Seventh Circuit Court of Appeals Overturns Previous Victory

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By Larry . . . NARSOL previously reported on the case of Brian Hope v. Commissioner of Indiana Department of Correction, which was favorably decided by a three-judge panel back in January. Unfortunately, the Seventh Circuit granted Indiana’s request for en banc review, and the full court has now turned that victory into a defeat.

Trial Court History

United States District Court judge Richard Young, who serves in the Southern District of Indiana, handed down a fantastic decision back in 2019. We said at the time that the decision had the potential to help many similarly situated offenders who were: (1) convicted in other states and moved to Indiana; or (2) convicted in Indiana, moved away and returned again.

The case was brought on behalf of six named plaintiffs who asserted that the imposition of Indiana’s SORA is unconstitutional as applied to them. Plaintiffs Hope and Snider filed their joint complaint on October 21; Standish joined the case later in 2016. Plaintiffs Rice, Bash, and Rush filed a complaint on December 6, 2017. The court ultimately consolidated the cases. Plaintiffs sought a preliminary injunction which was granted. All but one of the six committed their offense prior to the enactment of Indiana’s registration, and five of the six committed their offense in other states and subsequently moved to Indiana.

Plaintiffs argued that Indiana’s SORA violates their fundamental right to travel, their right to equal protection of the laws, and their right to be free from retroactive punishment. The court examined two important cases. First, the court looked at Smith v. Doe, 538 U.S. 84 (2003) which is the landmark case from the U.S. Supreme Court. The court found the case distinguishable because none of the disabilities imposed by Indiana’s scheme were required by Alaska. Second and more relevant was the case of Wallace v. State, 905 N.E.2d 371 (2009). In Wallace, the offense was committed in1988; he pled guilty in 1989 and completed probation in 1992. After he failed to register in 2003, a jury found him guilty. He appealed and prevailed.

The court rejected all of Indiana’s arguments, and they did put forth some interesting theories. NARSOL said at the time, “The judge’s legal analysis is one of the best I’ve ever seen written, which will make it extremely difficult for the Seventh Circuit to reverse.”

Initial Seventh Circuit Decision

Appellate courts typically decide appeals by having the case reviewed by a three-judge panel. The three-judge panel did affirm Judge Young.

None of the challengers would have been required to register if they: (1) had not moved out of Indiana and returned after 2006; or (2) had not moved into Indiana after 2006. It was in 2006 that the Indiana law was amended to include the requirement that forced a person to register if they relocated to Indiana and had a registration obligation in that state, regardless of whether it is equivalent to an Indiana offense.

All six of the plaintiffs were required to register in Indiana based on a determination by the Indiana Department of Corrections (DOC) and local sheriff’s departments that they had committed a registrable offense or the out-of- state equivalent to such an offense and that they had been required to register in another jurisdiction. Indiana would not have required them to register on these grounds had they been living in the State at the time they committed their offenses and remained there continuously thereafter.

The Seventh Circuit’s initial decision relying on a Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009) recognized that 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). Most of this information is published on the public registry. 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). Convicted sex offenders are required to maintain a valid driver’s license or state identification card, are prohibited from seeking a name change, and must allow a local law enforcement officer to visit their 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).

In Wallace v. State, the Indiana Supreme Court concluded, “. . . the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies. … [and the] duties imposed on offenders are significant and intrusive.” SeeWallace 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 Seventh Circuit decision held that this different treatment “sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit.” Original Opinion at 26.

Recent Seventh Circuit Decision

The Seventh Circuit was very creative in how it managed to undo the previous victory. Judge St. Eve writing for the court noted that Wallace did not foreclose all retroactive applications of SORA because the same day that the state supreme court decided Wallace, it issued its opinion in Jensen v. State, 905 N.E.2d at 388. Unlike Wallace, Jensen pleaded guilty in 2000 which was after SORA’s enactment. At the time of Jensen’s conviction, SORA required that he register as a sex offender for ten years. Before the expiration of Jensen’s ten-year registration requirement, the Indiana General Assembly amended SORA 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. Unfortunately, the Indiana Supreme Court disagreed. This is in contrast to Wallace, who had no obligations before the legislature amended SORA to cover him. The court said that 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. They found that merely increasing the length of an existing registration obligation did not rise to the level of punishment such that it violated the Indiana Constitution.

