Hope v. Comm'r of Ind. Dep't of Corr.

• Decision Date: 16 August 2021
• Docket Number: No. 19-2523,19-2523
• Citation: 9 F.4th 513
• Parties: Brian HOPE, et al., Plaintiffs-Appellees, v. COMMISSIONER OF INDIANA DEPARTMENT OF CORRECTION, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

9 F.4th 513

Brian HOPE, et al., Plaintiffs-Appellees,

v.COMMISSIONER OF INDIANA DEPARTMENT OF CORRECTION, et al., Defendants-Appellants.

No. 19-2523

United States Court of Appeals, Seventh Circuit.

Argued May 20, 2021

Decided August 16, 2021

Gavin M. Rose, Stevie J. Pactor, Attorneys, American Civil Liberties Union of Indiana, Indianapolis, IN, for Plaintiffs - Appellees

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Attorneys, Office of the Attorney General, Indianapolis, IN, for Defendants - Appellants

James A. Campbell, Attorney, Office of the Attorney General, Lincoln, NE, for Amicus Curiae State of Nebraska

Before Sykes, Chief Judge, and Easterbrook, Kanne, Rovner, Wood, Hamilton, Brennan, Scudder, St. Eve, and Kirsch, Circuit Judges.¹

St. Eve, Circuit Judge.

Indiana's Sex Offender Registration Act ("SORA") imposes registration requirements and restrictions on sex offenders who reside, work, or study in the State.Ind. Code § 11-8-8-1 et seq .By virtue of the State supreme court's construction of the Indiana Constitution, Indiana's Ex Post Facto Clause prohibits retroactive application of SORA to offenders convicted before its enactment unless the marginal effects of doing so would not be punitive.Wallace v. State , 905 N.E.2d 371(Ind.2009);Jensen v. State , 905 N.E.2d 384(Ind.2009).If an offender was under no registration requirement prior to SORA's passage, imposing a registration requirement in the first instance is impermissibly punitive.Wallace , 905 N.E.2d at 371.The Indiana Supreme Court has held, however, that if another state previously subjected a pre-SORA offender to a registration requirement, requiring him to register in Indiana is not punitive.See, e.g. , Tyson v. State , 51 N.E.3d 88(Ind.2016).Indiana caselaw thus has the peculiar effect of permitting the State to treat similarly situated offenders differently based solely on whether an offender had an out-of-state registration obligation.That feature underlies the present appeal.

The plaintiffs, six sex offenders residing in Indiana, were convicted prior to SORA's passage.Each of them had to register in another state.After moving to Indiana, the State required them to register under SORA.Absent their out-of-state registration obligations, Indiana's Constitution would prohibit SORA's application to them.Plaintiffs challenge the constitutionality of SORA on three fronts, arguing that it violates their right to travel under the Privileges or Immunities Clause, their right to equal protection under the Fourteenth Amendment, andArticle I's prohibition on ex post facto laws.The district court granted summary judgment for the plaintiffs on all claims, and Indiana appealed.A divided panel of this Court affirmed the district court, but we subsequently agreed to hear the case en banc.

We now reverse.SORA does not violate the right to travel because it does not expressly discriminate based on residency, as consistently required by the Supreme Court.Plaintiffs’ ex post facto claim is likewise precluded by precedent.Applying Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164(2003), we hold that SORA is not "so punitive either in purpose or effect" as to surmount Indiana's nonpunitive intent for the law.But because the district court did not address whether SORA passes rational basis scrutiny under an equal protection analysis, we remand for consideration of the equal protection claim.

I.

A.

The Indiana General Assembly enacted SORA, also known as "Zachary's Law," in 1994.SORA establishes both requirements and restrictions for qualifying sex offenders, and it authorizes the Indiana Department of Correction("IDOC") to collect and publish data about them.Ind. Code § 11-8-2-13(b).Under SORA, offenders must register by reporting to local law enforcement at least once annually in every county where they reside, work, or study.§§ 11-8-8-14,11-8-8-7.Reporting requirements are more frequent for "sexually violent predators"—every 90 days—and offenders without permanent housing—every 7 days.§§ 11-8-8-14,11-8-8-12.Registration entails providing detailed personal information, including: a photograph; legal name, date of birth, and physiological features; identification numbers; internet usernames and email addresses; residential, school, and workplace addresses; vehicle information and license plate number; and any "other information required by the [IDOC]."§ 11-8-8-8(a).Offenders must report any change to this information within 72 hours.SORA also mandates that law enforcement officers contact offenders once a year to verify their residences (every 90 days for sexually violent offenders).§ 11-8-8-13(a).And offenders pay a yearly $50 registration fee, plus a $5 fee any time they must register a change of address.§ 36-2-13-5.6.

