Equal Protection Claim Sex Offender Registration Act.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Brian Hope, et al., v. Commissioner of Indiana Department of Correction, et al.,

Case No.: 19-2523

Officials: ST. EVE, Circuit Judge.

Focus: Equal Protection Claim Sex Offender Registration Act

Indiana's Sex Offender Registration Act ("SORA") imposes registration requirements and restrictions on sex offenders who reside, work, or study in the State. Ind. Code 11-8-8-1 et seq. By virtue of the State supreme court's construction of the Indiana Constitution, Indiana's Ex Post Facto Clause prohibits retroactive application of SORA to offenders convicted before its enactment unless the marginal effects of doing so would not be punitive. Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384 (Ind. 2009). If an offender was under no registration requirement prior to SORA's passage, imposing a registration requirement in the first instance is impermissibly punitive. Wallace, 905 N.E.2d at 371. The Indiana Supreme Court has held, however, that if another state previously subjected a preSORA offender to a registration requirement, requiring him to register in Indiana is not punitive. See, e.g., Tyson v. State, 51 N.E.3d 88 (Ind. 2016). Indiana caselaw thus has the peculiar effect of permitting the State to treat similarly situated offenders differently based solely on whether an offender had an out-of-state registration obligation. That feature underlies the present appeal.

The plaintiffs, six sex offenders residing in Indiana, were convicted prior to SORA's passage. Each of them had to register in another state. After moving to Indiana, the State required them to register under SORA. Absent their out-of-state registration obligations, Indiana's Constitution would prohibit SORA's application to them. Plaintiffs challenge the constitutionality of SORA on three...