Strange Indiana Ruling on Residency Restrictions

A helpful reader drew my attention to this lower court ruling in Indiana (on the Indiana Law Blog) concerning residency restrictions in the state.  In analyzing whether the residency restrictions were designed to punish offenders, the court seemed to make an odd distinction:

Had the Indiana General Assembly simply sought to penalize sex offenders if they had ever lived near a school or park, that would imply some sort of vendetta against the sex offenders themselves.  In this case, the General Assembly simply seeks to prohibit current behavior; that of a sex offender, someone who poses a risk to our children, from residing in zones with greater concentrations of children.

This argument is almost the entirety of the court's explanation for why the statute is not designed to punish sex offenders which would raise ex post facto questions.  The court's argument seems to be that a hypothetical law (which would punish offenders who ever lived near a park) would be worse, so the law in question is not designed to be punitive.  That is a bad strawman and logically doesn't follow.  Further arguing that the legislature had laudable goals does not deny it was also intended to be punitive.  That last mistake is one lots of courts have made, but coupled with Indiana court's strange strawman, it just seems like poor reasoning. 

Comments

[Ilah]

This ruling also includes the "official" explanation of the "applies only to crimes comitted after..." clause used in Indiana lawmaking. Specifically, the court found the clause refers to the act of 'sex offender residency,' and can therefore be applied to anyone with a prior conviction.

This has been news to some lawmakers, who believed they were barring retroactive application.

[jjoe]

@Ilah

They could always take a page from Missouri. Not happy with a MO Supreme Court ruling on retroactivity, they will let the voters decide to amend the state Constitution to make an exception for RSOs:

"Section 13. That no ex post facto law, nor law impairing the obligation of
2 contracts, or retrospective in its operation, or making any irrevocable grant of
3 special privileges or immunities, can be enacted; however, a law may be
4 retrospective in its operation with respect to requiring sexual offenders
5 to register with law enforcement as required by law."
http://www.senate.mo.gov/08info/pdf-bill/comm/SJR34.pdf

In other words, the Bill of Rights do not apply to RSOs.

[Ilah]

Yes, MO is going off the deep end. Having to amend one's constitution to permit judicially banned actions should send up at least the teensiest of red flags.

But Indiana is still striving to equal those efforts. Courts here don't want our lawmakers to have to go to all that constitution-amending trouble. THerefore, a judge in a suit paralleling the one above (decided on Feb. 27), wrote in his ruling:
"Where individuals in a group, such as convicted sex offenders, have distinguishing characteristics relevant to the concern of the state of Indiana's protection of children," Thacker wrote, "the state has the authority to implement laws reasonably related to the protection of children."