Important Update on Requests to Remove Indiana Sexually Violent Predator Designation
In 1994, Indiana’s sex offender registry was created. At that time, it included a small group of offenders on a private list who were tracked during a relatively short period of time when they were the most likely to reoffend. Over the years, the registry has greatly expanded.
In 1998, for example, the legislature created a new category of offender: the sexually violent predator (SVP). If at sentencing the State presented evidence from two experts that an offender suffered from a mental abnormality or personality disorder that made him more likely to commit another sex offense, the offender would be labeled an SVP and subject to additional restrictions.
In 2003, the General Assembly changed the law to require SVPs to register for life. In 2007, the law changed again. Now, offenders need not have an expert determine whether the offender was an SVP; the offender would be labeled as one by operation of law merely due to the crime for which he was convicted.
People who for years thought they were only going to have to register as a sex offender for ten years suddenly learned the requirement was now for life. But the General Assembly did provide one avenue of relief for some of these offenders. After registering for ten years, an SVP can petition the sentencing court to remove the SVP designation and, consequently, the lifetime registration requirement.
The process of removal seems simple enough. The registrant files a basis petition in the trial court, usually explaining how the registrant has dutifully registered for at least ten years, has not committed any new criminal offenses, has completed therapy or counseling, etc. Thereafter, the trial court appoints two experts to evaluate the registrant and determine whether he still fits the definition of an SVP. In every case I have handled, the experts have concluded the registrant no longer met the definition of an SVP. This is likely due to the fact that the registrant never fit the definition in the first place but was labeled an SVP merely by operation of law.
The process, while simple enough, was not guaranteed to be successful. This is because the law allows the trial court to simply dismiss a petition without appointing experts to complete evaluations or holding a hearing. Until now, there has been no guidance provided on what registrants must allege to at at least get past the dismissal stage.
M.W. found himself in a position that many of my clients do. He had committed an offense in 1999, which required him to register on Indiana’s sex offender registry for ten years. Only a few years before M.W. was set to complete his registration obligation, the law changed, requiring M.W. and many other ten-year registrants to now register for life.
Constitutional challenges to the retroactive application of the law were unsuccessful. Our Supreme Court noted that because these registrants had an opportunity to seek removal from the registry after ten years, there was no constitutional violation.
The issue, however, is that the statute providing such an opportunity allowed the trial court to dismiss the petition for any reason (or for no reason). And that’s what occurred in M.W.’s case. After filing a petition seeking removal, the trial court dismissed the petition without a hearing.
M.W. appealed, arguing that he was entitled to a h earing on constitutional grounds. Eventually the Supreme Court of Indiana agreed to review the case and issue a decision.
The Court issued several notable holdings. First, it addressed the contents of the removal petition itself. Indiana is a “notice-pleading” state, which means that petitioners seeking relief usually only need to make basic assertions that, if proven true, would entitle the person to the relief requested. Thus, registrants often asserted they had registered dutifully for at least 10 years, they had lived a law-abiding life during that time, they had completed therapy or counseling successfully and had been rehabilitated, and they had strong ties to family and to the community.
These are the assertions M.W. made in his petition. He also attached a letter from the registration coordinator in his county, who corroborated M.W.’s assertion that he had registered dutifully for ten years. M.W. also attached a letter from his employer indicating that M.W. had been honest about his criminal history and was a model employee.
The Supreme Court noted that this alone was not enough information to warrant a hearing on the petition. The petition also needed to explain what led to the offense occurring in the first place (i.e., substance abuse, depression, etc.) and how the registrant had addressed those underlying issues to ensure the offense would not happen again. Merely remaining law-abiding for over ten years was not sufficient to prove the sex offense was unlikely to happen again.
In M.W.’s case, the Supreme Court noted: “There is no indication that [M.W.] has overcome his drinking problem or aggressive behavior. The fact that he’s held down a job for twenty-plus years and was never prosecuted for failing to register merely shows that he can manage his responsibilities effectively. And while his employer attested to [M.W.] having been transparent about his criminal history, the letter — stating vaguely that [M.W.] has been ‘very forthcoming with information regarding his past legal issues’ — makes no indication of what, exactly, [M.W.] has been transparent about. For all we know, [M.W.] may be shading the facts of the offense — and perhaps even still deflecting blame — to engender sympathy from his employer. Finally, although [M.W.] may have successfully completed sex-offender therapy ‘years ago,’ he offered no further details of the rehabilitative efforts this therapy required.”
The Court explained what showing a petitioner must make to be entitled to a hearing on his petition: “[W]e set forth the following rule: A trial court should set a hearing, upon the offender’s request, at which the court-appointed experts testify to their evaluations when the offender makes a prima facie showing that he no longer ‘suffers from a mental abnormality or personality disorder’ that ‘presents a substantial danger, that is, a serious and well-founded risk,’ that he will recidivate by committing an SVP-qualifying sex offense. An offender can meet this threshold showing by tendering an expert affidavit of his own or, as the State proposes, by submitting detailed ‘records from his previous sex offender counseling, which would be in the nature of expert testimony,’ as evidence of ‘previous rehabilitative efforts’ having succeeded in containing the offender’s propensity to recidivate.”
The Supreme Court’s decision, while unanimous on the result, was divided 3-2. The two concurring justices did not believe the statute required a hearing at all, leaving it completely in the trial court’s discretion.
While not the outcome I had hoped for, M.W.’s case does provide helpful guidance for practitioners.
FIRST, SVP removal petitions are different than other petitions. Simple notice-pleading is not enough. Practitioners should treat the petition as the de facto hearing. One cannot simply allege what will be proven at the hearing. Rather, the petitioner must put forward the evidence in the petition itself to make a strong record for appeal if a hearing is not given.
SECOND, this will basically require an independent expert evaluation be done before the petition is filed. Unfortunately, those evaluations take time, and they are not cheap. But the language in the M.W. opinion suggests they are basically required from now on to make a prima facie showing to move forward in the removal process.
THIRD, courts have started requiring petitioners to pay for the court-appointed expert evaluations. But language in M.W. makes clear that it is a public expense, not one to be borne by the petitioner. The majority notes, “And requiring the trial court to appoint testifying experts in every case runs counter to the State’s ‘compelling interest in ensuring that public funds are not spent needlessly, wastefully or extravagantly.’” (Underlined emphasis added). The concurring justices also noted, “With today’s opinion, a trial court must now hold a haring and appoint at public expense not one but two expert witnesses . . . .”