Judges, state duel over sex registry

7-13-2010 Indiana:

Court rulings cloud who’s being tracked

FORT WAYNE – Theothis Allison, 44, served time in the mid-1980s for a sex crime. Since his release from prison in 1986, he has married, had children and stayed out of trouble.

And after the Indiana Supreme Court ruled that Richard P. Wallace, who had a 1989 conviction for child molesting, no longer had to register with the state as a sex offender, Allison asked Allen Superior Judge Fran Gull to take him off the sex offender registry.

In a handwritten letter filed in late April, Allison made his request, which Gull granted about 10 days later, according to court documents.

But since then, the Indiana attorney general’s office has filed motions asking to intervene in the case. In the motion, the attorney general has requested that Gull change her order for a number of reasons – taking issue with Allison’s letter, saying Gull lacked jurisdiction in the case and saying that Allison may be required to register under the federal Sex Offender Registration and Notification Act, which Indiana does not yet follow.

Gull has no intention of changing her order. She staunchly refuses to muddy the waters for sex offenders and those who handle the sex offender registry by dealing with the federal question.

But other judges are handling similar motions differently. Allen Superior Judges John Surbeck and Ken Scheibenberger have been inclined to grant the attorney general’s requests.

But the judges agree that the attorney general’s office’s insistence on intervening in so many of these cases continues to cause headaches and confusion for all involved.

Wallace removals

Last year, the Indiana Supreme Court issued what is now frequently just referred to as “the Wallace ruling,” which allowed sex offenders who committed their crimes before the creation of the registry to petition the courts to be removed from the list.

Indiana created its sex offender registry law in 1994, with the passage of the Sex Offender Registration Act, known as Zachary’s Law. In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. The registry includes the names, addresses and photographs of those convicted of sex crimes and some violent crimes in each community.

And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender. Wallace was convicted of not registering, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an after-the-fact punishment.

The Supreme Court eventually agreed with him, finding that “the changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed,” according to the ruling.

Since the ruling, local courts have been processing requests from sex offenders asking to have their names removed because of the dates of their conviction.

In an effort to streamline the process this spring, the legislature required sex offenders to begin making such requests in the counties in which they reside, not where their conviction occurred.

But along with each sex offender’s request, the attorney general’s office has also filed paperwork, asking that the judges construct their orders or instruct the sex offenders that they may be required to register under the federal law. So far, nearly 70 motions have been filed with various county courts, said Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller.

The paperwork is maddening to the judges, who aren’t sure what the purpose of the request is, other than to confuse.

Federal rules

In 2006, the federal government enacted the Adam Walsh Act, officially known as the Sex Offender Registration and Notification Act, and unofficially by its acronym: SORNA. The law was an attempt to combine all the sex offender registries around the country.

Indiana is one of a handful of states not in compliance with the act, said Brent Myers, the director of registration and victim services with the Indiana Department of Correction.

The state has recently filed an extension request, asking it be allowed until June 2011 to comply with the requirements of the law, Myers said.

A state out of compliance misses out on federal grants. When in compliance, sex offenders in that state who fail to register can be charged with a federal crime, Myers said.

And the state attorney general’s office wants to make sure that if Indiana sex offenders are some day required to register, they can still be forced to do so, in spite of an order by a state court judge.

“(The attorney general) wanted to put something there in writing so there is no dispute later,” spokesman Corbin said.

There was a fear that if federal prosecutors chose to charge an offender with a federal failure to register, then the sex offender could come back and say that he or she was not required to register under state law.

“This will prevent them from doing that. We’re foreclosing a sex offender from being able to use that as an issue,” Corbin said. “This keeps them from using it as an escape hatch.”

Mixed results

While he is still waiting to see his name removed from the registry, Allison doesn’t worry much about the federal law.

“I don’t know nothing about the federal requirements,” he said. “I just know I’m not supposed to be on (the Indiana sex offender registry).”

Myers is not sure whether those released from their registry requirements will still be required to register under SORNA if or when the time comes, or whether they’re required to register now if they cross state lines.

“(The Wallace decision) does not have an impact outside of Indiana,” Myers said.

Surbeck and Scheibenberger are conducting hearings on every request from the attorney general’s office – and so far, both are inclined to grant the office’s request.

“I suppose it is necessary,” Scheibenberger said. “But it would have been nice had the attorney general let us know he was going to take that position.”

During a hearing Friday afternoon, Surbeck told the deputy attorney general handling the case that he felt the state’s request asked him to overstep his boundaries.

“I’ve always been taught that I have no jurisdiction over federal matters,” Surbeck said. “I don’t see anything wrong with my order.”

Gull, so far, refuses to change her orders to reflect any concerns regarding the federal law and she’s not holding hearings.

Her orders are clear in their application to state law, and Gull said, her position is that there is no federal requirement under Indiana law at this time.

“So what do I tell people?” she asks. “My orders are perfectly legal and the attorney general can challenge them if he wants to.

“It is not my job to tell offenders what federal law is or isn’t,” Gull said. “It seems we are splitting hairs and spending a lot of time and talent, and paper on all of this.” ..Source.. Rebecca S. Green | The Journal Gazette