A three-judge panel previously struck down the law, finding registry requirements for sex offenders moving to Indiana are unconstitutional.
CHICAGO (CN) — Indiana argued before the full Seventh Circuit on Thursday that state law does not place unfair registration requirements on sex offenders moving to the Hoosier State.
At issue is a provision of the Indiana Sex Offender Registry Act requiring people convicted of sex offenses who relocate to Indiana to register as sex offenders, even if the crime was committed before the law was passed. The plaintiffs are challenging its retroactive application.
The requirement creates a situation where an Indiana resident who was not required register as a sex offender would have to register if they moved out of state and then chose to move back because they had a past conviction.
In January, a split three-judge panel of the Seventh Circuit issued a ruling that upheld a lower court ruling and found that the registry requirement is unconstitutional because it creates two classes of citizens upon which it imposes a different set of rules.
“The other jurisdiction requirement of Indiana’s SORA imposes a duty to register and its attendant burdens upon a relocating citizen that it would not impose upon a lifelong Indiana resident. The privileges or immunities clause of the Fourteenth Amendment prohibits this differential treatment,” wrote U.S. Circuit Judge Ilana Rovner, a George H.W. Bush appointee, who authored the majority’s opinion.
However, the state disagreed with the split panel’s decision and asked for the case to be heard in front of the en banc Seventh Circuit.
During Thursday’s virtual hearing, Indiana Deputy Solicitor General Kian Hudson told the judges that the provision can be applied retroactively to certain individuals because the “marginal effects” are not punitive.
“If an offender has already been required to register by Indiana or any other state, Indiana’s sex offender registry law can be retroactively applied to him,” Hudson said. “This rule does not distinguish among offenders based on how long they have resided in Indiana, and for that reason it does not violate the federal constitution’s privileges or immunities clause.”
Rovner questioned Hudson on the state’s reasoning for the registration requirement, given that if all someone has done is move, nothing about their underlying convictions have changed.
“The reason that Indiana has adopted this provision, like many other states, is simply to ensure that if an offender has been required to register in one state that obligation will continue in Indiana,” Hudson answered.
Hudson said there would be some circumstances where an offender would no longer be required to register in a certain state, but upon moving to Indiana the law would require them to register once again.
Attorney Gavin Rose of the Indiana ACLU argued on behalf of lead plaintiff Brian Hope and five other individuals who claim they were adversely affected by Indiana’s registration requirements.
According to court documents, the six plaintiffs had all committed their crimes before the enactment of the law. Hope moved out of state before returning to Indiana, and the others were convicted in other states before moving to Indiana for the first time.
Upon moving to the Hoosier State, all six men were required to register as sex offenders under the law.
“Everyone agrees that if Brian Hope had remained in Indiana after his Indiana conviction, he would be relieved of registration requirements entirely,” Rose said. “Everyone agrees that if any of the other plaintiffs had moved to Indiana sooner or if they had moved from different states, they would be relieved of their registration requirements entirely.”
Rose went on to argue that the state is using its law to potentially force people to register as a sex offender for a lifetime, even if that was not part of their original sentence.
“It is using the hook of an offender’s out-of-state registration to require potentially lifelong registration in Indiana,” Rose said.
The court questioned Rose on why it would be unlawful for Indiana to enforce registration on a relocating individual, so that they do not attempt to skirt any conditions of their conviction.
Rose responded that courts have rejected such traveling arguments in other cases, and the facts of this case show that none of the plaintiffs relocated to Indiana to leave behind a sex offender registry requirement.
“I don’t think the state can on the one hand say this has nothing to do with your traveling, and on the other hand say the reason we want to impose registration requirements against you is because you are traveling, because you are trying to get away from your other state,” he said.
Rose also said Indiana is well within its rights to enforce another state’s conviction or requirements within its own borders, but it cannot go “well beyond” that judgment and enforce much longer requirements.
The full court’s decision is expected in the coming months.