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Seventh Circuit revisits controversial Indiana sex offender law

Indiana urged a three-judge panel to overturn a federal judge’s ruling that barred prosecution of six men who didn't register as sex offenders after moving to the state.

CHICAGO (CN) — The Seventh Circuit heard arguments over Indiana's controversial Sex Offender Registration Act on Friday morning, and not for the first time.

Instead, it was just the latest skirmish in an ongoing legal struggle between the Indiana Department of Corrections, the District Court of Southern Indiana and the judges of the Seventh Circuit.

Indiana enacted the law known as SORA in 1994, requiring that those convicted of sex offenses in other states must also register as sex offenders in Indiana if they live or work there. It also contains a provision stating that convicted sex offenders moving to Indiana from another state must register even if their offense took place before the enactment of the law.

This contrasts with the law's treatment of those who committed pre-SORA sex offenses while living in Indiana, and those who continue to live there after their offense. Those in-state residents are not required to register if they weren't required to do so prior to SORA’s enactment or its subsequent revisions.

This divergent treatment between in-state and out-of-state offenders prompted a constitutional challenge to the law in October 2016, brought by six men placed on the SORA registry despite being convicted of sex offenses prior to SORA taking effect. The men claimed that SORA inhibited their constitutional right to travel across state lines, and violated the state's ex post facto clause and the federal equal protection clause - that is, punished them under a law that did not exist when they made their offenses, and more severely than longtime Indiana residents.

In a July 2019 ruling, U.S. District Judge Richard Young agreed. The Bill Clinton appointee barred the state from applying SORA penalties to the six men, which in turn prompted the Indiana Department of Corrections to appeal his decision to the Chicago-based Seventh Circuit.

Following a lengthy appeal process that concluded with an en banc hearing, the majority of the appellate court chose in August 2021 to overturn Young's ruling on the travel and ex post facto claims, and remand the case for further evaluation on the equal protection claim. It was a split 7-3 decision, with the majority finding that even longtime Hoosiers who were compelled to register under SORA would face the same consequences as the six plaintiffs.

“The plaintiffs argue that SORA violates their right to travel by treating them differently based on their length of residency in Indiana. We disagree,” U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, wrote in the 2021 majority opinion. “SORA may affect newer residents disproportionately, but it does not discriminate based on residency. Consequently, it does not violate the right to travel as the Supreme Court has articulated it.”

However, after the case returned to the district court, Young once again found for the plaintiffs. He ruled this past May that SORA violates the equal protection clause and barred the state from requiring the six men to register as sex offenders. Yet another appeal from the Indiana DOC followed.

On Friday morning, U.S. Circuit Judge Frank Easterbrook, a Ronald Reagan appointee, voiced frustration with the case as a whole, calling the now six-year-old legal procedure "annoying." He became particularly vexed when the accused sex offenders' counsel Gavin Rose questioned the Indiana Supreme Court's own opinion on the matter. In 2009, the state high court found in the case Jensen v. State that SORA may or may not violate Indiana's ex post facto clause depending on whether an offender had preexisting sex offenses when the state compelled them to register. Those without preexisting offenses had a stronger claim to ex post facto violations, the Indiana Supreme Court ruled, than those with convictions in other states.

"We're not talking about a prospective versus a retroactive distinction," said Rose, an attorney with the Indiana ACLU. "We're talking about someone who committed the exact same offense on the exact same day, even in the exact same place, may have received the exact same penalty, may even have begun interacting with Indiana on the exact same date... and only one of those persons is subject [to SORA]."

The district court reached a similar conclusion in May, calling the state's application of SORA "irrational." Young noted that one of the plaintiffs had committed a sex offense in Indiana a year before SORA was enacted and continued living in the state until a 2004 move to Texas, but was not required to register for life under the state law until he had moved back to Indiana in 2013. Even that, the judge noted, was only because Texas put him on the sex offender registry due to his prior Indiana conviction.

Both Rose's and Young's opinions seemed to get under the skin of Easterbrook, who was among the majority opinion in the appellate court's 2021 ruling.

"What the Supreme Court of Indiana is trying to do is figure out... how to define who's being punished. And they come up with a definition... different from the definition you would obviously prefer," Easterbrook said to Rose. "But isn't a stretch to say that the definition the Supreme Court of Indiana came up with is positively irrational?"

No, answered Rose after some prodding.

"I do believe that what the Indiana Supreme Court did was create an equal protection violation," the attorney said.

Easterbrook responded that if Rose - and Young - were correct, then the appellate court must act accordingly. But he voiced dread at the thought of bringing the state high court into what is already such a drawn out legal fight.

"If we hold that the Supreme Court of Indiana acted irrationally, we force the Supreme Court to grant certiorari. There'd be no way around that," the judge said.

Easterbrook was joined on the three-judge appellate panel by St. Eve and fellow Donald Trump appointee U.S. Circuit Judge Thomas Kirsch, both of whom remained mostly silent throughout Friday's hearing. The panel took the case under advisement but did not say when they would deliver their ruling.

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