Wallace v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kathleen M. Sweeney Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Zachary J. Stock

Deputy Attorney General

Indianapolis, Indiana

FILED

______________________________________________________________________________

Apr 30 2009, 2:26 pm

In the CLERK

of the supreme court,

court of appeals and

tax court

Indiana Supreme Court

_________________________________

No. 49S02-0803-CR-138

RICHARD P. WALLACE,

Appellant (Plaintiff below),

v.

STATE OF INDIANA,

Appellee (Defendant below).

_________________________________

Appeal from the Marion Superior Court,

Criminal Division, No. 49F15-0401-FD-1458

The Honorable Lisa Borges, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0706-CR-498

_________________________________

April 30, 2009

Rucker, Justice.

Summary

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”)

require defendants convicted of sex and certain other offenses to register with local law

enforcement agencies and to disclose detailed personal information, some of which is not

otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment

forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to

a defendant who committed his offense before the statutes were enacted. We conclude that as

applied in this case the Act violates the constitutional provision.

Facts and Procedural History

In 1988, Richard Wallace was charged with one count of child molesting as a Class B

felony and one count of child molesting as a Class C felony. Under terms of a plea agreement

Wallace pleaded guilty to the Class C felony count on February 15, 1989. The trial court

imposed a five-year suspended sentence with various conditions of probation. Wallace

completed probation in 1992. Two years later the Indiana Legislature passed the Act that,

among other things, required probationers and parolees convicted of child molesting on or after

June 30, 1994 to register as sex offenders. In 2001 the Act was amended to require all offenders

convicted of certain sex offenses to register as sex offenders regardless of conviction date.

In 2003, Wallace‟s ex-wife notified authorities that Wallace had been convicted of a sex

offense but had never registered as an offender. The Sex Offender Registration Coordinator for

the Indianapolis Police Department investigated the matter, concluded Wallace was required to

register, and sent Wallace a letter to that effect. Wallace responded to the Coordinator on

December 31, 2003, and insisted that he did not have to register as a sex offender because the

plea agreement executed in 1989 did not require him to do so.

After Wallace did not register, he was charged with failing to register as a sex offender as

a Class D felony. Wallace subsequently filed a motion to dismiss, which the trial court denied.

Following a trial by jury on January 31, 2007, he was found guilty as charged. The trial court

2

sentenced Wallace to 545 days of incarceration, all suspended to probation. He appealed raising

three claims: (1) the plea agreement foreclosed the State‟s ability to prosecute him for failing to

register as a sex offender, (2) the evidence was insufficient to support the conviction, and (3) the

Act violates the ex post facto provisions of both the Indiana and federal Constitutions. The

Court of Appeals affirmed the judgment of the trial court. Wallace v. State, 878 N.E.2d 1269,

1277 (Ind. Ct. App. 2008).

Having previously granted transfer we now reverse the judgment of the trial court on

Wallace‟s ex post facto claim. In all other respects we summarily affirm the opinion of the Court

of Appeals.

Background

I. Advent of Sex Offender Registry Statutes

The State of New Jersey gained national recognition after enacting a sex offender

registration statute that has become known as “Megan‟s Law,” named after a child abducted,

sexually assaulted, and murdered by a known child molester who had moved across the street

from the child‟s family without their knowledge. The constitutionality of the New Jersey

legislation was upheld by the New Jersey Supreme Court in Doe v. Poritz, 662 A.2d 367 (N.J.

1995).

In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and Sexually

Violent Offenders Registration Act to encourage individual states to adopt sex offender

registration statutes. Under the Wetterling Act, if a state did not adopt some version of

Megan‟s Law with certain provisions, Congress could withhold ten percent of certain grants the

state would ordinarily receive for a variety of crime prevention and interdiction programs. See

42 U.S.C. § 14071(f) (1995) (current version at 42 U.S.C. § 14071(g)).

All fifty states and the District of Columbia responded in kind which generated an

explosion of litigation challenging the laws under various constitutional provisions including

3

federal and state ex post facto clauses1 and inspired vigorous academic debate.2 The United

States Supreme Court has also weighed in on the subject declaring in 2003 that the registration

requirements imposed by the Alaska Sex Offender Registration Act were non-punitive and

created a civil regime; therefore, the registration requirement could be applied retroactively

without violating the Ex Post Facto Clause of the United States Constitution. Smith v. Doe, 538

U.S. 84, 105-06 (2003).3

II. The Indiana Response

A. Initial Sex Offender Registration Act

The Indiana General Assembly adopted its first version of Megan‟s Law in July 1994.

