The unanimous three-judge panel of the 7th Circuit held that erroneous labeling any person as a “sexually violent predator” implicated a liberty interest protected by the Due Process Clause. The court also noted that most people on Indiana’s sex offenders’ list did not have any opportunity to challenge any error in the listings, and that it was only recently that Indiana had started allowing current prisoners challenge pending listings. This leaves out all who are not current prisoners and all whose listings are not pending.
Circuit Judge Diane Wood wrote for the unanimous panel, “The policy provides no process whatsoever to an entire class of registrants — those who are not incarcerated, and is therefore “constitutionally insufficient.”
The decision given on Tuesday reverses a December 2011 ruling made by US District Judge Tanya Walton Pratt in Indianapolis. The 7th U.S. Circuit Court of Appeals in Chicago, sent the case back to the lower court encouraging the parties to decide on procedures to fix registry errors.
State legislators in Indiana have begun hearings this month on possible changes to the registry following the findings made by the Indiana Supreme Court in 2009, in which the Supreme Court found certain restrictions in the registry unconstitutional.
Ken Falk, legal director of the ACLU of Indiana, said he was “very happy” with Tuesday’s decision. He said, “There are examples of people who are being labeled as sex offenders who are not, and cannot get their names off the registry…That is a stigma that follows you forever.”