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Editor’s note: This article has been updated with comments from Indiana Attorney General Todd Rokita.
Requiring sex offenders who are already subject to registration elsewhere to also register in Indiana rationally promotes public safety, the 7th Circuit Court of Appeals has ruled in reversing a district court’s judgment. This is the second reversal in the case.
The plaintiffs in the case are Indiana residents who committed sex offenses either before the Indiana Sex Offender Registration Act existed or before it covered their specific offenses.
Their registration obligations vary depending on their offenses, but they all must register under SORA at least once annually. They also must comply with various restrictions — such as staying off school property — and notify law enforcement before leaving their residences for more than 72 hours.
SORA applies to sex offenders who committed crimes before its enactment in 1994. But the Indiana Supreme Court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), limited SORA’s retroactive application under the Indiana Constitution’s ex post facto clause.
As a result, Indiana ordinarily cannot require pre-SORA offenders to register because doing so would be punitive and strip offenders of their right to fair notice.
However, the 7th Circuit opinion says the plaintiffs’ situations in the instant case are different. Even though they are all pre-SORA offenders, they each have a registration obligation in another jurisdiction because they either moved to Indiana from another state or left Indiana for some period before returning.
The Indiana Supreme Court has determined that requiring the registration of individuals who already have a separate registration obligation in another state does not violate Indiana’s ex post facto clause. The court has also concluded that SORA’s other-jurisdiction provision “undoubtedly” advances a legitimate and nonpunitive interest by alerting and protecting the community from offenders with a “frighteningly high risk of recidivism.”
The plaintiffs filed a lawsuit alleging that SORA violates the federal ex post facto clause, their right to travel under the 14th Amendment’s privileges or immunities clause and their right to equal treatment under the 14th Amendment’s equal protection clause.
The Indiana Southern District Court granted summary judgment to the plaintiffs on all claims and, on appeal, the 7th Circuit affirmed in Hope v. Comm’r of Ind. Dep’t of Corr., 954 F.3d 532 (7th Cir. 2021) (vacated).
But after hearing the case en banc, the full 7th Circuit reversed, holding that SORA does not violate either the right to travel or the federal ex post facto clause. The court also reversed the district court’s grant of summary judgment on the equal protection claim, holding that the other-jurisdiction provision does not trigger heightened scrutiny, and remanded for the district court to determine in the first instance whether SORA passes rational basis review.
On remand, the district court concluded the answer was no, ruling the provision is not rationally related to any legitimate government interest. Thus, it granted summary judgment for the plaintiffs on their equal protection claim.
But the 7th Circuit reversed again, this time ruling that although the Indiana Constitution has restraints that have resulted in an “imperfect” classification system, it is not irrational for Indiana to require as many sex offenders to register as the Indiana Constitution permits.
“Even if a risk posed by two groups of offenders is identical, a state may have a rational reason for treating them differently,” the opinion states. “… Requiring offenders who are already subject to the burdens of registration elsewhere rationally promotes public safety through the maintenance of a sex-offender registry that is as complete as the Indiana Constitution permits.”
Judge Thomas Kirsch wrote the opinion. Judges Frank Easterbrook and St. Eve concurred.
The case is Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al., 22-2150.
Indiana Attorney General Todd Rokita celebrated the reversal, releasing a statement saying, “We’re talking about a law that not only is clearly constitutional but also vital to public safety. Few priorities are more pressing than protecting women, children and all Hoosiers from sex predators. The court has affirmed the validity of a law rooted in basic common sense and prudent policymaking.”
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