Tuesday, June 24, 2008

New Indiana Sex Offender Registry Law Declared Unconstiutional

U.S. District Court Judge David Hamilton of the Southern District of Indiana declared a provision enacted by the Indiana legislature this past session pertaining to registered sex offenders unconstitutional as a violation of the Fourth Amendment right against unreasonable searches and seizures. The new law requires anyone subject to Indiana's sex offender registry to consent to the search of their personal computers or other devices with Internet capability at any time and consent to the installation of tracking devices, at their expense, to monitor their Internet usage. The new law even applies to persons who have fulfilled their sentences and who are no longer on probation, parole or any other form of court supervision. Failure to comply with the new law's Internet usage requirements is a Class D felony. With respect to the class of persons who have served out the punishment for their past crimes, Judge Hamilton reminds us that they have rights under the Fourth Amendment. "The State may not force them to waive those rights under threat of criminal prosecution for failing or refusing to do so," Hamilton said.

This new law is just another case of state lawmakers singling out a disfavored class of persons for unfavorable treatment under the law without regard to their constitutional rights simply to score political points. That's why the framers of our constitution placed certain fundamental rights of the individual beyond the reach of a popularly-elected legislative body. Tyranny of the majority is the phrase de Tocqueville coined as a potential weakness of American democracy. The need for the courts to step in and enforce the Bill of Rights is essential if we are to protect unfavored minority groups from the tyranny of the ruling majority. In this case, the ACLU of Indiana brought the suit on behalf of the affected sex offenders. Judge Hamilton's decision declaring the statute unconstitutional is not the work of an activist judge as some folks will no doubt soon be declaring it; rather, his decision is based on sound Fourth Amendment jurisprudence. Who was the sponsor of this new law you might ask? Sen. John Waterman, a conservative Republican and former county sheriff who is seeking to run as a third party candidate for governor under the Taxpayer Party banner.


Diana Vice said...

I don't usually come down on the side of the ACLU, but they were absolutely right on this one. We may not like child molesters, but proposing legislation that clearly violates the 4th amendment was not an example of good government.

legaldiva said...

Judge Hamilton has guts to do the right thing, which is why he is an excellent judge. We are fortunate to have him on the bench in our district.