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August 20, 2012

Sex offender registry falls short in Indiana

State not in compliance with federal law

Maureen Hayden CNHI

INDIANAPOLIS — Indiana — along with 34 other states — is out of compliance with a federal law that requires states to adopt strict standards for registering sex offenders and monitoring their whereabouts.

The federal law was passed in 2006, in response to a series of heinous crimes committed by fugitive sex offenders, including Joseph Edward Duncan III, a serial child molester on the federal death row in Terre Haute for the 2005 kidnap, torture and killing of a 9-year-old boy.

The law was supposed to launch an aggressive 50-state effort to keep better track of offenders such as Duncan, who was a registered sex offender in one state, while out on bond on a child molesting charge in another state, when he was committing sex crimes and murder in a third state.

But that effort has been slowed down by questions about the costs of its implementation, concerns that the federal law trumps state policies and practices already in place, and fears that states will face an avalanche of lawsuits if they follow the federal rules.

An Indiana legislative study committee is taking up the issue this summer, in part because of questions about the accuracy the state’s Sex and Violent Offender Registry, which contains more than 9,000 sex offenders. It’s on the agenda for the Aug. 23 meeting of the Criminal Law and Sentencing Policy Study Committee.

“There are some policy issues involved that only the legislature can address,” said Steve Luce, executive director of the Indiana Sheriff’s Association, which manages the registry’s public website with support from the Indiana Department of Corrections.

Late last year, Indiana — along with many states — was penalized by the U.S. Department of Justice for its failure to “substantially  implement” the federal law, known as the Sex Offender Registration and Notification Act, or SORNA.

The penalty was the loss of about $165,000 in federal funds for state law enforcement. Indiana got the money back this year, but it can be used only to move toward implementing SORNA. States can be penalized for every year they don’t meet SORNA standards.

SORNA is part of the 2006 Adam Walsh Child Protection and Safety Act, which made it a federal crime for a registered sex offender to move to another state without re-registering with that new home state. The law also set out uniform standards for state sex offender registries — who goes on them, how long they stay on, and when, if ever, they come off.

Indiana Deputy Attorney General Tom Quigley said Indiana meets some of SORNA’s standards, but not all. Quigley said SORNA is more stringent that most state sex offender registry laws, including Indiana’s.

To comply with SORNA, Indiana would need to broaden the definition of sex offenses, raise the minimum number of years that a sex offender would have to stay on the state’s registry (from 10 years to 15), and give up some discretion in how it handles juvenile sex offenders.

Those are changes, he said, that only legislators can make because they require rewriting state law.

State Rep. Ralph Foley, the Republican chairman of the Criminal Code Evaluation Commission who’s retiring from the legislature this year, said the Indiana General Assembly may resist changing how the state deals with sex offenders just to meet a federal mandate.

“It’s annoying when Congress prescribes a one-size-fits-all solution that every state must follow. We (the legislature) don’t have any trouble doing that to local government, but have a lot of trouble taking that from Congress.”

Complying with SORNA would likely mean more work for Indiana’s 92 county sheriffs, charged with monitoring the sex offenders living in their communities. SORNA increases the amount of personal information that the sheriffs have to collect and verify. Under SORNA, sex offenders deemed especially dangerous would be required to renew that registration information, in person, four times a year for the rest of their lives.

Brent Myers, director of registration and victim services for the Indiana Department of Corrections, said Indiana is already doing much of what of SORNA requires in tracking sex offenders, including those who move here from out of state.

But the issue of uniformity in registry standards — including which sex offenders get put on registries and how closely they’re monitored — remains unsolved.

“The restrictions (on sex offenders) vary from state to state,” Myers said. “I get several calls a week from offenders or their family members asking if our registry requirements are less restrictive than other states.”

Complying with SORNA may trigger a new round of litigation, mirroring some of the past legal challenges to Indiana’s sex offender registry law. They center on the requirement that adults whose crimes were committed before the 1994 state law was passed were later required to register as sex offenders. That set off a wave of challenges to the law from those offenders, who argued it was unconstitutional for the state to apply the law retroactively.

It also led to the current problems with the Indiana Sex and Violent Offender Registry. Three years ago, the Indiana Supreme Court ruled in favor of a sex offender, Richard P. Wallace, convicted in 1989,  who argued that he shouldn’t be required to register for an offense committed before the statewide registry was created.

That ruling applied to hundreds of other offenders whose names were added to the registry retroactively. But the ruling also has been interpreted differently across the state.

Some county sheriffs cleared their registries of offenders who fell under the Wallace ruling. Others decided those offenders would need to get a court order to be removed. The state Department of Corrections thinks they need to stay on as well.

But even those so-called Wallace offenders that remain on the registry are no longer required to report where they live. Their old addresses remain on the registry. There’s no indication if they still live there — or if someone else now lives at that address.

Both Myers and Luce agree that the state legislature will need to get more involved in decisions about how sex offenders in Indiana are tracked and monitored.

“It’s complicated and there are no easy answers,” Myers said.

“Both law enforcement and the public rely on the registry to be accurate.”

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com.

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