Certain offenders are subject to more stringent requirements.A "sexually violent predator" must notify law enforcement if he plans to be absent from his residence for more than 72 hours and must register in the county that he visits.§ 11-8-8-18.An "offender against children" may not work or volunteer at a school, daycare, youth program center, or public park and cannot live within 1,000 feet of these locations.§§ 35-42-4-10(c),35-42-4-11.A "serious sex offender" may not enter school property.§ 35-42-4-14.An offender's failure to comply with SORA can result in criminal sanctions.

Following its enactment, SORA underwent several expansions.Indiana broadened the list of crimes that trigger registration requirements, and it amended SORA to require registration for individuals convicted of substantially similar offenses in another state.On July 1, 2006, the General Assembly extended SORA's requirements to any "person who is required to register as a sex offender in any jurisdiction."§ 11-8-8-5(b)(1).In its current form, SORA requires offenders to register if they were:

(1) convicted of an enumerated Indiana criminal offense, §§ 11-8-8-4.5,11-8-8-5(a);

(2) convicted of a "substantially similar" offense in another jurisdiction, § 1-1-2-4(b)(3); or

(3) required to register by another state (the "other-jurisdiction provision"), § 11-8-8-5(b)(1).

By its plain terms, SORA covers any offender who fits within these categories—regardless of his date of conviction.

B.

While SORA is fully retrospective as a statutory matter, the Indiana Constitution constrains its applicability to offenders with pre-SORA offenses.The Indiana Supreme Court articulated these constitutional boundaries in a series of decisions, beginning with Wallace v. State .In Wallace , the court applied its own version of the Supreme Court's "intent-effects" test and held that SORA had a punitive effect as applied to Wallace—who had been charged, convicted, and served his sentence before Indiana enacted SORA—and that it thus violated Indiana's Ex Post Facto Clause.905 N.E.2d at 379, 384.

Wallace did not foreclose all retroactive applications of SORA, however.Indeed, the same day that it decided Wallace , the Indiana Supreme Court issued its opinion in Jensen v. State .Unlike Wallace, Jensen pleaded guilty in 2000—after SORA's enactment.905 N.E.2d at 388.At the time of his conviction, SORA required that he register as a sex offender for ten years.Id. at 389.Before the expiration of Jensen's ten-year registration requirement, the Indiana General Assembly amended SORA in 2006 to mandate that offenders like him register for life.He argued that this extension as applied to him violated Indiana's Ex Post Facto Clause, but the Indiana Supreme Court disagreed.In contrast to Wallace, who had no obligations before the legislature amended SORA to cover him, 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 2006amendments."Id. at 394.Increasing only the length of an existing registration obligation did not rise to the level of "punishment" such that it violated the Indiana Constitution.Id. at 391–93.

After Jensen , the Indiana Supreme Court continued to focus on the marginal effects of SORA and its amendments.In State v. Pollard , 908 N.E.2d 1145(Ind.2009), it said that retroactively applying a new residency restriction was "adding punishment."Id. at 1154.The court's decision in Lemmon v. Harris , 949 N.E.2d 803(Ind.2011), though, concluded that an amendment that reclassified someone from a sex offender to a "sexually violent predator" was not punitive because, just like for Jensen, it amounted only to an extension of pre-existing obligations and was not "any more punitive."Id. at 810–11, 813 n.19.

Up to this point, each case had asked whether SORA had a marginal punitive effect compared to those requirements already imposed by Indiana law.A trio of 2016cases fleshed out the retroactive applicability of SORA to offenders whose initial registration requirements originated in other states.In Tyson v. State , the court upheld the registration requirement for an offender obligated to register under Texas law at the time of his conviction.51 N.E.3d at 90.It did so even though his conviction and Texas registration obligation occurred before Indiana's SORA covered his offense.Id.In reaching this result, the court concluded that the effect of "maintaining a registry requirement across state lines does not amount to a punitive burden" in violation of the stateconstitution.Id.

The court extended this reasoning in State v. Zerbe , 50 N.E.3d 368(Ind.2016).Zerbe was convicted in Michigan in 1992, before either Michigan or Indiana had enacted sex offender registration laws.Id. at 369.Michigan nevertheless required Zerbe to register upon his release from prison because Michigan did not share Indiana's stricter Ex Post Facto Clause and applied its law retroactively.Id. at 371.This twist changed nothing: the effect of maintaining that registration in Indiana was not punitive.Id. at 370–71....