Brian Hope v. Commissioner of Indiana Depart ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2523
BRIAN HOPE, et al.,
Plaintiffs-Appellees,
v.
COMMISSIONER OF INDIANA DEPARTMENT OF CORRECTION, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-2865 — Richard L. Young, Judge.
____________________
ARGUED MAY 20, 2021 — DECIDED AUGUST 16, 2021
____________________
Before SYKES, Chief Judge, and EASTERBROOK, KANNE, ROV-
NER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, and
KIRSCH, Circuit Judges.1
1 Circuit Judge Jackson-Akiwumi did not participate in the consider-
ation or decision of this case.
2 No. 19-2523
ST. EVE, Circuit Judge. Indiana’s Sex Offender Registration
Act (“SORA”) imposes registration requirements and re-
strictions on sex offenders who reside, work, or study in the
State. Ind. Code § 11-8-8-1 et seq. By virtue of the State su-
preme court’s construction of the Indiana Constitution, Indi-
ana’s Ex Post Facto Clause prohibits retroactive application of
SORA to offenders convicted before its enactment unless the
marginal effects of doing so would not be punitive. Wallace v.
State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384(Ind. 2009). If an offender was under no registration require-
ment prior to SORA’s passage, imposing a registration re-
quirement in the first instance is impermissibly punitive. Wal-
lace, 905 N.E.2d at 371. The Indiana Supreme Court has held,
however, that if another state previously subjected a pre-
SORA offender to a registration requirement, requiring him
to register in Indiana is not punitive. See, e.g., Tyson v. State, 51
N.E.3d 88 (Ind. 2016). Indiana caselaw thus has the peculiar
effect of permitting the State to treat similarly situated offend-
ers differently based solely on whether an offender had an
out-of-state registration obligation. That feature underlies the
present appeal.
The plaintiffs, six sex offenders residing in Indiana, were
convicted prior to SORA’s passage. Each of them had to reg-
ister in another state. After moving to Indiana, the State re-
quired them to register under SORA. Absent their out-of-state
registration obligations, Indiana’s Constitution would pro-
hibit SORA’s application to them. Plaintiffs challenge the con-
stitutionality of SORA on three fronts, arguing that it violates
their right to travel under the Privileges or Immunities
Clause, their right to equal protection under the Fourteenth
Amendment, and Article I’s prohibition on ex post facto laws.
The district court granted summary judgment for the
No. 19-2523 3
plaintiffs on all claims, and Indiana appealed. A divided
panel of this Court affirmed the district court, but we subse-
quently agreed to hear the case en banc.
We now reverse. SORA does not violate the right to travel
because it does not expressly discriminate based on residency,
as consistently required by the Supreme Court. Plaintiffs’ ex
post facto claim is likewise precluded by precedent. Applying
Smith v. Doe, 538 U.S. 84 (2003), we hold that SORA is not “so
punitive either in purpose or effect” as to surmount Indiana’s
nonpunitive intent for the law. But because the district court
did not address whether SORA passes rational basis scrutiny
under an equal protection analysis, we remand for considera-
tion of the equal protection claim.
I.
A.
The Indiana General Assembly enacted SORA, also
known as “Zachary’s Law,” in 1994. SORA establishes both
requirements and restrictions for qualifying sex offenders,
and it authorizes the Indiana Department of Correction
(“IDOC”) to collect and publish data about them. Ind. Code
§ 11-8-2-13(b). Under SORA, offenders must register by re-
porting to local law enforcement at least once annually in
every county where they reside, work, or study. §§ 11-8-8-14,
11-8-8-7. Reporting requirements are more frequent for “sex-
ually violent predators”—every 90 days—and offenders with-
out permanent housing—every 7 days. §§ 11-8-8-14, 11-8-8-
12. Registration entails providing detailed personal infor-
mation, including: a photograph; legal name, date of birth,
and physiological features; identification numbers; internet
usernames and email addresses; residential, school, and
4 No. 19-2523
workplace addresses; vehicle information and license plate
number; and any “other information required by the
[IDOC].” § 11-8-8-8(a). Offenders must report any change to
this information within 72 hours. SORA also mandates that
law enforcement officers contact offenders once a year to ver-
ify their residences (every 90 days for sexually violent offend-
ers). § 11-8-8-13(a). And offenders pay a yearly $50 registra-
tion fee, plus a $5 fee any time they must register a change of
address. § 36-2-13-5.6.
Certain offenders are subject to more stringent require-
ments. A “sexually violent predator” must notify law enforce-
ment if he plans to be absent from his residence for more than
72 hours and must register in the county that he visits. § 11-8-
8-18. An “offender against children” may not work or volun-
teer at a school, daycare, youth program center, or public park
and cannot live within 1,000 feet of these locations. §§ 35-42-
4-10(c), 35-42-4-11. A “serious sex offender” may not enter
school property. § 35-42-4-14. An offender’s failure to comply
with SORA can result in criminal sanctions.
Following its enactment, SORA underwent several expan-
sions. Indiana broadened the list of crimes that trigger regis-
tration requirements, and it amended SORA to require regis-
tration for individuals convicted of substantially similar of-
fenses in another state. On July 1, 2006, the General Assembly
extended SORA’s requirements to any “person who is re-
quired to register as a sex offender in any jurisdiction.” § 11-
8-8-5(b)(1). In its current form, SORA requires offenders to
register if they were:
(1) convicted of an enumerated Indiana criminal offense,
§§ 11-8-8-4.5, 11-8-8-5(a);
No. 19-2523 5
(2) convicted of a “substantially similar” offense in an-
other jurisdiction, § 1-1-2-4(b)(3); or
(3) required to register by another state (the “other-juris-
diction provision”), § 11-8-8-5(b)(1).
By its plain terms, SORA covers any offender who fits within
these categories—regardless of his date of conviction.
B.
While SORA is fully retrospective as a statutory matter,
the Indiana Constitution constrains its applicability to offend-
ers with pre-SORA offenses. The Indiana Supreme Court ar-
ticulated these constitutional boundaries in a series of deci-
sions, beginning with Wallace v. State. In Wallace, the court ap-
plied its own version of the Supreme Court’s “intent-effects”
test and held that SORA had a punitive effect as applied to
Wallace—who had been charged, convicted, and served his
sentence before Indiana enacted SORA—and that it thus vio-
lated Indiana’s Ex Post Facto Clause. 905 N.E.2d at 379, 384.
Wallace did not foreclose all retroactive applications of
SORA, however. Indeed, the same day that it decided Wallace,
the Indiana Supreme Court issued its opinion in Jensen v.
