A WIN for people in the state of Indiana yesterday, as the 7th Circuit Upholds a lower court decision in favor of a group of persons with past sexual offense convictions who move to Indiana and were forced to register, where they would not have to had they been convicted in Indiana.
Here’s the start of the opinion:
Sex offender registration and notification laws have a unique place at the intersection of criminal and civil law. These civil laws impose cumbersome and often lifelong burdens on former criminal perpetrators, many of whom have finished all forms of imprisonment and post-imprisonment supervision. For this reason, they are frequently challenged as unconstitutional. In this case, the plaintiffs have challenged Indiana’s Sex Offender Registration Act (SORA) as it applies to offenders who have relocated to Indiana from other states after the enactment of SORA, and who are forced to register under the law, but would not have been required to do so had they committed their crimes as residents of Indiana prior to the enactment of the relevant portions of SORA and maintained citizenship there. The district court found the registration requirements to be unconstitutional, and we uphold the district court’s finding that this application of SORA violates the plaintiffs’ right to travel.
Here’s the full opinion: Hope v. Indiana
Yet another narrow “victory” that only benefits the SIX litigants:
https://narsol.org/2021/01/seventh-circuit-orders-names-of-six-indiana-registrants-removed-from-registry/
Re-scratch Indiana from my exodus plan.
The Indiana Supreme Court’s ruling in Wallace was pretty encouraging, however, courts have narrowed Wallace, including in Jensen issued on the same day as Wallace. Before moving to Indiana read Jensen v State, 905 NE2d 384 (2009); Healey v State, 969 NE2d 607 (2012); Lemmon v Harris, 949 NE2d 803 (2011); Vickery v State, 932 NE2d 678 (2010) and State v Kirby, 120 NE2d 574 (2019).
Wallace and Hope look encouraging but Indiana has backpedeled from Wallace significantly. While Hope states that out of state registrants must be treated the same as instate registrants, you will find that instate registrants are having few victories.
Do your home work before you move to another state. A temporary move may be advisable so you can return if your new state doesn’t pan out.
I read through this opinion and do not see how it negates Indiana Code Title 11. Corrections § 11-8-8-19:
“(f) A person who is required to register as a sex or violent offender in any jurisdiction shall register for the period required by the other jurisdiction or the period described in this section, whichever is longer.”
This clause was the reason I scratched Indiana off my list of places to die in. I mentioned this in a previous FAC post:
https://floridaactioncommittee.org/in-court-reinstates-petition-to-get-off-sex-offender-registry/
I’m no lawyer, but I carefully read the opinion of the 7th Circuit Court of Appeal and their holding appears to invalidate this provision. This is the “other-jurisdiction” requirement that the Court struck down as a violation of the right to travel. The Court said that the State of Indiana must treat Indianans and citizens of other states who relocate to Indiana equally in terms of their registration obligations.
Thanks for your prompt response. So when should we pack up and head for [Southern] Indiana?
To clarify, does this only benefit those with older pre SORA convictions?
Or does this provide any relief to those willing to relocate to Indiana but have more recent post SORA convictions?
I fully agree, RM. In fact, I have long stated that the “other jurisdiction” parts of SORAs violate the 14th/Freedom of Travel Clause. The specific instance of which I’m aware (though not subject to) is in Minnesota. Minnesota uses the greater of its terms or the terms of the state from whence the migrant came. That is 100% discriminating between natives and migrants, not to mention against those migrants. Though only persuasive outside the 7th’s turf (IN, IL, WI), I foresee this case as a solid arrow in the quiver for challenging these types of provisions everywhere.
A twist on this type of deal is the state where I live only counts the time while a resident of the State towards satisfying the number of years registered. In other words, the registration period starts from the time residency is established, NOT from when the crime took place. They also do not give “credit” if one leaves and comes back. Any time spent as a non-resident tolls the clock on registration. Blatantly unconstitutional, IMO.
These registry laws are such a giant clusterf#ck!! Just look at this OPPOSITE ruling for Washington State v. Batson!!:
https://mitchellhamline.edu/sex-offense-litigation-policy/2020/12/20/state-v-batson-wash-2020/
How can all this confusion, contradictory regulations, consequence, etc. continue to be considered to be Constitutional – BY ANY JUDGE IN ANY COURT!! 😡
The case you cite isn’t wholly settled. What the WASC said is that it’s not an unconstitutional delegation to AZ. It then remanded the case back to the lower court to consider the further claims of, “ex post facto, double jeopardy, and equal protection,” violations. It’s the last one, equal protection, that this IN case addresses. This WA case may end up falling the same way as the IN case. The plaintiff should certainly raise the claim that he’s being treated differently than a native, non-traveling, citizen would be. That is the crux of the case(
A perhaps more suitable case showing a competing outcome is Doe v. Jindal (E.E. La. 2015): https://mitchellhamline.edu/sex-offense-litigation-policy/wp-content/uploads/sites/61/2019/04/Trial-Court-Opinion-1.pdf
In this suit, the Court took the exact opposite position on Saenz v. Roe’s application here. What I find interesting is the Opinion says out-of-state offenders are never similarly situated because the offenses happened in different states. And yet somehow the state claims that same offense is similar to whatever offense in its list and compels registration. So it’s not the same when the offender sues, but it is the same when the state wants to throw a smackdown? uhhh….not ok.
So could you guys post the relevant Indiana laws? I recall seeing them somewhere in the past and it looked like a goodly number of us would’ve come off the registry after 10 years But for the new law. But I wonder about the child offender classification. I don’t recall that being as commonly imposed under the laws that I recall reading.
http://iga.in.gov/legislative/laws/2020/ic/titles/011#11-8-8
This is good. I’m actually working on relocating to Indiana. Granted Florida is a lifetime state, but supposedly you can file to get off. Indiana you can be removed from the registry in the state. So hopefully this is a move in the right direction.
Did Indiana used to have automatic removal after 10 years if you qualified? I would still be concerned that they would say that you were an out-of-state lifetime registrant like Pennsylvania, Ohio, Rhoda Island, etc did. That way they avoid/defythe provisions of a court ruling just like Ohio and Pennsylvania have.
From my reading of this case, it shouldn’t matter what the previous state imposes. From my understanding, IN must assess you based on if your crime had happened in IN. Note that there is a dividing line for offenders before and after the 2006 SORA amendment in IN, so if convicted after that date, you may not have the same protections. That said, if your FL crime only requires 15 years in IN and you’re 16 years down the road, IN should be prohibited from forcing you to register. As the Opinion says, “[t]he other jurisdiction requirement of Indiana’s SORA imposes a duty to register and its attendant burdens upon a relocating citizen that it would not impose upon a lifelong Indiana resident. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits this differential treatment.”