Retroactive of Sex Offender Registration Requirement; Marion County Sheriff and Department of Corrections Display Contempt for Indiana Supreme Court

Over at the Indiana Law Blog, Marcia Oddi has an interesting story about an issue hashed out in Indiana's appellate courts - whether individuals can be made to register for Indiana's sex offender list on a retroactive basis. In particular if the crime is committed and punishment imposed before the registry was in place, can the person later be required to go back and register? In a series of cases, including one this week, the Indiana Supreme Court has emphatically said "no."

The Indiana Law Blog post is as follows:

Jeff Wiehe and Rebecca S. Green of the Fort Wayne Journal Gazette have an important story today, one that the ILB has looked into before. Here are some quotes:

It’s really, really affected my life in the past five years,” said Call, who claims he was wrongly convicted by a jury of child molesting in 1991 and had to appear on the state sex offender registry after it was created in 1994. “Before I was on the list, I hated the fact I was accused of that crime, but as soon as I got on the list, things got hard.”

A ruling by the Indiana Supreme Court last year [April 2009], though, found that Richard P. Wallace, a man convicted of child molesting in 1989, no longer had to register with the state as a sex offender because he committed his crime before the law that created the registry was enacted.

That ruling has thrown the state and local sex offender registries into disarray.

Allen County officials say that like Wallace, Call is no longer required to register as a sex offender. His name and face have been scrubbed from the Allen County sheriff’s online registry. Officials with the Indiana Department of Correction, though, are refusing to erase any names from the state’s official registry without a court order.

The Allen County registry is supposed to be an offshoot of the state registry, something the sheriff’s department created as a way for local residents to search using the sheriff’s Web site. Now, though, the registries do not match.

At issue are different interpretations of the state high court’s ruling: Officials with the Indiana Department of Correction – which keeps the state’s official registry – believe the ruling applies only to Richard P. Wallace. Allen County police, prosecutors and local judges have determined the ruling applies to everyone.

Cpl. Jeff Shimkus of the Allen County Sheriff’s Department is part of the agency’s Sex Offender Registration and Notification Team. As the officer charged with enforcing the registry laws, Shimkus said more trouble may be ahead.

The situation opens the door for each county to interpret the ruling differently, throwing off uniformity across the state at a time when the state’s goal, in order to comply with federal laws, was to be more standardized regarding sex offenders, Shimkus said.

“It’s going to cause problems with the state site because its accuracy can’t be guaranteed,” Shimkus said.

Sometime after the court’s ruling on the Wallace case last year, officials with the Allen County Prosecutor’s Office met with officials from the Allen County Sheriff’s Department to decide what the decision actually meant, Shimkus said.

The consensus was that the names of offenders who committed crimes before the creation of the registry had to come off the local list.

Also removed were the names of people who had committed lesser crimes that previously did not require registration.

For instance, between 1994 and 1997, people convicted of rape were required to register only if the victim was younger than 18. Someone who raped an adult in 1995 would not have been required to register. But laws were later amended to require all convicted rapists to register as sex offenders.

Now, people convicted of rape before the law was amended no longer appear on the Allen County sex offender registry, local officials said.

“We don’t have to like it, but that’s what the law says,” said Shimkus of the decision.

For nearly four months, Shimkus’ team, including himself, Cpl. Michael Smothermon and Crystal Barker, pored over 625 files of sex offenders. By the time they were done removing names, 375 remained on the registry.
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Like the meeting in Allen County, officials with the Department of Correction, the Indiana Attorney General’s Office and the Indiana Prosecuting Attorneys Council met after the Wallace decision was passed down.

But the consensus was different from the Allen County interpretation.

“The Supreme Court did not order us to review every individual; it referred to only Wallace,” Myers said.

The feeling after the meeting with the attorney general was that offenders who thought they should be off the registry because of the Wallace decision should take it up with the local courts, Myers said. There, an impartial review could be done.

If the DOC receives a court order to remove a name from the list, then that name will be removed, Myers said. So far, the department has received fewer than 70 such orders from local judges.

Allen Superior Court Judge Fran Gull said the criminal division has been inundated with requests to remove sex offenders from the state’s registry, including requests from offenders who were never prosecuted in Allen County.

And Gull has also seen requests from out-of-state offenders or even federal offenders wondering how, or whether, the changes apply to them.

“I don’t know what the status of the law is in other states,” Gull said. “Hell, I don’t know the status of the law in the state of Indiana. It changes all the time.”

As they work through the petitions that fall within local jurisdiction, Gull said they are strictly applying the statute. If the offenders committed their crimes before the registry was in effect, then their names are off the list.

And like Shimkus, Gull believes the confusion could increase.

“I knew it was going to be bad,” she said. “And I don’t think it is as bad as it is going to get.”

Future problems could include offenders not realizing they are eligible to be removed from the registry. The DOC is not doing anything to help, Gull said.

For more, see these ILB entries from last November.

At the end of this ILB entry from Nov. 11, 2009, I looked at what information was now given re the Wallace decision on the DOC site. The DOC page says simply - if you believe the case has an impact on your requirement to register, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases." In other words, individual affirmative action is required to remove a name from the list. And the sheriffs' site is even less informative - the Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision.

This Nov. 18, 2009 ILB entry quotes from a story by Jack Rinehart of Channel 6 News, including:

On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News' Jack Rinehart reported.

"We're not going to remove anybody. We're taking no enforcement action," said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender Registry. "As far as removing faces, names and addresses, we won't do that without a court order."

Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff's department.

In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list.

My question to the Indiana Attorney General elicited this response last Nov. 18th:

To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.

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Back to me. Earlier this week the Indiana Supreme Court in a 5-0 decision again ruled against retroactive application of the the Indiana Sex Offender Registry based on the constitutional prohibition against ex post facto laws.

The Allen County Sheriff's Office should be commended for it willingness to respect and apply the law, which includes court decisions. I can't say the same for the Marion County Sheriff or the Department of Corrections which has indicated that it intends to keep people on the sex offender list even though they know those persons should not on the list. Both are displaying a contempt and arrogance for the law that should be subjected to the most serious sanctions. I hope the disclaimer provided by the Attorney General's Office is accurate and nobody over there gave the ridiculous legal advice that government entities need not comply with decisions of the Supreme Court until ordered to do so by yet another court.