Justices rule on residency-restriction law

The Indiana Supreme Court says the three-year-old state law restricting sex offenders from living within 1,000 feet of where children congregate constitutes an unconstitutional form of retroactive punishment. However, the sex offender who won the appeal has been dead since September 2008.

Rather than procedurally dismissing the case as moot, justices granted transfer with an opinion in State of Indiana v. Anthony W. Pollard,  No. 05S02-0906-CR-305, a Blackford County case that has been sitting motionless on the justices' docket since attorneys asked for transfer in August 2008, about a month before Pollard died of cancer.

More than a year ago, the Indiana Court of Appeals affirmed the ruling of Blackford Superior Judge John W. Forcum, who'd dismissed a 2007 felony sex offender residency charge against Pollard that related to his sex-offense conviction in 1997. At the time of the conviction, Pollard was living with his wife at a home within 1,000 feet of a school for about 10 years. State law changed in 2006, however, and Indiana Code section 35-42-4-11 made it a crime to live within that distance from any school, park, youth center, or place where children congregate.

After the judge's dismissal of the residency charge, the state argued on appeal that the trial court erred when it found the state statute, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. The Court of Appeals in May 2008 affirmed that ruling, and now the justices have agreed with that decision but for different reasons.

Relying on its most recent decisions from earlier this year in another sex-offender restriction case, Wallace v. State, 905 N.E. 2d 371, 378, (Ind. 2009), the justices applied an "intent-effects" test to evaluate ex post facto claims under the Indiana Constitution. The statute is ambiguous about whether the state legislature intended to impose punishment, but several aspects of the law are considered punitive by U.S. Supreme Court precedent – specifically, five of the seven factors are punitive when applied to Pollard's case, the justices determined.

While all five justices agreed in result, Justice Theodore Boehm wrote a concurring opinion that said he disagreed with his colleagues on only one point: that a third test factor, involving the absence of a scienter element for certain forms of child molesting, is not significant in evaluating the punitive character of this statute.