State. Unlike Wallace, Jensen pleaded guilty in 2000—after
SORA’s enactment. 905 N.E.2d at 388. At the time of his con-
viction, SORA required that he register as a sex offender for
ten years. Id. at 389. Before the expiration of Jensen’s ten-year
registration requirement, the Indiana General Assembly
amended SORA in 2006 to mandate that offenders like him
register for life. He argued that this extension as applied to
him violated Indiana’s Ex Post Facto Clause, but the Indiana
Supreme Court disagreed. In contrast to Wallace, who had no
obligations before the legislature amended SORA to cover
6 No. 19-2523
him, the “‘broad and sweeping’ disclosure requirements were
in place and applied to Jensen at the time of his guilty plea in
January 2000. Nothing in that regard was changed by the 2006
amendments.” Id. at 394. Increasing only the length of an ex-
isting registration obligation did not rise to the level of “pun-
ishment” such that it violated the Indiana Constitution. Id. at
391–93.
After Jensen, the Indiana Supreme Court continued to fo-
cus on the marginal effects of SORA and its amendments. In
State v. Pollard, 908 N.E.2d 1145 (Ind. 2009), it said that retro-
actively applying a new residency restriction was “adding
punishment.” Id. at 1154. The court’s decision in Lemmon v.
Harris, 949 N.E.2d 803 (Ind. 2011), though, concluded that an
amendment that reclassified someone from a sex offender to
a “sexually violent predator” was not punitive because, just
like for Jensen, it amounted only to an extension of pre-exist-
ing obligations and was not “any more punitive.” Id. at 810–
11, 813 n.19.
Up to this point, each case had asked whether SORA had
a marginal punitive effect compared to those requirements al-
ready imposed by Indiana law. A trio of 2016 cases fleshed out
the retroactive applicability of SORA to offenders whose ini-
tial registration requirements originated in other states. In Ty-
son v. State, the court upheld the registration requirement for
an offender obligated to register under Texas law at the time
of his conviction. 51 N.E.3d at 90. It did so even though his
conviction and Texas registration obligation occurred before
Indiana’s SORA covered his offense. Id. In reaching this result,
the court concluded that the effect of “maintaining a registry
requirement across state lines does not amount to a punitive
burden” in violation of the state constitution. Id.
No. 19-2523 7
The court extended this reasoning in State v. Zerbe, 50
N.E.3d 368 (Ind. 2016). Zerbe was convicted in Michigan in
1992, before either Michigan or Indiana had enacted sex of-
fender registration laws. Id. at 369. Michigan nevertheless re-
quired Zerbe to register upon his release from prison because
Michigan did not share Indiana’s stricter Ex Post Facto Clause
and applied its law retroactively. Id. at 371. This twist changed
nothing: the effect of maintaining that registration in Indiana
was not punitive. Id. at 370–71. As the court clarified, “it is not
Zerbe’s crime that triggers his obligation to register as a sex
offender in Indiana; rather, it is his Michigan registry require-
ment that does so.” Id. at 370. The trilogy concluded with Am-
mons v. State, 50 N.E.3d 143 (Ind. 2016) (per curiam). Ammons
had been convicted in Indiana before the passage of SORA,
but he moved to Iowa, which obligated him to register for his
Indiana crime. Id. When he moved back to Indiana in 2013,
the Indiana Supreme Court confirmed that, just like for Tyson
and Zerbe, maintaining Ammon’s Iowa registration require-
ment for his Indiana crime did not amount to “additional
punishment.” Id. at 145.
To summarize, the question under Indiana’s Ex Post Facto
Clause is whether SORA’s marginal effect is punitive. Main-
taining, extending, or modifying a duty under SORA gener-
ally is not punitive, but imposing a new duty is. It is immate-
rial to the analysis whether Indiana law is maintaining, ex-
tending, or modifying its own duties or those of another state.
Likewise, it is irrelevant where or when the conviction oc-
curred, as long as another state imposed a lawful registration
obligation on the offender and SORA does not so significantly
alter that obligation to result in added punishment.
8 No. 19-2523
C.
Plaintiffs Brian Hope, Gary Snider, Joseph Standish, Adam
Bash, Patrick Rice, and Scott Rush are sex offenders whose
convictions predate the enactment of SORA. With the excep-
tion of Hope, each plaintiff’s conviction occurred in another
state, and all the plaintiffs had to register pursuant to the sex
offender registration laws of another state. Upon moving or
returning to Indiana, the State required the plaintiffs to regis-
ter as sex offenders. The circumstances leading to the plain-
tiffs’ registration obligations under SORA fall into the same
factual patterns addressed by the Indiana Supreme Court in
Zerbe and Ammons.
Hope was charged with child molestation in Indiana in
1993, prior to SORA’s passage, and pleaded guilty. He then
moved to Texas, which required him to register under its law.
As in Ammons, Indiana applied SORA’s requirements to him
upon his return to the State in 2013. Snider, Standish, Bash,
Rice, and Rush mirror Zerbe.2 Each had to register in another
state under its retroactive sex offender registration law and
2 Bash’s and Snider’s cases differ from the earlier Indiana cases in one
significant respect: both moved to Indiana before the 2006 enactment of
the other-jurisdiction provision. In all three of the Indiana cases upholding
the retroactive application of SORA to offenders with out-of-state regis-
tration requirements, the plaintiffs had moved to Indiana after July 1, 2006.
There thus was no question whether Indiana’s Constitution permits retro-
active application of the other-jurisdiction provision. This wrinkle does
not affect the remaining plaintiffs, who moved to Indiana after 2006. And
we ultimately find it nondeterminative in Bash’s and Snider’s cases. On its
face, the provision applies retroactively, and nothing in Indiana Supreme
Court caselaw suggests that the state constitution would forbid this.
No. 19-2523 9
later moved to Indiana, where Indiana required them to reg-
ister under SORA.3
The plaintiffs filed this suit alleging that as applied to
them, SORA violates their right to travel and equal protection
and that it runs afoul of the federal prohibition on ex post
facto laws.4 The plaintiffs articulated the burdens that SORA
places on them in detail. Each of them is subject to SORA’s
more onerous reporting requirements and living and working
restrictions given the nature of their offenses.5 SORA classifies
all the plaintiffs as “offender[s] against children” and as “se-
rious sex offender[s]”; four of them also qualify as “sexually
violent predator[s].” For Snider, Standish, Rush, and Bash
(who has full custody of his minor son), this means that they
cannot attend school functions or parent-teacher conferences
for their children or grandchildren or drive them to school.
Hope, who lacks a residence, has been required to leave a
3 There has been some disagreement throughout this litigation regard-
ing whether Indiana required the plaintiffs to register pursuant to the
other-jurisdiction provision or because they committed registrable of-
fenses under SORA (or substantially similar offenses under the law of an-
other state). Regardless, the State’s view of SORA when enforcing it is not
pertinent to our understanding of the law and the state constitutional lim-
its on it. We determine that SORA obligated each of the plaintiffs to regis-
ter under the other-jurisdiction provision alone.
4The plaintiffs originally filed two lawsuits, which the district court
consolidated.
5 Hope pleaded guilty to child molestation, and Standish pleaded no
contest to attempted sexual contact with a child under 13. Rush was con-
victed of sexual battery of a child under 12 years old. Snider was convicted
of criminal sexual conduct in the first degree (rape), and Rice was con-
victed of aggravated rape. Bash pleaded guilty but mentally ill to rape and
sodomy.
