Hope v. Comm'r of Ind. Dep't of Corr., 19-2523
| Decision Date | 06 January 2021 |
| Docket Number | No. 19-2523,19-2523 |
| Citation | 984 F.3d 532 |
| 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 |
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.
Before Rovner, Wood, and St. Eve, Circuit Judges.
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.
Although sex offender registries had been around for some time prior, they proliferated in the early 1990's due to a few high profile and highly publicized heinous crimes against children by repeat sex offenders. We can assume that more widespread access to the internet in the 1990's also contributed to the proliferations of these laws. For the first time, anyone with an internet connection could access the information in these registries from their homes with a few mouse clicks and find out the location of convicted sex offenders in their communities. In 1994, Indiana enacted its own version of a sex offender registry, SORA, also called "Zachary's Law," after a 10-year-old boy who was tragically sexually assaulted and murdered by a neighbor with a previous criminal conviction for sexual assault of a child. 1994 Ind. P.L. 11 § 7 (codified as Indiana Code §§ 5-2-12-1 through 5-2-12-13 ) (current version at Ind. Code §§ 11-8-8-1 through 11-8-8-23 ).
Around the same time, in the federal arena, Congress was enacting sex offender registration and notification laws, culminating in 2006 with the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C.A. § 20901 et. seq., which requires states to maintain public registries with specified sex offender information. Indiana has periodically amended its SORA to remain in compliance with changing requirements of the federal SORNA, and, according to Indiana's brief, to target those most likely to recidivate. In 1996, the Indiana General Assembly revised SORA to require registration by one convicted elsewhere of a state offense that is substantially equivalent to an Indiana offense that triggers a duty to register. 1996 Ind. P.L. 33 § 2; see also 2001 Ind. P.L. 238 § 4 ().1 And, most relevantly, in 2006, the legislature amended SORA to apply the statute's requirements to any "person who is required to register as a sex offender in any jurisdiction." 2006 P.L. 140 § 5(b)(1) (codified at Ind. Code §§ 11-8-8-4.5(b)(1), 11-8-8-5(b)(1) ).
Those amendments have greatly expanded both the list of persons required to register and the information those registrants are required to provide. The current SORA requirements are many. A person required to register under SORA must report in person at least once annually to the local sheriff's office in the county of residence, and if the registrant is employed or attends school in a different county, the registrant must report to the sheriff's office in each of those counties as well. Sexual offenders who have committed one of nine specified offenses are considered to be "sexually violent predators" and must report to the local sheriff's office every ninety days. Ind. Code. § 11-8-8-14(b). A person who is homeless or lives in transitional or temporary housing must appear in person at least once every seven days. Id. at § 11-8-8-12(b)(2).
Registration requires more than simply appearing at the sheriff's office. The person registering must be photographed and provide information including their name, date of birth, race, height, weight, hair color, eye color, identifying features such as scars and tattoos, social security number, driver's license or state identification card number, vehicle description and license plate number of any vehicle the registrant might operate regularly, principal address, name and address of any employer or educational institution, any electronic mail addresses, any instant messaging user names, any social networking website user name and "[a]ny other information required by the [Department of Corrections (DOC)]." Ind. Code § 11-8-8-8(a).2 Most of this information is published on the public registry, although some of the information (such as an individual's e-mail address) is not available to the public. If any of this information changes, the registrant must go in person to the sheriff's office, within seventy-two hours, to report it. Ind. Code. § 11-8-8-8(c). That means, for example, if a registrant gets a Pinterest account, that person must report the new account, in person, at the local sheriff's office, within seventy-two hours. Convicted sex offenders are required to maintain a valid driver's license or state identification card and are prohibited from seeking a name change. Ind. Code. §§ 11-8-8-15(b), 16.
In addition to all of these requirements, a sexually violent predator must inform law enforcement of any absences away from home that are longer than seventy-two hours. Ind. Code § 11-8-8-18.3 And an "offender against children" may not work, volunteer, or reside within 1,000 feet of a school, a youth program center, or a public park. Ind. Code §§ 35-42-4-10, 11.4 A person who is a "serious sex offender" may not enter school property. Ind. Code. § 35-42-4-14(b).5
To verify addresses, a local law enforcement officer must visit a registrant's home at least once per year, and at least once every ninety days if the offender is a "sexually violent predator." Ind. Code § 11-8-8-13(a). As of March 16, 2018, there were close to 10,000 persons required to register as sex or violent offenders in Indiana. R. 100-2 at 9.
After cataloguing the burdens that we have just enumerated, the Indiana Supreme Court concluded that Wallace v. State , 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana Supreme Court concluded that the Act had the "effect of adding punishment beyond that which could have been imposed when his crime was committed," and therefore the State could not impose the requirements of SORA on anyone whose offense predated the enactment of that statute. Id. at 384. To do so, it held, would violate the ex post facto clause of the Indiana Constitution. Id. As a result, Indiana does not require any person to register if the offense occurred prior to SORA—provided that person remains a resident of Indiana.
This case is before us now, however, because, despite the Wallace decision, persons with pre-SORA convictions who relocate to Indiana from another state where registration was required or relocate from Indiana to another state requiring registration and then back again, must register in Indiana, even if Indiana would not have required them to register had they committed their offenses in Indiana and never left.
We must pause here, before getting to the State's reasons for requiring these registrations, in order to untangle a Gordian knot in this case. The State has argued in its briefs that there are two situations in which the DOC decides that a person is required to register upon moving to Indiana.6 Those circumstances are as follows:
(1) The substantial equivalency requirement: If an individual relocates to Indiana after the offense of which that individual was convicted, or its out-of-state-equivalent, became a registrable offense, the DOC requires that individual to register based on its determination that, at the time that the individual relocated to Indiana, he was "on notice" that the offense requires registration. (R. 100-1 at 24–25, R. 100-2 at 15–16). Indiana requires the person to register whether or not that person was obligated to register in the state from which that person came.
(2) The other jurisdiction requirement: If the individual is required to register in another jurisdiction and relocates to Indiana after July 1, 2006, the DOC requires the individual to register pursuant to Indiana Code § 11-8-8-5(b)(1), which defines a "sex or violent offender" to include an individual "required to register as a sex or violent offender in any jurisdiction." (R. 100-1 at 24-25, 39; R. 100-2 at 16–17).7 Of course, one can be required to register in another state as a result of one's employment or school enrollment in that state, even if he does not live there.
E.g. , 730 ILCS 150/3(a-5). Thus, the State points out that "[a] lifelong Indiana resident who would otherwise fall within the Wallace rule will be required to register if he works in another state that requires him to register;" State Br. at 5. But that particular application of the other jurisdiction requirement is not at issue here: So far as the briefing reveals, none of the six plaintiffs...
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