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August 28, 2012

Court rules state sex offender registry unconstitutional

By Maureen Hayden CNHI Statehouse Bureau

INDIANAPOLIS — A federal court appeals ruling may push state legislators into finding a fix for some long-standing problems with Indiana’s sex and violent offender registry.

On Tuesday, a federal appeals court ruled the state’s registry was unconstitutional because it violated the due process rights of ex-offenders in the registry who have no way to correct mistaken information.

The registry is a publicly accessible database that contains personal information, including the photographs and addresses of sex and violent offenders who live in Indiana.

The case was brought by the American Civil Liberties Union of Indiana for David Lee Schepers, a 50-year-old Pike County man who was convicted of two sex offenses: rape in 1987 and two counts of child exploitation in 2006.

Schepers argued he was mistakenly classified as a “sexually violent predator” by the Indiana Department of Correction, which maintains the registry along with Indiana Sheriff’s Association. Schepers also argued that the registry erroneously lists two rape convictions for him, instead of one.

In its ruling, the appeals noted the DOC allows currently incarcerated sex offenders to challenge pending registry information, but does not give sex offenders who’d already been released from prison the same opportunity.  

“The policy provides no process whatsoever to an entire class of registrants — those who are not incarcerated,” and is therefore “constitutionally insufficient,” Circuit Judge Diane Wood wrote for a unanimous three-judge panel.

Ken Falk, legal director of the ACLU of Indiana, told the Reuters news service that he was “very happy” with Tuesday’s decision.

Falk said the state’s sex offender registry is plagued with errors. “There are examples of people who are being labeled as sex offenders who are not, and cannot get their names off the registry,” Falk said. “That is a stigma that follows you forever.”

In making its ruling Tuesday, the appeals court said the state would benefit by developing procedures to correct registry errors: “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 ruling said.

A legislative summer study committee has already started to take a look at the state’s sex offender registry, prompted in part by concerns that Indiana is out of compliance with a federal law that requires states to adopt strict standards for registering sex offenders and monitoring their whereabouts.

State Rep. Greg Steuerwald, R-Avon, an attorney who chairs the study committee, said Tuesday’s court ruling illustrates the challenges involved in maintaining a registry that provides accurate information to the public about the whereabouts of sex offenders.

“It sounds simple, but it’s extremely complicated,” Steuerwald said.

Another state Rep. Scott Reske, D-Pendleton, who coauthored legislation that created the registry, said the efficiency of the registry is decreased if county sheriff departments, which are responsible for its oversight, aren’t given the proper funds.

“The (Madison County) Sheriff’s Department is strapped. They haven’t been given the adequate financial resources to enforce or ensure its accuracy,” Reske said, who also serves as a reserve sheriff’s deputy.

The state’s sex offender registry has been plagued by issues of inaccuracy and other problems.

In 2009, the state Supreme Court ruled in favor of a sex offender who argued that he shouldn’t be required to register as a sex offender because he committed his crime before the registry was created in 1994.

That ruling applied to hundreds of other offenders whose names were added to the registry retroactively, but county sheriffs have interpreted the ruling differently. Some of those offenders’ names were removed, while others remain on the registry but are no longer required to report where they live. That means old addresses remain on the registry, with no indication if the offender still lives there — or if someone else now lives at that address.

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com.







 

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