10 No. 19-2523
homeless shelter because it was located within 800 feet of a
park. Snider had to move from the home he shared with his
wife in 2006 because it fell within 1,000 feet of a daycare. Rush
must take a day off work every time he reports. Bash, who
relies on government financial assistance, has at times been
unable to afford SORA’s annual registration fee and been
placed on a payment plan.
The district court granted summary judgment to the plain-
tiffs on all claims and enjoined Indiana from requiring them
to register.6 On appeal, a divided panel of this Court affirmed
the district court’s summary judgment determination based
on the right to travel claim. Hope v. Comm’r of Ind. Dep’t of
Corr., 984 F.3d 532 (7th Cir. 2021). It did not reach the equal
protection or ex post facto claims. We then granted Indiana’s
petition for rehearing en banc and vacated the panel opinion.
We review the district court’s summary judgment deter-
mination de novo, drawing all reasonable inferences in favor
of the nonmovant. Peerless Network, Inc. v. MCI Commc’n Serv.,
Inc., 917 F.3d 538, 545 (7th Cir. 2019). Upon review, we reverse
and remand.
II.
A.
The plaintiffs argue that SORA violates their right to travel
by treating them differently based on their length of residency
in Indiana. We disagree. SORA may affect newer residents
disproportionately, but it does not discriminate based on
6The plaintiffs sued multiple parties, including IDOC and several
county prosecutors and sheriffs in their official capacities. We reference
the defendants collectively as “Indiana” or “the State.”
No. 19-2523 11
residency. Consequently, it does not violate the right to travel
as the Supreme Court has articulated it.
The Supreme Court has identified three components of the
right to travel: (1) “the right of a citizen of one State to enter
and to leave another State,” (2) “the right to be treated as a
welcome visitor rather than an unfriendly alien when tempo-
rarily present in the second State,” and (3) “for those travelers
who elect to become permanent residents, the right to be
treated like other citizens of that State.” Saenz v. Roe, 526 U.S.
489, 500 (1999). Only the third right is at issue here.
That right has evolved over time. Although it is constitu-
tionally safeguarded, there is no mention of a right to travel
in the text of the Constitution. As early as 1872, however, the
Supreme Court recognized this right as protected by the Con-
stitution and has articulated its contours through subsequent
cases. Id. at 503 (tracing the right’s constitutional pedigree).
Throughout that caselaw development, the source of the right
to travel has shifted. In many of its earlier decisions, the Su-
preme Court discussed the right in equal protection parlance.
See, e.g., Zobel v. Williams, 457 U.S. 55, 60 n.6 (1982) (“Right to
travel cases have examined, in equal protection terms, state
distinctions between newcomers and longer term resi-
dents.”). But in its most recent right to travel case, Saenz v. Roe,
the Court underscored that the right is grounded in the Priv-
ileges or Immunities Clause of the Fourteenth Amendment.7
U.S. Const. amend. XIV, § 1; Saenz, 526 U.S. at 502–03.
7The Court has traced the three components of the right to travel to
different parts of the Constitution. It is the third component—the right of
new residents and longer-term residents to be treated alike—that is
12 No. 19-2523
In Saenz, the plaintiffs challenged the constitutionality of a
California statute that limited new residents of one year or
less to only the welfare benefits to which they would have
been entitled in their prior state of residence. 526 U.S. at 492.
The Supreme Court held that this rule violated the third as-
pect of the right to travel. The Court was not concerned with
whether California was trying to penalize or deter travel or
even if it was succeeding. Id. at 504. Instead, the Court found
that “the right to travel embraces the citizen’s right to be
treated equally in her new State of residence” and that “the
discriminatory classification is itself a penalty.” Id. at 505. In
addressing this discrimination, the Court applied strict scru-
tiny, which California’s law failed.8 Id. at 504–05. The duration
of a citizen’s residency and the location of his or her prior res-
idence had no relevance to the citizen’s welfare needs, and the
bare desire to reduce the state’s budget was not compelling
enough to justify a complex layered hierarchy among bona
fide California residents. Id. at 507.
Saenz solidified that laws infringing the right to travel
must pass strict scrutiny. See id. at 504. The full scope of the
right, however, remains uncertain. There have been no Su-
preme Court decisions interpreting the third component of
the right to travel since Saenz. Cases before it held other dura-
tional-residency requirements unlawful but did so under the
covered by the Fourteenth Amendment Privileges or Immunities Clause.
Saenz, 526 U.S. at 502–03. The second component is protected by Article
IV. Id. at 501. The Court has found support for the first component in var-
ious clauses but has not spoken definitively on it. Id.8Like the question of the right to travel’s constitutional footing, opin-
ions discussing the appropriate scrutiny for the right have arrived at dif-
ferent answers. After Saenz, however, we apply strict scrutiny.
No. 19-2523 13
Equal Protection Clause. See, e.g., Memʹl Hosp. v. Maricopa
County, 415 U.S. 250, 251, 261–62 (1974) (striking down a state
law requiring an indigent person to be a county resident for
one year to receive free medical care); Dunn v. Blumstein, 405
U.S. 330, 334–35, 360 (1972) (holding unlawful a state law per-
mitting only residents who have lived in state for one year to
vote); Shapiro v. Thompson, 394 U.S. 618, 622 (1969) (invalidat-
ing statutes that deny welfare assistance to individuals during
their first year of residency). But see Sosna v. Iowa, 419 U.S. 393,
396, 409 (1975) (upholding an Iowa law requiring a resident
to live in state for one year to obtain a divorce decree).
We agree with the plaintiffs, however, that the right to
travel should be understood to go beyond prohibiting only
durational-residency requirements that place a waiting pe-
riod on benefits. It seems unlikely that a permanent distinc-
tion between bona fide residents based on their time residing
in a state would be any more lawful than a temporary one.
The Supreme Court’s cases illustrate this point, although a
majority of the Court has yet to endorse it. In Zobel, Alaska
implemented a natural resource dividend statute that created
“fixed, permanent distinctions between an ever-increasing
number of perpetual classes of concededly bona fide resi-
dents, based on how long they have been in the State.” 457
U.S. at 59. The Supreme Court held that this scheme was im-
proper even under rational basis review. Id. at 64. The Court
did the same thing with a New Mexico tax exemption for Vi-
etnam veterans who were state residents before a specific
date. Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985).
Although the Supreme Court did not directly hold that the
laws at issue in Zobel and Hooper implicated the right to travel,
a plurality of the Court later concluded that the right drove
14 No. 19-2523
those decisions. See Attʹy Gen. of N.Y. v. Soto-Lopez, 476 U.S.
898, 907–08 (1986) (plurality opinion). In the plurality’s view,
“a permanent deprivation of a significant benefit, based only
on the fact of nonresidence at a past point in time, clearly op-
erates to penalize appellees for exercising their right to mi-
grate” and thus mandated strict scrutiny. Id. at 909.
