IN- Court limits sex-offender residency law

7-4-2009 Indiana:

Retroactive penalty reversed in Indiana

INDIANAPOLIS — Convicted sex offenders who lived near schools or other places frequented by children before a state law restricting their residency was enacted in 2006 would not have to move under a ruling by the Indiana Supreme Court.

The court ruled Wednesday that the residency law violated the Indiana constitution by retroactively punishing Anthony W. Pollard, a Blackford County sex offender who died in December.

Pollard had owned his home in northeastern Indiana for about 10 years when he was convicted of a sex offense against a child in 1997. He was then charged in January 2007 with violating the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center.

Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.

The Court of Appeals and the state Supreme Court both upheld Forcum's decision.

The state Supreme Court decision said the residency law prevents a sex offender from living in his home — even if he bought it before the law took effect and even if a school or youth center moved within 1,000 feet of a home where he already lived.

"Although the statute does not affect ownership of property, it does affect one's freedom to live on one's own property," Justice Robert Rucker wrote. "A sex offender is subject to constant eviction because there is no way for him or her to find a permanent home in that there are no guarantees a school or youth program center will not open within 1,000 feet of any given location."

Bryan Corbin, a spokesman for the attorney general's office, which handled the appeal, said a staff attorney interpreted the ruling to apply only to offenders who were charged, convicted and sentenced before the residency law was enacted.

Attorneys for the state Supreme Court declined to comment because they are prohibited from interpreting the court's rulings.

The decision was the latest by the state Supreme Court to find that certain laws regarding state oversight of sex offenders violate the Indiana constitution's ban on laws punishing people for acts that were legal when they were committed.

In April, the court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.

In light of that ruling, the Pollard decision "was not surprising," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.

However, he said the ruling might be interpreted differently depending on the circumstances.

"For example, I would hope that the residency restriction law would apply to a person convicted of child molesting in 2005 and who then intentionally moved across the street from an elementary school in 2009," Johnson said in an e-mail.

Corbin said the attorney general's staff doubted the ruling would have a wide effect.

"We doubt that this will impact a significant number of cases," he said. ..Source.. by Charles Wilson