Referred to as “Zachary‟s Law,”4 the Act required persons convicted of certain sex crimes to

register as “sex offender[s].” Act of March 2, 1994, Pub.L. No. 11-1994, § 7 (codified as

Indiana Code §§ 5-2-12-1 – 5-2-12-13) (current version at Indiana Code §§ 11-8-8-1 – 11-8-8-

1

See, e.g., E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997); Fushek v. State, 183 P.3d 536 (Ariz. 2008);

Kellar v. Fayetteville Police Dep‟t, 5 S.W.3d 402 (Ark. 1999); People v. Castellanos, 982 P.2d 211, 215

(Cal. 1999); State v. Seering, 701 N.W.2d 655 (Iowa 2005); State v. Myers, 923 P.2d 1024 (Kan. 1996);

Doe v. District Attorney, 932 A.2d 552 (Me. 2007); Garrison v. State, 950 So.2d 990 (Miss. 2006); State

v. Ferguson, 896 N.E.2d 110 (Ohio 2008); Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007).

2

See, e.g., Michele L. Earl-Hubbard, Comment, The Child Sex Offender Registration Laws: The

Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the

1990s, 90 Nw. U. L. Rev. 788 (1996); G. Scott Rafshoon, Comment, Community Notification of Sex

Offenders: Issues of Punishment, Privacy, and Due Process, 44 Emory L.J. 1633 (1995); Lori N. Sabin,

Note, Doe v. Poritz: A Constitutional Yield to an Angry Society, 32 Cal. W. L. Rev. 331 (1996); Simeon

Schopf, “Megan’s Law”: Community Notification and the Constitution, 29 Colum. J.L. & Soc. Probs.

117 (1995).

3

Doe thereafter returned to state court and challenged the Act on state law grounds. The Alaska Supreme

Court concluded the Act violated the Ex Post Facto Clause of the Alaska Constitution as applied to Doe.

See Doe v. State, 189 P.3d 999, 1019 (Alaska 2008) (adopting the analytical approach used by the United

States Supreme Court to evaluate ex post facto claims, but declaring, “Our interpretation of a clause in the

Alaska Constitution is not limited by the Supreme Court‟s interpretation of the corresponding federal

clause,” Doe, 189 P.3d at 1006).

4

Zachary‟s Law was passed in honor of Zachary Snider, a 10-year-old boy from Cloverdale, Indiana who

was molested and murdered by a previously convicted child molester. Overview of Zachary‟s Law,

http://www.allencountysheriff.org/sexoffender/zachary.html (last visited April 23, 2009). See also

Stevens v. State, 691 N.E.2d 412 (Ind. 1997) (upholding Stevens‟ conviction for the murder of Zachary).

4

22). The Act contained both registration and notification provisions, i.e., sex offenders were

required to take affirmative steps to notify law enforcement authorities of their whereabouts, and

that information was then disseminated to the public. In 1994, eight crimes triggered status as a

sex offender and the statute applied only to offenders who resided or intended to reside in

Indiana. Ind. Code §§ 5-2-12-4, -5 (1994). Registration involved providing limited information

to law enforcement agencies where the offender resided and updating that information if the

offender moved to a new municipality or county in Indiana. Id. at -8. Notification involved the

distribution of a paper registry, updated twice per year and sent automatically to a few select

agencies. Id. at -11. Other entities could receive the registry on request, but the home addresses

of the registrants were withheld. Id.

B. Subsequent Amendments to the Act

Since its inception in 1994 the Act has been amended several times. What began as a

measure to give communities notification necessary to protect children from sex offenders, the

Act has expanded in both breadth and scope. We summarize below the amendments most

relevant to the case before us.

The number of sex offenses that trigger the registration requirement has increased from

eight to twenty-one, and has expanded to include murder, voluntary manslaughter, and under

certain circumstances kidnapping and criminal confinement. Ind. Code §§ 11-8-8-5, -7 (Supp.

2008). The length of time in which an offender has a duty to register has also increased.

Originally the duty to register was prospective only, and terminated when the offender was no

longer on probation or discharged from parole. Ind. Code § 5-2-12-13 (1994). But in 1995 the

duty to register expanded to ten years after the date the offender was released from prison, placed

on parole, or placed on probation, whichever occurred last. Ind. Code § 5-2-12-13 (1995).

