CHICAGO (CN) — A divided Seventh Circuit Tuesday upheld an Indiana law that opponents claim is unfair to sex offenders who moved to Indiana.
Indiana’s “Sex Offender Registration Act," also known as SORA, contains a provision that says that a sex offender moving from another state into Indiana will be subject to registry requirements even if the requirement was imposed before the enactment of the law.
This is juxtaposed by the law’s treatment of sex offenders who either are or remained Indiana residents, as they are not required to register if they were under no obligation to do so prior to SORA’s passing.
This portion of the law spawned a challenge from six sex offenders who after moving to Indiana, where required to register solely based upon the fact that they were required to register in another state. All six offenders’ crimes were committed prior to the passing of SORA.
However, in a 7–3 ruling Tuesday, the Seventh Circuit found that the law did not violate the constitution or an offender’s right to travel.
“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 Trump appointee, wrote in the opinion for the majority. “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.”
The ruling, which was made available Tuesday, comes after a three-judge panel of the Seventh Circuit had originally struck down the law. The case was appealed to be heard before the entire court in an en banc hearing that took place in May.
In their ruling, the majority decided that SORA does not violate the plaintiffs’ right to travel, because the law itself does not levy a requirement of residency.
“To the contrary, every Supreme Court case involving a violation of the right to travel has featured a law that expressly imposes either a durational-residency requirement or a fixed-point residency restriction,” St. Eve wrote. “This case does not involve such a disparate treatment claim.”
The ruling added that the 14th Amendment does not stop a state from “incidentally burdening” travel to or from a state, and that it only provides that new residents of a state are offered the same privileges held by other citizens.
Using this interpretation of the law, the majority found that SORA treats all residents alike and did not violate the plaintiffs’ rights to travel.
The dissenting judges did not agree with this line of reasoning and argued that the law assigns different requirements not based upon the crime committed but on where the offender has resided.
“At bottom, what Indiana is doing is assigning differential obligations to its citizens based not on what they have done but where they have been,” wrote U.S. Circuit Judge Ilana Rovner, who authored the dissent. “It is relying on another state’s handling of a particular criminal history to determine how that individual will be treated in Indiana.”
Rovner, a George H.W. Bush appointee, added that the law uses another state’s rules to “circumscribe ... rights as an Indiana citizen.”
The dissenting judges argued the law impacts the plaintiffs’ right to travel by using their prior presence in another state to determine what rights they have as citizens of Indiana.
“This is not disparate impact. It is, overtly and unmistakably, disparate treatment,” Rovner wrote. “Although the Supreme Court has not yet confronted the particular fact pattern presented here, its teachings show us why Indiana’s registration scheme unconstitutionally burdens the plaintiffs’ right to travel.”
The dissent specifically points to one plaintiff named Brian Hope to illustrate their issues with the law. Unlike the other plaintiffs, Hope committed his sex offense while living in Indiana.
Afterwards, Hope left the Hoosier state and moved to California and then Texas, where he was required to register under a Texas law for his Indiana conviction. Upon Hope’s return to Indiana, SORA required him to register as a sex offender even though he was not required to do so while originally living in Indiana.
Regardless of Hope’s situation, the majority found that Indiana’s law was not unconstitutional, a decision that was championed by Indiana’s Attorney General Todd Rokita.
“Indiana’s sex offender registry is designed to protect children, families and all Hoosiers from those who have committed sex offenses,” Indiana Attorney General Rokita said. “The appeals court was right to reject claims that Indiana’s system is unfair or wrongly discriminatory.”
Despite the court’s finding in favor of the state, one claim must still be evalauted by the lower court. That claim centers around the idea of equal protection under the law. While the majority ruled that the law does not violate the plaintiffs’ right to travel, the law could still be viewed as creating two separate classes of offenders and treating them differently.
“The question is whether Indiana’s differential treatment on this basis is rationally related to a legitimate government purpose,” St. Eve wrote.
That portion of the case is headed back down to the lower court, as the district court did not evaluate the law using that framework. In sending the case back down, the majority offered advice to the district court in its ruling.
“In doing so, we stress that this review should be undertaken with care and that the district court should thoroughly develop the factual record on this score. Rational basis review favors the State but does not ensure an automatic win,” St. Eve wrote.
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