by Douglas Ankney
The U.S. Court of Appeals for the Seventh Circuit upheld U.S. District Court for the Southern District of Indiana’s opinion that found a provision of Indiana’s Sex Offender Registration Act (“SORA”) requiring registration of Plaintiffs who relocated to Indiana after SORA’s enactment violated their right to travel because the provision wouldn’t have required them to register if they had committed their offenses while residents of Indiana.
The Defendants asserted that each Plaintiff was required to register under SORA’s “substantial equivalency requirement” and the “other jurisdiction requirement.” The district court ruled that SORA violated several of Plaintiffs’ rights, including the right to travel, and that SORA’s requirements, as applied, could not stand. Defendants appealed. On appeal, the Defendants dropped their “substantial equivalency” grounds, relying only on the “other jurisdiction requirement.”
The Seventh Circuit observed that SORA was enacted in 1994. 1994 P.L. 11 § 7. It has been amended several times to remain in compliance with the federal Sex Offender Registration and Notification Act and, purportedly, to target those sex offenders most likely to recidivate. Each amendment expanded the number of offenses for which registration was required and/or expanded the duties required by registration. For example, the 1996 amendment required registration of offenders convicted in other states of offenses that would require registration if the offense had been committed in Indiana (“substantial equivalency requirement”). 1996 P.L. 32 § 2. This provision was made retroactive in 2001. 2001 P.L. 238 § 4. A 2006 amendment applied SORA’s requirements to any person who was required to register as a sex offender in any jurisdiction (“other jurisdiction requirement”). 2006 P.L. 140 § 5(b)(1).
Those amendments also made the burdens of registration more onerous: a registrant must report to the local sheriff in person at least once per year (unless the registrant was convicted of an offense that deemed him/her an SVP which requires a personal appearance every 90 days); the registrant must also personally appear before the sheriff of any county in which he or she works or attends school; homeless persons must personally appear every seven days; registrants at each appearance are photographed and must provide their physical descriptive information, birthdate, Social Security number, principal address, phone number, description and plate number of every vehicle they might drive, addresses of employers and schools they attend, email addresses and social media user names, and other information. If any of this information changes, the registrant must personally appear before a sheriff within 72 hours to report it. Registration requires several hours and often takes an entire day.
Per Wallace, any Indiana resident whose offense occurred prior to SORA is not required to register – provided that person remained a resident of Indiana. But under the “other jurisdiction requirement,” any person relocating to Indiana must register under SORA if their previous state required that person to register. This “other jurisdiction requirement” applies even if that person would not be required to register if he or she committed the offense in Indiana and hadn’t left. That’s the reason why the provision violates the Plaintiffs’ right to travel, according to the Court.
The Court concluded Indiana’s scheme under SORA places burdens on newer citizens and deprives them of the same rights and privileges of more longstanding citizens in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Consequently, SORA violates the Plaintiffs’ and other similarly situated Indiana residents’ right to travel.
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