Aside from the registration component of the Act, over the years the notification

component of the Act also expanded. Under a 1998 amendment, once an offender is discharged

from a correctional facility, the facility is required to provide the local law enforcement

authorities with, among other things, the offender‟s fingerprints, photograph, address where the

5

offender is expected to live, complete criminal history, and any information concerning the

offender‟s treatment of mental disorders. Ind. Code § 5-2-12-7 (1998). The 2001 amendment

also requires information concerning any address at which the offender spends more than seven

days, and the name and address of the offender‟s employment or school attendance. Ind. Code §

5-2-12-5 (2002) (amended January 1, 2003) (current version at I.C. § 11-8-8-7). A 2008

amendment requires the disclosure of any electronic mail address, instant messaging username,

electronic chat room username, or social networking web site username that a sex offender uses

or intends to use. Ind. Code § 11-8-8-8 (Supp. 2008).

Verification of the disclosed information has also become more expansive. A 1998

amendment to the Act requires local law enforcement to verify the offender‟s current residence

by mailing a form to the offender at least once per year, which the offender must return either by

mail or in person. Ind. Code § 5-2-12-8.5 (1998). In 2006, the Act was amended to allow local

law enforcement officers to visit personally the offender‟s address at least once per year. Ind.

Code § 11-8-8-13 (2006). Under a 2008 amendment, if the offender uses an electronic mail

address, instant messaging username, electronic chat room username, or social networking web

site, the offender must sign a consent form authorizing searches of the offender‟s personal

computer or device with Internet capacity at any time and installation of hardware and software

to monitor the offender‟s Internet usage on any personal computer or device with Internet

capacity. Ind. Code § 11-8-8-8 (2008).

A 1999 amendment made registry information accessible through the Internet. Ind. Code

§ 5-2-12-11 (1999). Today, an offender‟s home address, work address, and links to maps of their

locations are also available.5 Black letters flash “FAILED TO REGISTER” under the

photographs of offenders who have failed to register. Id. Red letters flash “SEX PREDATOR”

under the photographs of offenders whose crimes qualify them as sexually violent predators.6 Id.

Also available is a search-by-name feature that allows web surfers in any part of the world to

5

See Indiana Sheriffs‟ Sex and Violent Offender Registry, http://www.insor.org (last visited April 23,

2009).

6

“Sexually violent predator” is defined as “a person who suffers from a mental abnormality or

personality disorder that makes the individual likely to repeatedly [commit sex offenses].” Ind. Code §

35-38-1-7.5(a) (2006).

6

search the entire state of Indiana for people they know or might know. In addition to being

available through Indiana‟s Online Registry, the information is available through the United

States Department of Justice. See Dru Sjodin National Sex Offender Public Website,

http://www.nsopr.gov (last visited April 23, 2009).

Criminal penalties associated with the duty to register have increased as well. When

enacted in 1994, the Act classified failure to register as a Class A misdemeanor, or as a Class D

felony if the offender had a prior unrelated offense for failure to register. Ind. Code § 5-2-12-9

(1994). Amendments in 1996 made failure to register a Class D felony, or Class C felony if there

was a prior unrelated offense for failure to register. Ind. Code § 5-2-12-9 (1996). In addition,

since 1996, at least once per year a sex offender must register in person with local law

enforcement and be photographed in each location where the offender is required to register. Ind.

Code § 11-8-8-14 (2006). Failure to do so is punishable as a Class D felony, or a Class C felony

if the offender has a prior unrelated conviction for registration violations. Ind. Code § 11-8-8-17

(2006).

A “sexually violent predator” who is absent for more than 72 hours from his principal

place of residence or spends time in a county in which he is not otherwise required to register

must inform law enforcement of his absence from his principal place of residence. Failure to do

so is punishable as a Class A misdemeanor or Class D felony if the person has a prior unrelated

offense for failing to comply with requirements imposed. Ind. Code § 11-8-8-18 (2006).

An offender must also at all times keep in his or her possession a valid driver‟s license or

identification card. Ind. Code § 11-8-8-15 (2006). Failure to do so is punishable as a Class A

misdemeanor, or Class D felony if the person is a sexually violent predator or has a prior

unrelated conviction for failing to comply with requirements imposed. Id. And offenders cannot

change their names except through marriage. Ind. Code § 11-8-8-16 (2006).

In addition to the registration and notification components of the Act, a 2006 amendment

to the criminal code made it an offense for sexually violent predators and certain subcategories

of sex and violent offenders (those designated “offenders against children”) to live within one

7

thousand feet of a school, youth program center, or public park, or living within one mile of the

residence of the victim of the offender‟s sex offense. Ind. Code § 35-42-4-11 (2006).

Discussion

I.

