Schepers v. Commissioner of DOC

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8-28-2012 Indiana:

Schepers v. Commissioner of DOC
(691 F.3d 909 (2012)

Indiana, like many states, maintains a public database of persons convicted of sex offenses. Its database is called the "Sex and Violent Offender Registry" and is accessible via the Internet. People visiting the registry's website find, on each registrant's page, a recent photograph, home address, information about the registrant's height, weight, age, race, and sex, and information about the particular offenses that required placement on the registry. Some registrants' pages may additionally carry the label of "sexually violent predator," if they have committed certain serious offenses or have had multiple previous convictions for specified sex and violent offenses. The public can search the database by a variety of fields (such as offender name or county of residence), and can generate a map showing the location of all registered offenders living near any address (such as one's home or school).

The status of being a "sexually violent predator" carries with it extra burdens. In addition to their obligation to register more frequently, sexually violent predators are regulated in other ways: they cannot live, work, or volunteer within 1,000 feet of a school, public park, or youth program center. To do so is a felony. In addition, if a sexually violent predator plans to be absent from her home for more than 72 hours, she must inform local law enforcement in both the county where she lives and the county she plans to visit of her travel plans.

Schepers must register because he was convicted of two counts of child exploitation in 2006. If one were to visit Schepers's registry profile today, she would see those two counts along with the designation "Offender Against Children." But for some time in the past, Schepers was erroneously designated as a "Sexually Violent Predator" and thus was subject to the more burdensome requirements and restrictions that apply to that group. (There is no dispute that Schepers is not a Sexually Violent Predator under Indiana law.)

He tried to correct this error, but he found that the DOC provided no official channel or administrative mechanism allowing him to do so. He turned to informal channels, telephoning officials in the DOC in an attempt to get the label removed. When that proved unsuccessful, he brought suit against the DOC under 42 U.S.C. § 1983 on behalf of a class of registrants, arguing that the DOC's failure to provide any mechanism to correct registry errors violated due process and seeking injunctive relief to establish such a procedure.

A class of persons required to register brought this suit against the Indiana Department of Correction (DOC), alleging that the DOC's failure to provide any procedure to correct errors in the registry violates due process. In response, the DOC created a new policy to give notice to current prisoners about their pending registry listings and an opportunity to challenge the information. The district court granted summary judgment on the ground that the new policy was sufficient to comply with due process. But the DOC's new procedures still fail to provide any process at all for an entire class of registrants—those who are not incarcerated. We thus reverse the district court's grant of summary judgment and remand for further proceedings.

We conclude with the observation that providing additional procedures to correct registry errors may wind up benefitting the state as well as registrants. Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public. See Indiana Sex Offender Registry Full of Inaccuracies, EVANSVILLE COURIER & PRESS, Apr. 21, 2012, available at http://www. courierpress.com/news/2012/apr/21/indiana-sex-offender-registry-full-inaccuracies/ (quoting the "director of legislative affairs at the National Center for Missing & Exploited Children" calling the errors "troubling" because "[t]he value of the public registry as a child protection tool is that the information is accurate"). Reducing these errors is in the interest of the state as well as the plaintiffs.

On remand, we encourage the parties to work together to come to an agreement that fits within the boundaries outlined above. As it stands, the DOC's process is constitutionally insufficient. We thus REVERSE the district court's grant of summary judgment and REMAND for further proceedings consistent with this opinion.

See article: Indiana sex offender list violates due process: court