This case was decided in favor of Indiana based on the fact that these challengers were either required to register by another state or that the person was already required to register due to a previously existing registration requirement. They found that any increase of an existing registration requirement is not unconstitutional. On page 32 of the decision the court stated, “The plaintiffs have not carried their heavy burden of proving that SORA is so punitive in effect as to override the Indiana legislature’s intent to enact a civil law.”

It appears that the Seventh Circuit disregarded Judge Young’s analysis and simply deferred to the Legislature’s stated intent, which they say is not punitive. The court did concede, “While SORA goes farther than the Alaska law in some respects, it is not so far afield as to warrant a different outcome than in Smith.” See Opinion at 32. NARSOL is deeply disappointed that the decision of the full court was to not affirm the three-judge panel. We are not sure if the challengers will seek review by the United States Supreme Court.

This was discussed in more detail on Episode 190 of the Registry Matters Podcast.

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30 Thoughts to “Seventh Circuit Court of Appeals Overturns Previous Victory”

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  1. Tim in WI

    Larry,
    The 7th has now acknowledged the state’s inclusion of pre-act sex offenders conflicts with the prohibition contained in Art. 1 sec.9-10. That is the precise position put forth by the minority in Smith v Doe03 when they defined the database driven registry as “unquestionably punitive in effect.” Obviously the errant majority in Doe03 took the same position expressed by the 7th here regarding the increase from 10 yrs to life term isnt a significant enough delta to trigger abridgement. IMO the 7th errors again to the disadvantage of the already convicted because the question is not whether registration is only slightly punitive but rather if registration is punitive in the least, or at all. This conflation highlights the power of big data to influence public policy. That bunch has had their paws on the scale since the beginning. Despite their creative madison avenue marketing registration is nothing less than indentured servitude to a state machine property intended to impose affirmative restraint and disability. There is nothing new about slavery. History evidences some will fight to the death to preserve it. By the way Wisconsin has yet to recognize a case like Indiana in Wallace. Maybe that is because the similarly situated in WI opt for FTR instead of complaints to the Fed.

    1. H n H

      Hey I know, why don’t we have the psychological tests given to people forced to take such tests via the sham “treatment” to every single person as a requirement to receive their high school diploma! Think of how many more deviants could be tracked. Oh the money, the power, the control! We need to get legislation passed on this immediately! What screwball nut job fresh out of college with a newly elected legislative job is gonna be in line for this fiasco? I’m sure someone will come up with it. After all, if it saves just one teenage girl from the trauma of a sexual encounter she instigates, it would be worth it in the end to have another life ruined via the registry.

      Good luck America!

    2. A z

      Yep…I am waiting for the case from Wisconsin to be decided on. I am one of the original 8 that filed suit. Now off of e.s. I still wear the p.o.s. GPS.

      1. Tim in WI

        You know we’ve a history in WI of AGs bucking for Governor. J. Kaul is no different. You figure he’s using the exact same modus. Sure is!

  2. d

    Having to show up to a police station and give information under penalty of imprisonment if you do not of make a mistake on the information is compelled speech, and against the constitution why was this not in the arguments as well!

  3. Larry

    This is typical of the judges practicing law from the bench. Twist and turn it till it fits the way they want it to, to obtain the desired results creating a conflicting presedent that they can refer to in some other case that the actual law covers in a manner unexceptable for what ever the situation should be.
    Power corrups and absolute power corrups absolutely.

  4. Brian R Chapman

    I want to know why none of the registrants has not challenged the registration requirement as being a violation of the 8th amendment cruel and unusual punishment protections, since we are essentially given a life-sentence on the registry without due process, ie there is no separate evaluation to determine whether or not one convicted of a sexual crime is indeed a “sex offender”, yet to get any relief from the registry requirements, (in Virginia) one must be evaluated by a panel of Sex Offender Treatment Providers to determine if the “offender” may be relieved from the requirements to register, or modification of the imposed level. Why also is no one making a monetary claim against the State to get compensated for acting “as” as sex offender for registration purposes, since keeping up with the precepts is a full time job, and can have serious consequences imposed upon the registrant should he/she fail to re-register as proscribed.