Wallace contends that as applied to him the Act violates the ex post facto prohibitions of

both the Indiana and federal Constitutions because he committed his crime, was sentenced, and

served his sentence before any registration or notification was required.

The United States Constitution provides that “[n]o State shall . . . pass any . . . ex post

facto Law.” U.S. Const. art. I, § 10. The Indiana Constitution provides that “[n]o ex post facto

law . . . shall ever be passed.” Ind. Const. art. I, § 24. Among other things “[t]he ex post facto

prohibition forbids the Congress and the States to enact any law „which imposes a punishment

for an act which was not punishable at the time it was committed; or imposes additional

punishment to that then prescribed.‟” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)) (footnote omitted). The

underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that

persons have a right to fair warning of that conduct which will give rise to criminal penalties.

Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006).

This Court has never addressed whether the analysis of an ex post facto claim under the

Indiana Constitution is the same as under the federal Constitution. The Court of Appeals has

determined there is no difference. See, e.g., Wiggins v. State, 727 N.E.2d 1, 5 (Ind. Ct. App.

2000); Douglas v. State, 878 N.E.2d 873, 878 (Ind. Ct. App. 2007); Ridner v. State, 892 N.E.2d

151, 154 (Ind. Ct. App. 2008). But this proposition was first advanced in Spencer v. O‟Connor,

707 N.E.2d 1039, 1042 (Ind. Ct. App. 1999). Ultimately concluding that the 1994 version of the

Act did not violate the ex post facto provision of the Indiana Constitution, the Court declared,

“Both parties acknowledge, and we agree, that the ex post facto analysis under Indiana law is the

same as under the federal Constitution.” Id. In support the Court of Appeals cited two opinions

from this Court, Crawford v. State, 669 N.E.2d 141 (Ind. 1996) and State ex rel. Dorton v.

8

Circuit Court of Elkhart County, 274 Ind. 373, 412 N.E.2d 72 (1980). See Spencer at 1042. We

observe however that although ex post facto challenges were raised in both Crawford and

Dorton, neither opinion discussed one way or the other whether ex post facto analysis under the

Indiana Constitution is the same as under the federal constitution.

This Court has long observed that even when confronted with similarly worded

provisions in the federal constitution, we will nonetheless apply an independent analysis when

interpreting provisions in our own constitution. “The Indiana Constitution has unique vitality,

even where its words parallel federal language.” State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.

2002). When we interpret language in our state constitution substantially identical to its federal

counterpart, “we may part company with the interpretation of the Supreme Court of the United

States or any other court based on the text, history, and decisional law elaborating the Indiana

constitutional right.” Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998). When interpreting

similarly worded provisions in the Indiana Constitution, we often rely on federal authority to

inform our analysis, even though the outcome may be different. Collins v. Day, 644 N.E.2d 72,

75 (Ind. 1994).

II.

When a statute is challenged as an alleged violation of the Indiana Constitution, our

standard of review is well settled. Every statute stands before us clothed with the presumption of

constitutionality until that presumption is clearly overcome by a contrary showing. State v.

Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992). The party challenging the constitutionality of

the statute bears the burden of proof, and all doubts are resolved against that party. Id. “If two

reasonable interpretations of a statute are available, one of which is constitutional and the other

not, we will choose that path which permits upholding the statute because we will not presume

that the legislature violated the constitution unless the unambiguous language of the statute

requires that conclusion.” State Bd. of Tax Comm‟rs v. Town of St. John, 702 N.E.2d 1034,

1037 (Ind. 1998).

9

As noted above, the United States Supreme Court concluded that Alaska‟s Sex Offender

Registration Act, which is very similar to Indiana‟s Act, did not violate the Ex Post Facto Clause

of the United States Constitution. See Smith, 538 U.S. at 105-06. In reaching its conclusion, the

Court applied the “intent-effects” test derived from its prior decisions to determine whether the

statute imposed punishment. Id. at 92. Under this test a court first determines whether the

legislature meant the statute to establish civil proceedings. Id. If the intention of the legislature

was to impose punishment, then that ends the inquiry, because punishment results. Id. If,

however the court concludes that the legislature intended a non-punitive regulatory scheme, then

the court must further examine whether the statutory scheme is so punitive in effect as to negate

that intention thereby transforming what had been intended as a civil regulatory scheme into a

criminal penalty. Id.

Although we reach a different conclusion here than the United States Supreme Court

reached in Smith, we agree that the intent-effects test provides an appropriate analytical

framework for analyzing ex post facto claims under the Indiana Constitution.7 And although a

multifactor test is susceptible to different conclusions, the availability of the reported decisions

applying the test helps in our analysis.