At bottom, the Supreme Court’s decisions in this area
share a defining feature: each involved a rule that explicitly
discriminated between old and new residents. As the Court
noted in Saenz, the challenged classifications were “defined
entirely by (a) the period of residency in California and (b) the
location of the prior residences of the [plaintiffs].” 526 U.S. at
505. Likewise, in Soto-Lopez, the plurality emphasized that
New York had deprived the plaintiffs “of a significant benefit,
based only on the fact of nonresidence at a past point in time.”
476 U.S. at 909. In each case, there has been a direct causal
connection between a person’s status as a new resident and
the deprivation of a benefit. In legal parlance, each involved a
“disparate treatment” claim.
B.
The critical inquiry in this case is whether Indiana’s regis-
tration requirement, as applied consistently with the Indiana
Supreme Court’s marginal-effects test, violates the right to
travel as it has been identified by the Supreme Court. Put an-
other way, we ask whether SORA treats bona fide residents
differently based on when they become residents. It does not.
Neither SORA nor Indiana’s Ex Post Facto Clause discrim-
inates based on residency. As a statutory matter, SORA obli-
gates all offenders—both old and new residents—to register
based on prior convictions. Indiana’s Ex Post Facto Clause
No. 19-2523 15
then relieves a subset of those who must register from that
statutory obligation. Receiving the clause’s benefits, though,
does not depend on when an offender became an Indiana res-
ident but on whether one is subject to an existing registration
requirement. That requirement can come from Indiana, Jen-
sen, 905 N.E.2d at 391–93, or from another state, Tyson, 51
N.E.3d at 90. The twist in this case is that for those offenders
like the plaintiffs, convicted before Indiana’s SORA covered
their crimes, such a registration obligation must come from
elsewhere.
The dissent takes issue with this feature of SORA but con-
cedes that unlike Saenz and its predecessors, SORA has nei-
ther a durational-residency requirement nor a true, fixed-
point residency scheme. That distinction is fatal to the plain-
tiffs’ claim. Right to travel violations under the third compo-
nent of the right exist only when a law expressly differentiates
between residents based on their length or timing of resi-
dency. SORA does neither.
Instead, the dissent notes that SORA “does take notice of
an individual’s treatment in another jurisdiction” and argues
that it thus “necessarily implicates his travel history.” While
true, that does not constitute a violation of the right to travel.
The third component of the right—which the parties agree is
the only aspect at issue in this appeal—deals only with dis-
crimination based on residency. It is not triggered by every
law that tangentially relates to a person’s travel to or from an-
other state.
In the absence of a true durational-residency requirement
or any discriminatory purpose, the plaintiffs look to the effect
of SORA on newer residents. As a practical effect of Indiana’s
SORA, the plaintiffs argue, out-of-state residency is a
16 No. 19-2523
determinative factor for them and similar offenders. Un-
doubtedly having a registration obligation in another state is
correlated with changing one’s state of residence, as we can
see not only from the six plaintiffs here but also from those in
Tyson, Zerbe, and Ammons, all of whom had to register after
moving to Indiana. But the correlation is imperfect. Some life-
long Indiana residents who committed crimes before SORA
might well have a registration obligation based on their em-
ployment or schooling in an adjacent state. See, e.g., 730 ILCS
150/3(a-5) (requiring out-of-state students or employees to
register in Illinois). The inverse is also true: some new Indiana
residents who committed their crimes elsewhere might have
no registration requirement in their prior state because of
state-law protection against retroactivity. See, e.g., Doe v. State,
189 P.3d 999, 1004 (Alaska 2008) (holding that the state’s Ex
Post Facto Clause prohibits retroactive application of SORA).
While prior, out-of-state residency is often an element in the
application of SORA’s registration requirements, residency is
not the trigger for the other-jurisdiction provision.
The dissent acknowledges this but suggests that the law
may still be unconstitutional even though some new residents
are not adversely affected by SORA’s requirements. For sup-
port, the dissent looks to Saenz. There, the Supreme Court
struck down the law, even though some of the new residents
received welfare benefits on equal footing as long-term Cali-
fornians. Saenz, 526 U.S. at 497. What mattered, the Court con-
cluded, was that California explicitly based its provision of
benefits to new Californians—favorable or not—on the dura-
tion of their residence in California. Id. at 497, 505. The upshot
of the dissent’s Saenz analogy is that SORA likewise cannot be
saved by the fact that some new Hoosiers may not be subject
to the registration requirements while some lifelong Hoosiers
No. 19-2523 17
may be covered. That is a false equivalence. California em-
ployed an express, durational-residency classification; it ap-
plied to all persons who had resided in California for less than
a year and happened to produce a favorable effect for some of
them. In contrast, as the dissent admits, SORA by its terms
does not base its application on any length of residency in In-
diana. New Indiana residents who arrive in Indiana without
any prior registration requirements do not experience a favor-
able effect under SORA—the law simply does not apply to
them at all. In sum, Saenz involved a discriminatory test that
some new residents passed, while SORA involves a nondis-
criminatory test that some new residents fail.
Prior, out-of-state residency represents neither causation
nor perfect correlation for the application of SORA’s registra-
tion requirements, and there is no evidence that anyone in In-
diana intended to deter travel through the other-jurisdiction
provision. The result? Only a disparate-impact claim re-
mains—an argument that, as a practical matter, more new res-
idents than old residents must register under the law. The dif-
ficulty with that approach, though, is that the Supreme Court
has never extended the right to travel this far. Cf. Washington
v. Davis, 426 U.S. 229, 239 (1976) (holding that only disparate
treatment or discriminatory purpose violates the Equal Pro-
tection Clause). To the contrary, every Supreme Court case in-
volving a violation of the right to travel has featured a law
that expressly imposes either a durational-residency require-
ment or a fixed-point residency restriction. See, e.g., Saenz, 526
U.S. at 505; Soto-Lopez, 476 U.S. at 905; Hooper, 472 U.S. at 621–
22; Zobel, 457 U.S. at 57; Mem’l Hosp., 415 U.S. at 251, 261–62;
Dunn, 405 U.S. at 334–35, 360. This case does not involve such
a disparate treatment claim.
18 No. 19-2523
The dissent’s approach thus expands the right to travel to
an unprecedented extent. And it does so through a legal anal-
ysis that the Court has rejected repeatedly in the analogous
Fourteenth Amendment equal protection context. Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–
65 (1977) (“[O]fficial action will not be held unconstitutional
solely because it results in a racially disproportionate im-
pact.”); see also Washington, 426 U.S. at 242. Equal protection
jurisprudence is unequivocal: the only relevant consideration
is a law’s express categorization and any discriminatory pur-
pose. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 207
(2008) (Scalia, J., concurring).
