Seventh Circuit: Indiana’s Sex Offender Registration Act’s ‘Other Jurisdiction Requirement’ Unconstitutional Violation of Right to Travel
Plaintiffs Brian Hope, Gary Snider, Joseph Standish, Patrick Rice, Adam Bash, and Scott Rush (collectively, “Plaintiffs”) filed suit against the Commissioner of the Indiana Department of Correction (“DOC”) and other officials (collectively, “Defendants”) challenging the constitutionality of SORA as applied to them. In the 1990s, Snider, Standish, Bash, Rice, and Rush were convicted of various sexual offenses in other states that were committed in the 1980s and early 1990s. After completing their sentences and probation, each relocated to Indiana (Snider in 2003, Standish in 2013, Bash in 2000, Rice and Rush in 2017) where they were required to register. (Snider was told he didn’t have to register any longer in 2010 pursuant to Wallace v. State, 905 N.E.2d 371 (Ind. 2009), but then in 2016, the DOC told him he had to register again.) Under SORA, they are deemed sexually violent predators (“SVP”) and required to register every 90 days for the rest of their lives.
Hope pleaded guilty to child molestation in Indiana in 1996 for a crime that occurred in 1993. He completed probation in 2000 and moved to Texas. In 2013, Hope returned to Indiana and was required to register for life as an “offender against children.”
Hope and Snider had to change residences in Indiana because their residences were within 1,000 feet of a park, daycare center, or other facility. Snider, Standish, Bash, and Rush could not attend their children’s school functions or parent-teacher meetings because SORA prohibits them from entering school grounds.
The Defendants asserted that each Plaintiff was required to register under SORA’s “substantial equivalency requirement” and the “other jurisdiction requirement.” The district court ruled that SORA violated several of Plaintiffs’ rights, including the right to travel, and that SORA’s requirements, as applied, could not stand. Defendants appealed. On appeal, the Defendants dropped their “substantial equivalency” grounds, relying only on the “other jurisdiction requirement.”
The Seventh Circuit observed that SORA was enacted in 1994. 1994 P.L. 11 § 7. It has been amended several times to remain in compliance with the federal Sex Offender Registration and Notification Act and, purportedly, to target those sex offenders most likely to recidivate. Each amendment expanded the number of offenses for which registration was required and/or expanded the duties required by registration. For example, the 1996 amendment required registration of offenders convicted in other states of offenses that would require registration if the offense had been committed in Indiana (“substantial equivalency requirement”). 1996 P.L. 32 § 2. This provision was made retroactive in 2001. 2001 P.L. 238 § 4. A 2006 amendment applied SORA’s requirements to any person who was required to register as a sex offender in any jurisdiction (“other jurisdiction requirement”). 2006 P.L. 140 § 5(b)(1).
Those amendments also made the burdens of registration more onerous: a registrant must report to the local sheriff in person at least once per year (unless the registrant was convicted of an offense that deemed him/her an SVP which requires a personal appearance every 90 days); the registrant must also personally appear before the sheriff of any county in which he or she works or attends school; homeless persons must personally appear every seven days; registrants at each appearance are photographed and must provide their physical descriptive information, birthdate, Social Security number, principal address, phone number, description and plate number of every vehicle they might drive, addresses of employers and schools they attend, email addresses and social media user names, and other information. If any of this information changes, the registrant must personally appear before a sheriff within 72 hours to report it. Registration requires several hours and often takes an entire day.
As mentioned above, there are also restrictions on where registrants may live, and registrants are prohibited from school premises. Registrants deemed to be SVPs or deemed “offenders against children” must register for life.
Due to these extensive burdens, the Indiana Supreme Court concluded that SORA “imposes significant affirmative obligations and a severe stigma on every person to whom it applies.... [And the] duties imposed are significant and intrusive.” Wallace. SORA has the effect of adding punishment beyond that which could have been imposed at the time of the offense; therefore, imposing the requirements on anyone whose offenses predated SORA’s enactment violates the ex post facto clause of the Indiana Constitution. Id.
Per Wallace, any Indiana resident whose offense occurred prior to SORA is not required to register – provided that person remained a resident of Indiana. But under the “other jurisdiction requirement,” any person relocating to Indiana must register under SORA if their previous state required that person to register. This “other jurisdiction requirement” applies even if that person would not be required to register if he or she committed the offense in Indiana and hadn’t left. That’s the reason why the provision violates the Plaintiffs’ right to travel, according to the Court.
The right to travel encompasses three related components: (1) the right to enter and leave a state, (2) the right of a citizen of one state to be treated as a welcome visitor in another state and not be treated as an unfriendly alien, and (3) the right to settle and become a permanent resident of a state and to be treated equally with other citizens of that state. Saenz v. Roe, 526 U.S. 489 (1999).
While the third component of the right to travel is not specifically enumerated in the federal Constitution, Saenz placed it squarely within the Privileges or Immunities Clause of the Fourteenth Amendment. Id. The instant case concerns the third component because Indiana created two classes of citizens: (A) residents whose qualifying offenses predated SORA’s other jurisdiction requirement and who never left Indiana, and (B) residents whose qualifying offenses predated SORA’s other jurisdiction requirement but who moved to Indiana from another state that required them to register. The former class of Indiana residents are not required to register while the latter class of Indiana residents must do so register.
The Saenz decision dealt with a California law that limited welfare benefits to newly arrived citizens for the first 12 months to no more than the amount they could have collected in their previous state. The U.S. Supreme Court concluded that “[n]either the duration of respondents’ California residence, nor the identity of their prior states of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the state’s interest in making an equitable allocation of the funds to be distributed among its needy citizens.” Saenz. The U.S. Supreme Court recognized that states have a valid interest in preserving the fiscal integrity of their programs, but states “may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, 394 U.S. 618 (1969).
In the instant case, Indiana has a strong interest in protecting its residents from potential predations of sex offenders, the Court noted. But the Court explained that singling out only newer citizens with a history of sex offenses to the exclusion of more longstanding citizens with the same or similar criminal history doesn’t further the Defendants’ claimed interest. Doe v. Penn. Bd. of Prob. & Parole, 513 F.3d 95 (3d Cir. 2008). The distinction is irrational and violates equal protection. Id.
The Court concluded Indiana’s scheme under SORA places burdens on newer citizens and deprives them of the same rights and privileges of more longstanding citizens in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Consequently, SORA violates the Plaintiffs’ and other similarly situated Indiana residents’ right to travel.
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Hope v. Commissioner of Indiana Department of Correction
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