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Can a state order a new resident onto the sex offender registry?

| May 26, 2021 | Sex Crimes

It’s a relatively common requirement. If you are a registered sex offender in one state and you move to another, the new state will often require you to comply with its registry. However, the state of Indiana went a step further. It required new residents to register as sex offenders if they had been convicted of qualifying sex offenses even when those offenses occurred before the sex offender registry law was passed.

There are two different constitutional rights at issue in the case challenging this requirement. The first is that the U.S. Constitution prohibits “ex post facto” laws. That means that the government can’t pass a criminal law and then punish people who factually violated the law before it was passed. The government can’t retroactively decide someone’s behavior was prohibited.

The second constitutional issue involves the “privileges and immunities” clause of the Fourteenth Amendment. This clause prevents states from enforcing any law which has different effects for that state’s residents vs. non-residents.

The six plaintiffs challenging the law argued that they should not be retroactively added to the sex offender registry if their crimes were committed before the registry law was passed. They also point to a situation where an Indiana resident who was not required to be on the registry might be required to register later simply because they had moved out of and then back to Indiana.

This actually happened to one of the plaintiffs. The other five had committed their crimes before Indiana passed its sex offender registry law but were nevertheless required to register once they moved to Indiana.

7th Circuit finds the rule unconstitutional

In January, a three-judge panel of the Seventh Circuit Court of Appeals (which covers both Indiana and Wisconsin) upheld a lower court’s ruling that Indiana’s registry requirement was unconstitutional when applied to people who had committed sex crimes before the law was passed.

However, the ruling was split, meaning that only two of the three judges agreed. Indiana then asked the entire Seventh Circuit, which is made up of 11 judges, to rehear the case.

During a hearing before the full Seventh Circuit, Indiana argued that the law is not criminal in nature and thus cannot be considered an “ex post facto” law. This is because being listed on the sex offender registry is not considered punishment.

The plaintiffs dispute that characterization, arguing that an order to register is part of the punishment for the crimes they committed.

Indiana’s law seems to attempt to punish sex offenders retroactively and differently depending on when they moved to Indiana. It cannot be allowed to stand.

The full Seventh Circuit is expected to rule on the case in the coming months.

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