The Supreme Court has never indicated that the neighbor-
ing Fourteenth Amendment Privileges or Immunities Clause
ought to be evaluated differently, and it is difficult to justify
such a distinction. It would be strange indeed if a law that
created a disparate impact based on race would be subject to
less exacting scrutiny than laws with a disparate impact on
the right to travel. Further, one of the primary bases that the
Supreme Court gave for rejecting disparate-impact theory—
the potential invalidation of many neutral laws—applies with
equal force in the right to travel context. See Washington, 426
U.S. at 248 (observing that a disparate-impact approach to
equal protection claims “would be far-reaching and would
raise serious questions about, and perhaps invalidate, a whole
range of tax, welfare, public service, regulatory, and licensing
statutes”). There is no reason for permitting disparate-impact
theory in one context but not the other, especially given how
No. 19-2523 19
historically intertwined the Supreme Court’s right to travel
jurisprudence has been with the Equal Protection Clause.9
The Third Circuit has actively refused to take this step. In
Connelly v. Steel Valley School District, 706 F.3d 209 (3d Cir.
2013), a Pennsylvania school district set its teachers’ salaries
based on years of teaching experience but gave full credit for
years teaching in the district, partial credit for years teaching
in Pennsylvania, and reduced credit for years teaching else-
where. Id. at 211–12. A teacher who taught for nine years in
Maryland and received one year of credit argued that the
school district’s salary scheme violated his right to travel. Id.
at 213. The Third Circuit recognized that the district was not
discriminating based on duration of residency but on location
of teaching experience. Id. at 214. A lifelong Pennsylvania res-
ident who taught across the border in Maryland would have
received the same treatment as a similar Maryland resident
who moved to Pennsylvania. Id. at 214–15. In the Third Cir-
cuit’s view, “[t]he right to travel simply is not implicated
when there is no discrimination based on the duration of
one’s residency.” Id. at 215. We agree.
There are good reasons for limiting the right to travel to
disparate treatment claims, as we recognized more than a dec-
ade before Saenz. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984),
we rejected the suggestion that laws with a disproportionate
impact on new residents violate the right to travel. Sklar pre-
sented a right to travel objection to an ordinance banning
9 Recall that prior to Saenz, the Supreme Court often positioned the
right to travel within the Equal Protection Clause. See Zobel, 457 U.S. at 60
n.6.
20 No. 19-2523
unregistered handguns in the City of Chicago. Because one
needed to be a Chicago resident to register a handgun for law-
ful possession—and Chicago stopped new registrations after
1982—Sklar argued that the ordinance violated the right to
travel. Id. We explained then that this could not be how the
right to travel functions, for applying strict scrutiny “based
merely on a showing that newer residents would not benefit”
would make huge swaths of the law vulnerable. Id. at 639. As
in Sklar, the plaintiffs here want to apply strict scrutiny on the
showing that they, as new residents, are “merely one group
among several who do not benefit” from the protections of
Indiana’s Ex Post Facto Clause. Id. at 639. We refused the in-
vitation in 1984 and decline it again today.
The Privileges or Immunities Clause of the Fourteenth
Amendment simply does not prohibit a state from inci-
dentally burdening travel to or from the state. It guarantees
only “the right of the newly arrived citizen to the same privi-
leges and immunities enjoyed by other citizens of the same
State.” Saenz, 526 U.S. at 502. Because both old and new Indi-
ana residents are treated equally under SORA and Indiana’s
Ex Post Facto Clause, we hold that the law does not violate
plaintiffs’ right to travel.
III.
The plaintiffs’ equal protection claim is closely inter-
twined with their right to travel claim, but it remains distinct.
Equal protection and right to travel claims require independ-
ent analyses—even when the basis for the claims is identical.
Under the Privileges or Immunities Clause, if the right to
travel is not implicated, that is the end of the plaintiffs’ claim.
The challenged law either is reviewed under strict scrutiny or
not at all. Under the Equal Protection Clause, by contrast,
No. 19-2523 21
failure to trigger heightened scrutiny does not end the claim.
Courts still review the challenged law to ensure that the state
has a rational basis for treating similarly situated people dif-
ferently. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
The Fourteenth Amendment’s Equal Protection Clause
guarantees that “No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. Unlike the right to travel, which requires
strict scrutiny when implicated, the standard of review ap-
plied to laws in equal protection cases varies. We apply strict
scrutiny to a law if the plaintiffs’ unequal treatment is based
on membership in a protected class—race, national origin, re-
ligion, or alienage—or denial of a fundamental right. St. Joan
Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003,
1008 (7th Cir. 2019). When a plaintiff’s unequal treatment is
premised on a quasi-suspect classification, like gender, we ap-
ply intermediate scrutiny. Id. at 1008 n.3. In all other cases,
courts default to rational basis review. Id. at 1008.
Here, plaintiffs argue that the district court correctly ap-
plied strict scrutiny when it evaluated SORA. That is because
their equal protection theory assumes that SORA violates a
fundamental right—the right to travel. We have already held
that it does not. SORA treats the plaintiffs differently from
other, pre-SORA offenders based on their out-of-state regis-
tration requirements—not based on their length of residency.
Because Indiana’s treatment of the plaintiffs is not based on
their membership in a protected class or the denial of a fun-
damental right, strict scrutiny is inapplicable. Nor does inter-
mediate scrutiny apply. Neither gender nor any other quasi-
suspect class serves as the catalyst for the plaintiffs’ differen-
tial treatment under SORA.
22 No. 19-2523
Our determination that heightened scrutiny is inapplica-
ble is not fatal to their equal protection claim, however. It just
means that SORA will be assessed under rational basis re-
view. The plaintiffs may still challenge Indiana’s application
of SORA to them because it treats them differently than simi-
larly situated Indiana offenders. SORA, as modified by the In-
diana Supreme Court’s constitutional overlay, creates two
classes of pre-SORA offenders—those who must register in
Indiana, and those who are free from that requirement. Indi-
ana distinguishes between the two groups based solely on
whether the pre-SORA offender had a registration obligation
in another state. For example: two lifelong Indiana residents,
both with pre-SORA convictions, will be treated differently if
one commutes into Chicago for work—and so is subject to Il-
linois’s reporting requirements—while the other never leaves
Indiana. The distinction holds true for offenders who attend
school in another state or who have lived in another state im-
posing registration obligations on them. In short, two simi-
larly situated Indiana offenders may have vastly different le-
gal obligations simply because one of them has an out-of-state
registration obligation. The question is whether Indiana’s dif-
ferential treatment on this basis is rationally related to a legit-
imate government purpose. See Armour v. City of Indianapolis,
Ind., 566 U.S. 673, 680 (2012); FCC, 508 U.S. at 313 (“[A] statu-
tory classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be up-
held against equal protection challenge if there is any reason-
ably conceivable state of facts that could provide a rational
basis for the classification.”).
Because the district court did not address whether SORA
satisfies rational basis review, we remand the equal protection
claim for this purpose. In doing so, we stress that this review
No. 19-2523 23
should be undertaken with care and that the district court
should thoroughly develop the factual record on this score.
Rational basis review favors the State but does not ensure an
automatic win. See, e.g., Allegheny Pittsburgh Coal Co. v. Cnty.
Comm’n, 488 U.S. 336 (1989) (invalidating a tax assessment on
equal protection grounds for failing rational basis review).
