Archive for July 12, 2007
Indiana challenge to residency restrictions
Jul 12th
After residency restrictions went into effect in Tippecanoe County, 28 sex offenders have been asked to move their homes. One of them, John Doe, is saying no. John Doe was convicted in 1988 and released from jail in 1992. Since then, he has no arrests. He has lived at his current address for 7 years. However, new legislation is forcing him to relocate.
Legislation took effect July 1, 2006, that prohibits those offenders from living within 1,000 feet of a school, public park or youth program center.
Wording of the law does not make it clear whether it applies to offenders convicted before that date.
But the Tippecanoe County prosecutor’s office is enforcing it as applying to any such offender in the Indiana Sheriff’s Sex and Violent Offender Registry.
John Doe is taking advantage of an IN law that permits sex offenders who are 10 years removed from their release to petition a court to be no longer considered a sex offender.
Here [pdf]are the motions and petitions he filed in court, which include the petition to no longer be considered a sex offender, a Motion for Preliminary Injunction and a Motion for Permanent Injunction.
The legislation is challenged on ex-post facto, takings clause and double jeopardy grounds.
photo courtesy: http://www.flickr.com/photos/mysticchildz/540087127/ , license info: http://creativecommons.org/licenses/by/3.0/
Is failure to register a continuing offense? Part II
Jul 12th
I asked this question a while ago and still don’t have a firm answer. Now, pd blogger Saucy Vixen has the same question:
I’m attempting to craft an argument that failure to register as a sex offender is an ongoing offense. The case law isn’t particularly helpful, but I figure I’ll give it a shot anyway. The only stuff I found that is even vaguely on point are cases holding that failure to register for the draft is NOT a continuing offense. This is not helpful.
My original post broke it down as follows:
When does a sex offender commit the offense of “failing to register” and is it a continuing crime for as long as the offender fails to register?
There are but two options here:
- Either the crime is committed on the first day that the offender has to register but doesn’t;
- He continues to commit the offense for each day that he doesn’t register until he does or is arrested.
The reason for arguing that it is a continuing offense is to prevent the client from being charged with multiple counts of failure to register.
I think the best argument to make is to liken it to other situations in criminal law where ones argues that there should not be multiple counts, such as a sequence of events constituting the same criminal transaction or enterprise. Statutory construction would also come in handy. The statute makes no mention of “each subsequent day”; rather it says that the probationer must register within x number of days and failure to comply with the statute is a felony.
Think about it this way: If the client were to register three days late, would the state charge him with 2 counts of failure to register or just one? If the answer is the latter, then what difference does it make whether he registers 3 days late of 30 days late?
I haven’t had the opportunity to search case law in other states, but I’m sure there are plenty of examples where offenders have either completely failed to register or have registered very late and yet have been charged with one count only.
Thoughts?
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