can have someone who's not registered, never been convicted of anything, who may be a very sick individual and he just hasn't gotten caught yet. Parents have to have common sense," said Detective Jeff Shimkus
, Allen County Sex Offender Registry Administrator.

The Allen County Sheriff's Department makes contact with about 200 registrants per month, knocking on their doors to confirm their address is correct. Shimkus admits, reducing the number of registrants by a third would reduce the work for police, who are dramatically taxed by the requirement of the Sex Offender Registration Act. Since it's conception in 1994, the law has been amended time and time again, to include more offenses, and more monitoring of offenders.

The Indiana Department of Corrections , the state registry administrative body, has a message to offenders on its website , regarding the Wallace case. It advises offenders to seek legal counsel if the Wallace case applies to them. Shimkus says locally, offenders have to file a motion to have themselves removed from the registry. A handful of people have already done that in Allen County.

Indiana Supreme Court
Richard P. Wallace v. State of Indiana - No. 49S02-0803-CR-138 - April 30, 2009
Appeal from the Marion Superior Court, Criminal Division, No. 49F15-0401-FD-1458
The Honorable Lisa Borges, Judge, On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0706-CR-498

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”) require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision.

Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude 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. We therefore reverse the judgment of the trial court.

Indiana Supreme Court
Todd Jensen v. State of Indiana - No. 02S04-0803-CR-137 - April 30,2009

..the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here.

"But the effects of the Act apply to Jensen much differently than they applied to appellant Wallace. The ―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. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, ―petition the court to consider whether the person should no longer be considered a sexually violent predator."

There is an important distinction between these two cases. Registrants in Indiana should contact the authorities to confirm under which ruling their cases fall. It appears that the Wallace case pre-dated any SORNA law in Indiana, whereas the Jensen case occurred at a later date which gets caught up into the SORNA laws. We at ConstitutionalFights.org are not attorneys, however, and those involved should consult an attorney or raise the matter in a court of appropriate jurisdiction. We advise that no registrant take the word of a law enforcement office, as they are often not a trustworthy source of information on issues such as these.