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Indiana Sex Offender List Needs to Work on Errors

CHICAGO (CN) - The lack of opportunity to correct errors in Indiana's registry of sex offenders and violent criminals constitutes a civil rights violation, the 7th Circuit ruled.

The Indiana Sex and Violent Offender Registry, founded in 1994, lists individuals who have been convicted of 21 different offenses, including sex crimes, murder, voluntary manslaughter and kidnapping. It lists an estimated 24,000 people.

Entries, which are viewable online, include the offender's recent photo, home address, demographic information and type of offense. Individuals listed must report to the local sheriff's office regularly to update information, carry a valid identification card at all times and cannot change their names.

The registry also contains a special category for "sexually violent predators" who cannot live within 1,000 feet of a school or park. These individuals must report to law enforcement if they will be absent from home for more than 72 hours.

David Schepers, convicted of two counts of child exploitation in 2006, was incorrectly listed as a sexually violent predator. After several unsuccessful attempts to have his offense type changed to "offender against children," Schepers filed suit. He sought to represent a class of registrants whose listings contained errors.

In response to the complaint, the Illinois Department of Corrections (DOC) created an appeals process for the registry. The policy stipulated that all inmates facing registry placement would receive prior notice and a proof of the information to be posted. Inmates would have 20 days to appeal any errors to the Division of Registration and Victim Services, and there would be no option for a hearing or further appeal.

Finding that the new policy adequately addressed any due process concerns, U.S. District Judge Tanya Walton Pratt dismissed Schepers' suit.

But cited policy flaws in his appeal to the 7th Circuit. Most significantly, the policy offers no recourse to any registrant who has already been released from prison or was never incarcerated.

The 7th Circuit agreed that the new policy does not go far enough.

"The Indiana statute deprives members of the class of a variety of rights and privileges held by ordinary Indiana citizens, in a manner closely analogous to the deprivations imposed on parolees or persons on supervisory release," Judge Diane Wood wrote for a three-member panel.

"Although any kind of placement on the sex offender registry is stigmatizing ... erroneous labeling as a sexually violent predator is 'further stigmatizing to [one's] reputation,'" Wood added.

Such stigmatization, coupled with the legal restrictions applicable to registrants wrongly classified as sexually violent predators, gives rise to a due process right.

Failing to provide recourse to registrants who are not incarcerated represents a major hole in the new policy, the decision states.

Under the proposed system, "even for people who move from an Indiana prison onto the registry and thus obtain whatever benefits DOC's procedures offer, there is no guarantee that later mistakes will not be made (perhaps, for instance, when someone moves from one town to another, or a sheriff's department changes computer systems)," Wood added.

It is additionally problematic to have a "deemed denied" policy that automatically rejects all appeals after 30 days of departmental inaction.

"An offender could mail his appeal to the DOC appeal authority, only to have it sit on a desk unread," Wood wrote. "An appeal process must at the very least provide for a real opportunity for registrants to bring errors to the DOC's attention and, if the arguments have merit, to have the errors fixed."

It does not satisfy due process to make registrants challenge their entries in court or risk noncompliance with registry requirements, according to the decision.

The court declined to suggest details of what a constitutional registration system would look like.

"We conclude with the observation that providing additional procedures to correct registry errors may wind up benefitting the state as well as registrants," Wood wrote. "Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public."

The American Civil Liberties Union represented Schepers.

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