IV.
The plaintiffs’ final claim is an ex post facto challenge to
SORA. Because we determine that SORA is not a punitive
statute, it does not violate the federal Ex Post Facto Clause.
Article I, section 10, clause 1 of the United States Constitu-
tion prohibits states from passing ex post facto laws—those
which “retroactively alter the definition of crimes or increase
the punishment for criminal acts.” Cal. Dep’t of Corr. v. Mo-
rales, 514 U.S. 499, 504 (1995) (quoting Calder v. Bull, 3 U.S.
(Dall.) 386, 391–92 (1798)). Statutes that transgress the Ex Post
Facto Clause, then, share two characteristics: They are “both
retroactive and penal.” Vasquez v. Foxx, 895 F.3d 515, 520 (7th
Cir. 2018); see also Johnson v. United States, 529 U.S. 694, 699
(2000).
There is tension in the caselaw regarding the requirements
of the retroactivity prong. Compare United States v. Leach, 639
F.3d 769, 773 (7th Cir. 2011) (deciding that SORAs are pro-
spective regardless of their reach because they “merely cre-
ate[] new, prospective legal obligations based on the person’s
prior history”), with Does #1-5 v. Snyder, 834 F.3d 696, 698 (6th
Cir. 2016) (holding Michigan’s version of SORA retroactive
because it applied to offenders convicted prior to the law’s
enactment), and Shaw v. Patton, 823 F.3d 556, 560 (10th Cir.
2016) (holding the same with respect to Oklahoma’s version
24 No. 19-2523
of SORA). While we recognize this tension, we need not—and
do not—revisit our decisions on retroactivity at this time.
Here, the plaintiffs did not ask us to overrule our prior deci-
sions, and their ex post facto challenge fails regardless be-
cause SORA is not punitive.
In determining whether a statute is punitive, Smith v. Doe
is our guidepost. There, the Supreme Court addressed
whether Alaska’s sex offender registration and notification
law violated the federal Ex Post Facto Clause. The Court ap-
plied what is commonly called the intent-effects test to hold
that Alaska’s sex offender registration act was not punitive.
Smith, 538 U.S. at 105–06. Applying that two-step standard,
courts first query whether the legislature intended to enact a
punitive, rather than a civil, law. If not, the inquiry becomes
whether the law is “so punitive either in purpose or effect as
to negate [the State’s] intention to deem it civil.” Id. at 92 (in-
ternal quotation and citation omitted). To assess a law’s ef-
fects, Smith considered five of the factors originally articulated
in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Those fac-
tors are “whether, in its necessary operation, the regulatory
scheme: [1] has been regarded in our history and traditions as
a punishment; [2] imposes an affirmative disability or re-
straint; [3] promotes the traditional aims of punishment; [4]
has a rational connection to a nonpunitive purpose; or [5] is
excessive with respect to this purpose.” Smith, 538 U.S. at 97.
This is a challenging standard for plaintiffs. When as-
sessing whether a law is punitive, “we ordinarily defer to the
legislature’s stated intent.” Kansas v. Hendricks, 521 U.S. 346,
361 (1997). If the legislative intent is to enact a civil law, only
the “clearest proof that the statutory scheme is so punitive in
either purpose or effect” will suffice to override it. Seling v.
No. 19-2523 25
Young, 531 U.S. 250, 261 (2001); Hudson v. United States, 522
U.S. 93, 104 (1997); see also Smith, 538 U.S. at 92.
The plaintiffs have conceded that Indiana intended to en-
act a civil, regulatory scheme when it passed SORA. We thus
consider only whether SORA is so punitive in effect as to over-
ride Indiana’s nonpunitive intent. To that end, we address the
Mendoza-Martinez factors in turn.
1. Historical and traditional forms of punishment
Plaintiffs present three historical forms of punishment—
shaming, banishment, and parole/probation—and argue that
SORA’s requirements are tantamount to these sanctions. All
three comparators suffer the same infirmity: SORA does not
actually inflict what is historically and traditionally consid-
ered punishment.
The plaintiffs first argue that SORA’s publication of their
classifications—such as “sexually violent offender” or “of-
fender against children”—is “designed to outrage” and stig-
matizes without a present assessment of individual danger-
ousness. In this regard, SORA goes further than the statute in
Smith, which assigned no categorical labels to offenders. But
SORA’s classification scheme falls short of public shaming for
the same reason as the Alaska statute in Smith. Indiana classi-
fies offenders based on offense type and in doing so, transmits
accurate information about the underlying conviction—a
matter of public record. To the extent that stigma results, it
arises “not from public display for ridicule and shaming but
from the dissemination of accurate information about a crim-
inal record.” Smith, 538 U.S. at 98. But see Does #1-5, 834 F.3d
at 703 (concluding that the “ignominy” results from the stat-
ute’s application of labels, not from conviction information).
26 No. 19-2523
The plaintiffs also suggest that SORA’s residency re-
strictions are akin to banishment, but we rejected this asser-
tion when evaluating the Illinois sex offender registration
statute. Vasquez, 895 F.3d at 521. We reasoned that although
residency restrictions limit offenders’ living and employment
options, they do not amount to banishment—which tradition-
ally meant that persons “could neither return to their original
community nor … be admitted easily into a new one.” Id. (in-
ternal quotation and citation omitted). The plaintiffs
acknowledge our precedent but note that the Indiana re-
striction is 500 feet greater than the Illinois restriction. The dif-
ference between a 500- and 1,000-foot residency restriction is
not constitutionally significant, however, because it does not
render SORA’s requirements any more similar to banishment.
Lastly, the plaintiffs contend that SORA’s restrictions on
where they may live or work, in tandem with its in-person
reporting requirements, make it analogous to parole or pro-
bation. This is a closer call. In Smith, the Supreme Court
acknowledged that a comparison between the Alaska statute
and parole “has some force.” Smith, 538 U.S. at 101. Even so,
the Court held that the statute was distinguishable because it
lacked two key characteristics of parole: (1) mandatory condi-
tions, and (2) the option for a supervisor “to seek the revoca-
tion of probation or release in case of infraction.” Id. The Court
emphasized that Alaska’s reporting requirements were not
in-person and that offenders could “move where they wish”
and live and work without supervision. Id. SORA differs from
the Alaska statute on these points.10 We conclude, however,
10
While SORA employs mechanisms like those used in parole and
probation, we note that it does not subject offenders to the same degree of
No. 19-2523 27
that it is still distinct from parole because it lacks the second
defining feature of parole discussed by Smith. To be sure,
plaintiffs may face criminal prosecution for failure to comply
with reporting requirements. But that would be a conse-
quence distinct from the plaintiffs’ original offenses; parole
and the supervisor’s ability to seek revocation of it are tied to
the terms of the original offense. A sex offender who violates
SORA is not subject to revocation—but rather a new criminal
prosecution for violating state law. Shaw, 823 F.3d at 566. But
see Snyder, 834 F.3d at 703. Thus, a sex offender covered by
SORA is not under the same type of supervision as a parolee.