III.

The intent-effects test ordinarily directs us to determine first whether the Legislature

intended the Act to be a regulatory scheme that is civil and non-punitive. But we make two

observations. First, as the Indiana Court of Appeals has observed, “[I]t is difficult to determine

legislative intent since there is no available legislative history and the Act does not contain a

purpose statement.” Spencer, 707 N.E.2d at 1043. Second, it is unnecessary to address the first

7

In Smith the Court declared, “Because we ordinarily defer to the legislature‟s stated intent, only the

clearest proof will suffice to override legislative intent and transform what has been denominated a civil

remedy into a criminal penalty.” Id. at 92 (internal quotations omitted) (emphasis added). We observe

that legislative intent in this case has not been stated. Thus the “clearest proof” standard is not applicable

here. But even if legislative intent was clearly discernible, our standard of review for challenges to the

constitutionality of a statute has never included a clearest proof element. Instead, a statute is presumed

constitutional, and the party challenging its constitutionality has the burden of overcoming the

presumption by a contrary showing. Rendleman, 603 N.E.2d at 1334 (Ind. 1992). The heightened

standard of clearest proof is not consistent with this State‟s decisional law.

10

prong of the test in this instance, because assuming without deciding that the Legislature

intended the Act to be non-punitive, we conclude its effects are nonetheless punitive as to

appellant Wallace.

In assessing a statute‟s effects, the Supreme Court indicated that the seven factors listed

in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), “provide[] some guidance.”

United States v. Ward, 448 U.S. 242, 249 (1980). The seven factors are: “[1] Whether the

sanction involves an affirmative disability or restraint, [2] whether it has historically been

regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4]

whether its operation will promote the traditional aims of punishment-retribution and deterrence,

[5] whether the behavior to which it applies is already a crime, [6] whether an alternative

purpose to which it may rationally be connected is assignable for it, and [7] whether it appears

excessive in relation to the alternative purpose assigned.” Mendoza-Martinez, 372 U.S. at 168-

69 (footnotes omitted). The Supreme Court has not explained the relative weight to be afforded

each factor. However, the Court has acknowledged that the factors “often point in differing

directions” and that no one factor is determinative. Hudson v. United States, 522 U.S. 93, 101

(1997) (quoting Mendoza-Martinez, 372 U.S. at 169). In any event, “our task is not simply to

count the factors on each side, but to weigh them.” State v. Noble, 829 P.2d 1217, 1224 (Ariz.

1992). We address each factor in turn.

1. Affirmative Disability or Restraint

We first ask “[w]hether the sanction involves an affirmative disability or restraint.”

Mendoza-Martinez, 372 U.S. at 168. The short answer is that the Act imposes significant

affirmative obligations and a severe stigma on every person to whom it applies. First, the Act

compels affirmative post-discharge conduct (mandating registration, re-registration, disclosure of

public and private information, and updating of that information) under threat of prosecution.

Ind. Code §§ 11-8-8-14, -17 (2006). The duties imposed on offenders are significant and

intrusive, including allowing in-home personal visitation for verification of the offender‟s

address, id. at -13, carrying a valid identification at all times, id. at -15, and for some offenders,

informing local law enforcement authorities of their plans to travel from their principal place of

11

residence for more than 72 hours, id. at -18. Further, the time periods associated with the Act are

intrusive. Sexually violent predators must re-register for the rest of their lives;8 all other

offenders must re-register annually for a minimum of ten years. Id. at -14, -19 (2006). All sex

offenders who change residences must notify local law enforcement within seventy-two hours.

Id. at -11. It appears to us that through aggressive notification of their crimes, the Act exposes

registrants to profound humiliation and community-wide ostracism. Further the practical effect

of this dissemination is that it often subjects offenders to “vigilante justice” which may include

lost employment opportunities, housing discrimination, threats, and violence. Spencer, 707

N.E.2d at 1045. See also Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997) (noting that “sex

offenders have suffered harm in the aftermath of notification – ranging from public shunning,

picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence,

physical attacks, and arson”).

Considered as a whole the Act‟s registration and notification provisions impose

substantial disabilities on registrants. When the applicable provisions of the Act are considered

together, the first Mendoza-Martinez factor clearly favors treating the effects of the Act as

punitive when applied to Wallace.

