Sex Offender Law Unconstitutional As Retroactively Applied

An Indiana law barring certain registered sex offenders from residing within 1,000 feet of a school, youth center or park is an unconstitutional ex post facto law as applied to an offender who had purchased his home prior to the enactment of the law according to an Indiana Court of Appeals decision, State v. Pollard. In this particular case, a defendant convicted of a sex offense against a child in 1997 was charged with a Class D felony for residing within 1,000 feet of a school in January, 2007 after the enactment of Indiana's version of Megan's Law, which took effect on July 1, 2006. The defendant had resided in the same home for nearly 20 years. The trial court dismissed the charge as a violation of the defendant's protection against the enactment of an ex post facto law.

As the Court of Appeals explained, the federal and state constitutional protection against ex post facto laws provides that "a law may not be enacted if it imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment beyond the measure prescribed at the time." The purpose of the constitutional protection is to ensure "the right to fair warning of that conduct which will give rise to criminal penalties." The State argued that the defendant was not being punished for conduct which occurred prior to the enactment of the residency restriction, and that the law was civil in nature. The Court of Appeals disagreed, finding that the statute was indeed a criminal statute because it created a new criminal offense. As applied, the Court found it unmistakable that the statute had the effect of increasing the penalty for the defendant's past criminal conduct by depriving him of an important property right which he had acquired prior to his criminal conviction.

Hat tip to Indiana Law Blog.