On balance, SORA’s requirements do not amount to tradi-
tional forms of punishment. So, this factor, while close, tips in
favor of Indiana.
2. Affirmative disabilities or restraints
The next factor considers whether SORA subjects the
plaintiffs to an “affirmative disability or restraint.” Mendoza-
Martinez, 372 U.S. at 168. The boundaries of this factor are un-
defined. The Alaska law in Smith required offenders to regis-
ter and mandated reporting of any changes to facial features
or plans to borrow a car or procure psychiatric treatment.
Smith, 538 U.S. at 101. The Court held that these requirements
scrutiny or control. See Vasquez, 895 F.3d at 521 (concluding that Illinois’s
SORA, despite limiting where offenders could live, did not resemble the
“comprehensive control” of probation). For example, SORA entails some
supervision—law enforcement officers must do annual check-ins to verify
an offender’s physical address—but this differs in degree and type from
the monitoring of parolees and probationers. See Shaw, 823 F.3d at 564–65
(“Historically, a probation officer took a far more active role in a proba-
tioner’s life than simply collecting information for a database.”).
28 No. 19-2523
“make a valid regulatory program effective and do not im-
pose punitive restraints.” Id. at 102. In doing so, the Court un-
derscored that the statute “imposes no physical restraint, and
so does not resemble the punishment of imprisonment, which
is the paradigmatic affirmative disability or restraint.” Id. at
100. It also emphasized that the “Act’s obligations are less
harsh than the sanctions of occupational debarment, which
we have held to be nonpunitive.” Id. While the Court ob-
served that Alaska’s SORA did not require in-person report-
ing or restrict offenders’ ability to change jobs or residences,
the Court gave no indication whether such requirements
would constitute punitive disabilities or restraints. Id. at 100–
01.
Outside the “paradigmatic” example of physical restraint,
it is not evident what statutory requirements amount to a re-
straint or disability. What is clear is that very few burdens are
significant enough to tip the scale. See, e.g., Hudson, 522 U.S.
at 104 (monetary fine and occupational debarment are not af-
firmative disabilities or restraints “as that term is normally
understood”); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (de-
nial of a noncontractual government benefit is not an affirma-
tive disability or restraint); see also Vasquez, 895 F.3d at 522
(“[L]ike the registration scheme at issue in Smith, the resi-
dency law imposes no physical restraint[] and so does not re-
semble the punishment of imprisonment, which is the para-
digmatic affirmative disability or restraint.” (internal quota-
tion and citation omitted)). Even when the Supreme Court
confronted a state law imposing a paradigmatic form of re-
straint—involuntary confinement—the Court held that this
did not make the law punitive. Hendricks, 521 U.S. at 363.
Here, it is sufficient to note that to the extent that SORA’s ob-
ligations amount to restraints or disabilities, standing alone
No. 19-2523 29
they are not sufficiently severe in view of Supreme Court
precedent to make SORA punitive.
3. Promotion of traditional aims of punishment
Plaintiffs next suggest that SORA has punitive aims—spe-
cifically, incapacitation, deterrence, and retribution. The Su-
preme Court has rejected these arguments in the context of
other sex offender registration laws, however. See, e.g., Smith,
538 U.S. at 102 (“Any number of governmental programs
might deter crime without imposing punishment.”); Hudson,
522 U.S. at 104–05 (holding that the involuntary commitment
of a child sex offender was not retributive because prior con-
viction was used as evidence of future dangerousness, not to
assign culpability). We similarly were unpersuaded that the
residency restrictions at issue in Vasquez furthered traditional
punitive aims in lieu of the Illinois SORA’s “obvious aim” to
“protect children.” Vasquez, 895 F.3d at 522. The Sixth Circuit
has also “accordingly give[n] this factor little weight,” recog-
nizing that civil statutes often pursue these aims, too. Does #1-
5, 834 F.3d at 704. Because the plaintiffs have failed to show
why the analyses in these cases do not apply with equal force
to the same arguments that they raise here, this factor favors
Indiana.
4. Rational connection to a nonpunitive purpose
Whether the law has a “rational connection to a nonpuni-
tive purpose” is “a most significant factor in our determina-
tion that the statute’s effects” are not punitive. Smith, 538 U.S.
at 102 (internal quotation and citation omitted). We begin by
identifying a nonpunitive purpose and then turn to whether
the law’s requirements are rationally connected to that goal.
30 No. 19-2523
One aim of SORA is to advance public safety, particularly
for vulnerable minors. See Smith, 538 U.S. at 93 (“[A]n impo-
sition of restrictive measures on sex offenders adjudged to be
dangerous is a legitimate nonpunitive governmental objective
and has been historically so regarded.” (internal quotation
and citation omitted)). No one disputes this nonpunitive pur-
pose. The disagreement centers instead on whether SORA’s
requirements are rationally related to that aim. We are satis-
fied that they are.
Laws that result in consequences for offenders’ prior con-
duct are not automatically punitive if they are connected to a
regulatory purpose that falls within the power of the state,
such as public safety. Flemming, 363 U.S. at 616. Deportation,
for example, is “an exercise of the plenary [power] of Con-
gress to fix the conditions under which aliens are permitted to
enter and remain in this country.” Id. While it presents a con-
sequence for people who have unlawfully entered the United
States, that does not convert a lawful exercise of congressional
power into a punishment. Similarly, the Supreme Court has
held that excluding former felons from practicing a profession
“is an incident of the State’s power to protect the health and
safety of its citizens”—“not a purpose to add to the punish-
ment of ex-felons.” Id. So, too, here. SORA’s registration re-
quirements rationally relate to Indiana’s power to protect the
safety of its citizens, despite its burden on sex offenders. See
Shaw, 823 F.3d at 572 (explaining that Oklahoma’s “reporting
requirements are also consistent with a non-punitive intent—
promoting public safety—by facilitating law enforcement’s
identification of sex offenders and notification to the public of
potential dangers”). This critical factor supports Indiana.
No. 19-2523 31
5. Excessive with respect to that purpose
The touchpoint for the excessiveness factor is “whether the
regulatory means chosen are reasonable in light of the nonpu-
nitive objective,” not whether “the legislature has made the
best choice possible to address the problem it seeks to rem-
edy.” Smith, 538 U.S. at 105. The burden is on the plaintiff to
establish that the law’s “nonpunitive purpose is a sham or
mere pretext.” Id. at 103 (internal quotation and citation omit-
ted).
While the plaintiffs proffer several arguments on this fac-
tor, they fall short of meeting their burden. First, they contend
that SORA does not further its goal, making its requirements
excessive. The plaintiffs cite a study showing that sex offend-
ers do not recidivate at higher rates than other felons. The im-
plication is that SORA’s registration requirements will not
bolster public safety because sex offenders do not present an
outsized threat. This conclusion is flawed. The plaintiffs’
study does not establish that sex offenders pose little risk to
the public, just that their risk of reoffending is similar to that
of other ex-felons. See Vasquez, 895 F.3d at 522 (“[S]imilar re-
cidivism rates across different categories of crime would not
establish that the nonpunitive aim of this statute—protecting
children—is a sham.”).