    1. Sandy

      The death penalty is legal in our nation. That is a very high standard. It would be more than difficult to support a claim of anything less being “cruel and unusual.”

    2. Aj

      “Life liberty and the pursuit of happiness. ”
      I do believe is a constitutional right of the people.
      So i am told. But for us, who are under constant barrage, this does not exist. As long as the registry continues, and it will, it never will be livable for the 800,000 plus on the registry.

      1. Larry

        You have to remember that the Constitution is not used in the court system or in most law enforcement for that matter. The justice department relies on president. The only time the Constitution comes into play is when it is to the benefit of the court. The Magnacarta holds more sway in the court than the Constitution.
        If the Constitution was really in effect then they couldn’t hold you in jail waiting on trial because it’s unconstitutional to imprison an innocent person. So just saying innocent until proven guilty is a lie in it’s self. The grand jury finds you guilty before you ever go to trial and the burden of proof rests upon you to prove your innocent.

  5. CherokeeJack

    They are so afraid that any win for an individual, has potential to be a win for the masses. This scares them and they appeal, get a reversal, making it that much harder for us to ever succeed. Many of us are on the registry for charges from over 3 decades ago and are not getting any younger. Many of us have grandchildren.
    Why the supreme court is so afraid of doing the right thing and abolishing the registries, is insane. We are treated like lepers.

    1. Sandy

      The Supreme Court cannot just abolish the registry. All the Court can do is rule on cases that are brought before it for which it has granted cert, cases that have worked their way through the lower courts.

      1. Ed C

        Very true, Sandy. Ever since the 2003 Alaska Smith v. Doe decision, many rulings have turned on the question of punishment and ex post facto. If a registry implementation is clearly established as punishment, would that not be a violation of the Constitution’s “Bills of Attainder” (or “pains and penalties”) provision? This would be much more sweeping than ex post facto in that it would not hinge on when a crime was committed.

        Compared to ex post facto, there is very little case law on the subject. As ACSOL’s Janice Bellucci has pointed out, the danger of such a novel case is that we might get an adverse decision that could set us back as did Smith v. Doe. As a community, we must be very careful to choose the right circumstances in which to make the claim. We can use ex post facto as the vehicle to chip away at the “not punishment” edifice. Because the courts generally don’t reach beyond the cases presented to them, they likely will never draw a bright line to define punishment. At the moment, all we can do is to incrementally get more registration provisions into the punishment column.

        Veritas.

      2. Larry

        None of this is or can be answered in the federal courts. These are state laws and are protected from federal interference by the 10th amendment. This is an example of the courts using the constitution when it serves their needs.
        We all know that the federal government extorted the states into implementing these registries by threatening withholding federal subsidies from state and local law enforcement agencies if they weren’t implemented. But they can’t do anything about state and local laws. Just ask them.
        But don’t bring up 10th amendment presetent when it comes to the 2nd amendment.

  6. Jim

    While we must certainly continue to hope for future and far reaching victories in the courts, we must also recognize how diminished in power is the US Constitution these days. Courts on all levels are highly politicized, and more apt to follow the status quo than the letter of the law. No matter how clear the constitution may be on certain rights, we live in a day in which literally everything is up for debate. This “cancer” will not stop with RSO’s, but will wrap its tentacles around a growing number of American citizens as legislators conceive of more and more ways to tighten the lid on equal justice and liberty for all.

  7. Jim

    The courts are just playing with us. Like a cat playing with a mouse. The say yes we agree this is bad, then they pounce. Then they back off, then Pounce again. Then we think we might be ok then the courts pounce again then eat sex offenders like the mouse. The goal of the United States is to remove all citizen rights and they started with the most easy target, The Despicable Sex Offender which we are as seen by the government and public. They succeeded with no back lash and with favor of the public for the “safety of the people”. After this success they moved to the Patriot Act after the 911 event. Took more rights from people and citizens that they claimed the rights needed to be taken again for “the safety of the people”. Which the scared and misinformed people agreed with again. Now the Big one, the virus. This is the biggest Rights Grab yet. Don’t block me yet, because I know the virus is real. But the government didnt let people work, forced and closed Many “more than you realize” businesses that lives depended on permanently. Again for the “safety of the people”. Again most of the people agree with the rights grab for their blind safety. Do you all see a pattern here???? Not looking good for anyone’s rights. Especially Sex Offenders.

