On August 26, 2012, the Seventh Circuit court of appeals held that the Indiana Department of Corrections (DOC) must provide a procedure by which persons listed on the state's "Sex and Violent Offender Registry" (SVOR) may appeal errors in their registry information.
Any resident of Indiana convicted of one of 21 crimes--including non-sex offenses such as murder, voluntary manslaughter and kidnapping--must register. The SVOR lists the registrant's height, weight, race, age, gender, home address, photograph and crimes. Some registrant who committed especially serious or multiple offenses are labeled "sexually violent predator" (SVP).
A registrant must report in person to local law enforcement annually to update registration information unless that person is an SVP. An SVP must report every 90 days. Failure to report is a felony.
Registrants must allow law enforcement to visit and verify their addresses annually (every 90 days for SVPs). They are also required to carry a valid driver's license or state identification card at all times or face criminal prosecution. They may not change their names.
Additionally, SVPs may not live, work or volunteer within 1,000 feet of a school, public park or youth program center. If an SVP intends to be absent from home from more than 72 hours, the SVP must inform local law enforcement in the county of residence and the county being visited.
David Schepers was one of the approximately 24,000 SVOR registrants. He had been convicted of two counts of child exploitation. Currently, his information page contains the designation "Offender Against Children." In the past, it erroneously contained the designation "Sexually Violent Predator" and he was subjected to the more burdensome requirements of SVPs because of that erroneous designation.
When Schepers learned of the erroneous designation, he sought to have the information on his SVOR page corrected. Having discovered that there was no formal method to challenge errors in the SVOR, he unsuccessfully informally petitioned various government officials to correct the information. Then he filed a federal class-action civil rights suit against the DOC, the entity charged by state law with maintaining the SVOR. The 42 U.S.C. § 1983 suit alleged that the lack of a correction mechanism was a due process violation.
The DOC instituted a policy by which state prisoners approaching release could challenge information about to be posted on the SVOR. The district court granted the DOC summary judgment on the grounds that this was sufficient process. Schepers appealed.
The Seventh Circuit noted that the DOC was responsible for the SVOR despite having contracted out its maintenance. It then held that being mislabeled on the SVOR "deprives members of the class of a variety of rights and privileges held by ordinary Indiana citizens, in a manner closely analogous to the depravations imposed on parolees or persons on supervisory release." Thus, it implicates a liberty interest protected by the Due Process Clause and some process must be provided to correct the errors.
The current DOC process is insufficient in that it does not actually require any review before the appeal is "deemed denied" 30 days after submission and provides no process at all for persons already released from the DOC or who never were incarcerated in the DOC. Therefore, the judgment of the district court was reversed and the case remanded for further proceedings. See: Schepers v. Commissioner, Indiana Department of Correction, 691 F.3d 909 (7th Cir.) No. 11-3834.
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Related legal case
Schepers v. Commissioner, Indiana Department of Correction
|691 F.3d 909 (7th Cir.) No. 11-3834
|Court of Appeals
|Appeals Court Edition