2. Sanctions that have Historically been Considered Punishment

We next determine “whether [the sanction] has historically been regarded as a

punishment.” Mendoza-Martinez, 372 U.S. at 168. The Act does not expressly impose sanctions

that have been historically considered punishment. Because sex offender registration and

notification acts are of relatively recent origin, some courts addressing this issue have determined

that there is no historical equivalent. See, e.g., Hatton v. Bonner, 356 F.3d 955, 965 (9th Cir.

2004); Cutshall v. Sundquist, 193 F.3d 466, 475 (6th Cir. 1999). Other courts have determined

that sanctions imposed are not analogous to the historical punishments of shaming. See, e.g.,

Russell v. Gregoire, 124 F.3d 1079, 1091-92 (9th Cir. 1997); E.B. v. Verniero, 119 F.3d 1077,

1099-1100 (3d Cir. 1997). But we agree with the Alaska Supreme Court that “the dissemination

8

Since 2007, sexually violent predators have been required to re-register every ninety days. Ind. Code §

11-8-8-14 (2007).

12

provision at least resembles the punishment of shaming . . . .” Doe, 189 P.3d at 1012; see also

Smith, 538 U.S. at 115-16 (Ginsburg, J., dissenting) (“[The Alaska Act‟s] public notification

regimen, which permits placement of the registrant‟s face on a webpage under the label

„Registered Sex Offender,‟ calls to mind shaming punishments once used to mark an offender as

someone to be shunned.”). We observe that the Act‟s requirements also resemble historical

common forms of punishment in that its registration and reporting provisions are comparable to

conditions of supervised probation or parole.9 Aside from the historical punishment of shaming,

the fact that the Act‟s reporting provisions are comparable to supervised probation or parole

standing alone supports a conclusion that the second Mendoza-Martinez factor favors treating the

effects of the Act as punitive when applied in this case.10

3. Finding of Scienter

Third, we consider “whether [the statute] comes into play only on a finding of scienter.”

Mendoza-Martinez, 372 U.S. at 168. “The existence of a scienter requirement is customarily an

important element in distinguishing criminal from civil statutes.” Kansas v. Hendricks, 521

U.S. 346, 362 (1997). If a sanction is not linked to a showing of mens rea, it is less likely to be

intended as a punishment.

9

For example, persons on probation must report regularly to a probation officer and permit the probation

officer to visit the person‟s home. Ind. Code § 35-38-2-2.3 (Supp. 2008). The length of time sex

offenders and sexually violent predators are on parole mirrors substantially the length of their registration

requirement – ten years for sex offenders, and the remainder of the offender‟s life for sexually violent

predators and those convicted of murder or voluntary manslaughter. Ind. Code § 35-50-6-1(d), (e)

(2006).

10

See also Andrea E. Yang, Comment, Historical Criminal Punishments, Punitive Aims and Un-“Civil”

Post-Custody Sanctions on Sex Offenders: Reviving the Ex Post Facto Clause as a Bulwark of Personal

Security and Private Rights, 75 U. Cin. L. Rev. 1299, 1328 n.199 (2007) (noting that because actual

supervision of parolees and probationers is minimal due to high supervisory officer caseloads, only about

half of probationers comply with probation requirements and thus suggesting that sex offender restrictions

“may actually exceed those of probationers and parolees”).

13

We acknowledge that the Act applies to a few strict liability offenses. 11 However, it

overwhelmingly applies to offenses that require a finding of scienter for there to be a

conviction. The few exceptions do not imply a non-punitive effect. We conclude that the third

Mendoza-Martinez factor slightly favors treating the effects of the Act as punitive when applied

here.

4. The Traditional Aims of Punishment

We next ask “whether [the statute‟s] operation will promote the traditional aims of

punishment – retribution and deterrence.” Mendoza-Martinez, 372 U.S. at 168. We first

observe that although the Mendoza-Martinez test focuses on retribution and deterrence, under

our state Constitution, the primary objective of punishment is rehabilitation. “The penal code

shall be founded on the principles of reformation, and not of vindictive justice.”12 Ind. Const.

art. 1, § 18. And there are other objectives including the need to protect the community by

sequestration of the offender, community condemnation of the offender, as well as deterrence.

Abercrombie v. State, 441 N.E.2d 442, 444 (Ind. 1982).