    1. A Mistake They Made

      I have been watching the same scenario play out as you. Most are blind to this the end game that they are playing. The frog in the boiling pot comes to mind.

  8. mut

    forcing anyone to perform a valuable service for free is exploitation. if i did it i would be back in prison for human trafficking.

    1. mut

      i cant find a jury instruction that requires a jury to find ‘hard labor’ or ‘poor conditions’ as an element of human trafficking. all that appears required is force and some action that benefits another economically.

  9. mut

    if its now fashionable to do that to people maybe i should go back and challenge my 1984 conviction ???

  10. mut

    i cant find a jury instruction from a criminal trial that justifies the courts conclusions here.

  11. freedomwriter

    There is no justice in the justice system.

  12. Doug in IN

    A voice will never be from a few. But in a class action lawsuit of 100 or a 1,000. It takes more than a few voices to be heard. Until we march together with our wives, and children on the Capitals, and even D.C. it will never change. Sorry but that is the cold hard truth to this all. I fought the system in Indiana a cpl years ago, the law kept me from going on school grounds from watching my son play high school football. The law changed “AFTER” my 4 years after my sentence and offence. We fought it under “Ex Post Facto”, but the State and the Supreme Court claimed that it was not “Ex Post Facto”. They twisted it to their favor as they always do. Long story short I won long enough to watch 2 years of his high school playing years, and managed to see his Senior Year, so the fight was worth it! But how they claimed it was not Ex Post Facto still baffles me to this day.

  13. TS

    The “en banc” Seventh followed the Tenth in their same way of backing out of it, sadly. Intentional vs reality are two different animals when it comes to what happens with laws. I’d like to know how a court case can challenge on those grounds, if there is a way. Take on the intentional with the reality of things.

  14. mike candela

    Well, I’m tired of putting strain on my brain to learn new law definitions, such as “en blanc”. None of that matters. The precedents don’t matter. The fact that in Fl, the only retroactive part of the statute , besides things like having a scarlet letter on ur license, is when they first created the registry, which had affected how many would be on there in the beginning when the hysteria hit the fan and the news stations called the play-by-play of the most unconstitutional law at least since the Jim Crowe era laws, and that was the definition of a sex offender: Someone who was convicted ON or AFTER Oct. 1, 1997. Residency restrictions, halloween participation, the Juvenile registry, were all written as convicted AFTER the law went into effect. It’s obvious why the law that controlled how many would be on the site when it launched, was written as it was. But what can be done about it?

    1. Tim in WI

      Mike you accurately report the inherent effect of all internet broadcasts that vastly exceed “functional necessity.” If the intent of registration is to inform the people concerning ” offenders in their area” then why opt to broadcast (publish) on a world wide scale? Laying claim to the cause of “potential mobility of offenders” directly implicates a liberty interest of that offender and uncovers the true underlying intent of overbroad affirmative restraint imposed via the registry database.

      A qestion I put to agents goes like this:

  15. mut

    18 usc 1595 allows a private action for human trafficking. but the way the federal court here and in the 9th circuit just disposed of my five dollar 2241 petition makes me worry i would be hit with attorney fees and costs if i sued under 1595. especially if i include the federal judges and deputy attorney general involved as individual defendants.

  16. mut

    they didnt just decide to make people register. they first envisioned a real time data bank. then they figured out how to populate that data bank. for free, to aleviate the cost of acquiring the data by alternate means. that is so immoral. pretty much the same thing they convicted me of.
    blabla

  17. Jeanne

    I wish someone would address the challenges of learning disabilities of some sex offenders when it comes to defending themselves against accusations and complying with registering.

    1. mut

      spose to have a lawyer for that. but some are conflicted, from their college days perhaps.