In Kansas v. Hendricks, the United States Supreme Court determined that the Kansas

Sexually Violent Predator Act was not retributive because “it does not affix culpability for

prior criminal conduct.” 521 U.S. 346, 362 (1997). The Kansas Act is triggered not by a

criminal conviction, but rather by criminal conduct. It applies to persons charged with

sexually violent offenses but who may be absolved of criminal responsibility. Id.; see also

Kan. Stat. Ann. §§ 59-29a02(a), 59-29a03(a) (2005). As a result the Court declared, “[A]n

absence of the necessary criminal responsibility suggests that the State is not seeking

retribution for a past misdeed.” Hendricks, 521 U.S. at 362. Indiana‟s Act is dramatically

11

For example, child molesting, as defined by Indiana Code § 35-42-4-3 (2006), requires no scienter

where there is sexual intercourse or deviate sexual conduct with a child under fourteen years of age. See

also Ind. Code § 35-42-4-9 (2006) (sexual misconduct with a minor).

12

“Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any

problem except realizing „justice.‟ Deterrent measures serve as a threat of negative repercussions to

discourage people from engaging in certain behavior.” Artway v. Attorney Gen. of N.J., 81 F.3d 1235,

1255 (3d Cir. 1996).

14

different. As discussed supra in the Background section of this opinion the Act applies only to

offenders convicted of specified offenses.

It is true that to some extent the deterrent effect of the registration and notification

provisions of the Act is merely incidental to its regulatory function. And we have no reason to

believe the Legislature passed the Act for purposes of retribution – “vengeance for its own

sake,” Artway, 81 F.3d at 1255. Nonetheless it strains credulity to suppose that the Act‟s

deterrent effect is not substantial, or that the Act does not promote “community condemnation

of the offender,” Abercrombie, 441 N.E.2d at 444, both of which are included in the traditional

aims of punishment. We conclude therefore that the fourth Mendoza-Martinez factor slightly

favors treating the effects of the Act as punitive when applied to Wallace.

5. Application Only to Criminal Behavior

Under the fifth factor we consider “whether the behavior to which [the statute] applies is

already a crime.” Mendoza-Martinez, 372 U.S. at 168. The fact that a statute applies only to

behavior that is already, and exclusively, criminal supports a conclusion that its effects are

punitive. When analyzing the Alaska Sex Offender Registration Act, the Supreme Court

declared that past criminal conduct is “a necessary beginning point, for recidivism is the statutory

concern.” Smith, 538 U.S. at 105. But if recidivism were the only concern, the statute would

apply not only to convicted sex offenders, but also to other defendants who might pose a threat to

society even if they are not convicted. Doe, 189 P.3d at 1014. For example, the Washington Sex

Offender Registration Act, upheld by the Ninth Circuit, includes sex offenders not found guilty –

those charged with sex offenses but found incompetent to stand trial, found not guilty by reason

of insanity, and those committed to mental health facilities as sexual psychopaths or sexually

violent predators – as well as those who are convicted of sex offenses. Russell v. Gregoire, 124

F.3d 1079, 1091 (9th Cir. 1997); Wash. Rev. Code § 4.24.550(1)(c)-(e) (Supp. 2009).13

13

See also Femedeer v. Haun, 227 F.3d 1244, 1251-52, 1255 (10th Cir. 2000) (upholding

constitutionality of Utah‟s Sex Offender Registration Act which includes offenders found not guilty on

ground of mental incapacity).

15

In this jurisdiction the Act applies only to defendants “convicted” of certain specified

offenses. Ind. Code § 11-8-8-5(a) (2006). We find nothing in the Act that anticipates registration

and notification for an offender charged with a sex offense who later by reason of an agreement

pleads guilty to another charge for which registration is not required. Nor for example does the

Act appear to anticipate that a defendant whose conviction for a sex offense is reversed on appeal

(for reasons other than sufficiency of the evidence) is required to register despite having

obviously engaged in prohibited conduct. In sum, it is the determination of guilt of a sex

offense, not merely the fact of the conduct and potential for recidivism, that triggers the

registration requirement. Because it is the criminal conviction that triggers obligations under the

Act, we conclude that this factor supports the conclusion that the Act is punitive in effect as to

Wallace.

6. Advancing a Non-Punitive Interest

We next ask whether, in the words of the United States Supreme Court, “an alternative

purpose to which [the statute] may rationally be connected is assignable for it.” Mendoza-

Martinez, 372 U.S. at 168-69. We agree with the Alaska Supreme Court that this statement is

best understood as an inquiry into whether the Act advances a legitimate, regulatory purpose.

Doe, 189 P.3d at 1015. The answer is undoubtedly yes. As we indicated earlier in this opinion,

“it is difficult to determine legislative intent since there is no available legislative history and the

Act does not contain a purpose statement.” Spencer, 707 N.E.2d at 1043. And, what began

under the original Megan‟s law – or in this state, Zachary‟s law – as a measure to give the

community notification necessary to protect its children from sex offenders, has become

something much greater. Although this expansion supports the view that the effects of the Act

are punitive, still the Act advances a legitimate regulatory purpose. We are not looking for a

“close or perfect fit with the nonpunitive aims,” Smith, 538 U.S. at 103, but only that the Act

advances a legitimate purpose of public safety. Id. at 102-03. We cannot disagree that “[t]he

risk of recidivism posed by sex offenders is „frightening and high,‟” Lee, 935 A.2d at 882

(quoting McKune v. Lile, 536 U.S. 24, 34 (2002)), or that registration systems are a legitimate

way to protect the public from repeat offenders. We conclude therefore that the sixth Mendoza-

Martinez factor clearly favors treating the effects of the Act as regulatory and non-punitive.

16

7. Excessiveness In Relation to State’s Articulated Purpose

Finally we determine “whether [the Act] appears excessive in relation to the alternative

purpose assigned.” Mendoza-Martinez, 372 U.S. at 169. A number of courts give greatest

weight to this factor. See, e.g., Kellar v. Fayetteville Police Dept., 5 S.W.3d 402, 409 (Ark.

1999) (“It is the seventh and final factor which weighs most heavily in the balance in Arkansas,

as in most other states: the question of whether the Act is excessive in relation to its alternative

purposes.”); Commonwealth v. Mullins, 905 A.2d 1009, 1017 (Pa. Super. Ct. 2006) (“Most

relevant to the issue in the instant appeal [] is the last Mendoza-Martinez factor . . . which

involves an examination of excessiveness when determining whether a statute has a punitive

effect.”); Rodriguez v. State, 93 S.W.3d 60, 75 (Tex. Crim. App. 2002) (“of all the [Mendoza-

Martinez] factors, this factor [excessiveness] cuts most directly to the question of which statutes

cross the boundaries of civil sanctions, and which do not. Accordingly, we afford this factor

considerable weight in deciding whether the amendments are punitive-in-fact”) (internal

citations omitted).

As we note above registration systems are a legitimate way to protect the public from sex

offenders. Of course if the registration and disclosure are not tied to a finding that the safety of

the public is threatened, there is an implication that the Act is excessive. In those jurisdictions

that have rejected ex post facto challenges to sex offender registration statutes, courts have

specifically noted that disclosure was limited to that necessary to public safety, and/or that an

individualized finding of future dangerousness was made. For example, in Pataki, 120 F.3d at

1281-83, 1285, cert. denied, 522 U.S. 1122 (1998), the Second Circuit upheld New York‟s sex

offender statute based on its tiered structure, which tied the harshness of the registration

requirements to an individualized assessment of the risk that each offender posed to the

community. Significantly, despite the outcome the court reached, it noted that the question of

the statute‟s punitive-in-fact aspect was “not free from doubt.” Id. at 1265. See also Cutshall v.

Sundquist, 193 F.3d 466, 471, 483 (6th Cir. 1999) (rejecting ex post facto challenge to Tennessee

sex-offender registration statute, which provided that the Tennessee Bureau of Investigation or

the local law enforcement agency could release relevant information deemed necessary to protect

the public concerning a specific sexual offender who was required to register).

17

In this jurisdiction the Act makes information on all sex offenders available to the general

public without restriction and without regard to whether the individual poses any particular future

risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no

mechanism by which a registered sex offender can petition the court for relief from the obligation

of continued registration and disclosure. Offenders cannot shorten their registration or notification

period, even on the clearest proof of rehabilitation.14 Thus, the non-punitive purpose of the Act,

although of unquestioned importance, does not serve to render as non-punitive a statute that is so

broad and sweeping. We conclude that the seventh Mendoza-Martinez factor favors treating the

effects of the Act as punitive.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the

inquiry of whether a statute has a punitive effect despite legislative intent that the statute be

regulatory and non-punitive, only one factor in our view - advancing a non-punitive interest –

points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors,

particularly the factor of excessiveness, point in the other direction.

Conclusion

Richard Wallace was charged, convicted, and served the sentence for his crime before

the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted.

We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws

contained in the Indiana Constitution because it imposes burdens that have the effect of adding

punishment beyond that which could have been imposed when his crime was committed. We

therefore reverse the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

14

We note, however, that a sexually violent predator may, after ten years, “petition the court to consider

whether the person should no longer be considered a sexually violent predator.” I.C. § 35-38-1-7.5(g)

(2006).

18