The plaintiffs also take issue with SORA’s application to
all offenders “without regard to their future dangerousness.”
But the Supreme Court “has upheld against ex post facto chal-
lenges laws imposing regulatory burdens on individuals con-
victed of crimes without any corresponding risk assessment.”
Smith, 538 U.S. at 104; see, e.g., De Veau v. Braisted, 363 U.S. 144,
159–60 (1960) (plurality opinion) (upholding a law that pro-
hibited former felons from working as union officers).
32 No. 19-2523
Although Smith recognized that the “magnitude of the re-
straint” could require individual assessments in some cases,
such cases are the exception. Smith, 538 U.S. at 104 (discussing
the involuntary and potentially indefinite confinement at is-
sue in Hendricks as one example). Indiana is not required to
make individualized judgments before imposing its registra-
tion requirements. This factor favors Indiana.
***
At best, the plaintiffs have shown that SORA partially re-
sembles one historical punishment and may place some af-
firmative restraints or disabilities on them. The remaining fac-
tors, including the law’s rational relation to a nonpunitive
purpose, all support Indiana. The plaintiffs have not carried
their heavy burden of proving that SORA is so punitive in ef-
fect as to override the Indiana legislature’s intent to enact a
civil law. As the plaintiffs acknowledge, “the Alaska statute at
issue in [Smith] shares several core provisions with Indiana’s
SORA.” While SORA goes farther than the Alaska law in
some respects, it is not so far afield as to warrant a different
outcome than in Smith.
V.
We hold that Indiana’s SORA neither violates plaintiffs’
right to travel nor constitutes an impermissible ex post facto
law. Accordingly, we reverse the district court’s entry of sum-
mary judgment and remand for further analysis of the equal
protection claim consistent with this opinion.
REVERSED AND REMANDED
No. 19-2523 33
SCUDDER, Circuit Judge, concurring. I join the majority
opinion and write separately to address one aspect of the
opinion—the retroactivity inquiry of the Ex Post Facto Clause.
Our case law on the retroactivity prong needs a course cor-
rection. See Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018); United
States v. Leach, 639 F.3d 769 (7th Cir. 2011). The pertinent ret-
roactivity inquiry is whether the law “imposes a punishment
for an act which was not punishable at the time it was com-
mitted; or imposes additional punishment to that then pre-
scribed.” Carmell v. Texas, 529 U.S. 513, 540 (2000) (quoting
Cummings v. Missouri, 71 U.S. 277, 325–26 (1867) (internal quo-
tation marks omitted)).
But in Leach we suggested otherwise, determining that the
federal SORNA was not impermissibly retroactive because it
“merely creates new, prospective legal obligations based on
the person’s prior history.” 639 F.3d at 773; see also Vasquez,
895 F.3d at 520 (applying Leach’s retroactivity holding to Illi-
nois’s SORA). Though this observation about how SORNA
functions is descriptively correct, it misses the mark on the
retroactivity inquiry. What Leach and Vasquez failed to account
for is that the registration obligations did not apply at the time
the sex offenders committed the offenses triggering registra-
tion—meaning that the sex offender registration laws im-
posed obligations beyond those prescribed at the time of the
offense.
The majority opinion acknowledges this tension in our
case law but stops short of fixing it. See Maj. Op. 23. I would
take the next step and use today’s decision to align our law
with Supreme Court precedent. The issue is sure to surface in
future cases and our sitting en banc provides the perfect op-
portunity for the full court to issue the course correction.
34 No. 19-2523
There is no question that the obligations imposed by Indiana’s
SORA on the six plaintiffs in this case apply retroactively, and
we should use today’s decision to say so.
No. 19-2523 35
ROVNER, Circuit Judge, with whom WOOD and HAMILTON,
Circuit Judges, join, concurring in part and dissenting in part.
I join all but Part II of the court’s opinion today. I remain con-
vinced that Indiana’s other jurisdiction provision 1 deprives
the plaintiffs of state citizenship on equal terms with other In-
diana residents and in so doing violates their right to travel. I
therefore dissent from that part of the court’s decision.
1.
Encompassed within the right to travel is the right to relo-
cate from one state to another and, upon establishing bona
fide residence in a new state, to enjoy the same privileges and
immunities as any other citizen of that state. Saenz v. Roe, 526
U.S. 489, 502, 119 S. Ct. 1518, 1526 (1999). Each of the six plain-
tiffs in this case has been denied the benefit of Indiana’s ex post
facto provision 2 that a similarly-situated, but lifelong Indiana
resident would receive. Because each of the plaintiffs commit-
ted a sex offense before Indiana attached a registration obli-
gation to that crime, the Indiana Supreme Court’s decision in
Wallace precludes the State from relying on their convictions
as the basis for requiring them to register. Wallace v. State, 905
N.E.2d 371, 384 (Ind. 2009). What Indiana has done instead is
to rely on the fact that each of the plaintiffs previously was
required to register in another state as the basis for imposing
its own registration obligation on them. Had any of the
1 See Ind. Code § 11-8-8-4.5(b)(1) (defining “sex offender” who must
register in Indiana to include “a person who is required to register as a sex
offender in any jurisdiction”); § 11-8-8-5(b)(1) (similarly defining “sex or
violent offender” who must register).
2 Ind. Const., art. 1, § 24 (“No ex post facto law … shall ever be passed.”).
36 No. 19-2523
plaintiffs been a resident of Indiana at the time of his offense
and never traveled anywhere that burdened him with a duty
to register, Indiana itself would not have imposed such a bur-
den on him. It is thus only their travel—in this case, relocation
from another state to Indiana—that renders them subject to a
registration obligation in Indiana. This sets up the very sort of
tiered classes of state citizenship that the Supreme Court’s
travel jurisprudence forbids. 3 The fact that a lifelong Indiana
resident may also incur an obligation to register in Indiana by
working or studying in another state that imposes such a duty
on him does not obviate the problem; it simply makes clear
that Indiana is relying on the fortuity of a person’s travel to
burden its citizen with an obligation that it would not other-
wise impose.
At bottom, what Indiana is doing is assigning differential
obligations to its citizens based not on what they have done
but where they have been. It is relying on another state’s han-
dling of a particular criminal history to determine how that
3 The number of individuals who can assert the particular right-to-
travel claim the plaintiffs are asserting in this case is necessarily limited
and dwindling. Anyone convicted of a sex offense since the mid-1990s or
later (i.e., after registration requirements were first adopted in Indiana and
elsewhere) will likely be subject to registration in Indiana based on their
criminal histories. Wallace only poses an obstacle to imposing registration
obligations on someone convicted before Indiana made his crime (or its
out-of-state equivalent) a registrable offense. So, with respect to the vast
majority of offenders, Indiana will not have to rely on the other jurisdic-
tion requirement as it must with respect to the six plaintiffs in this case, all
of whom were convicted in 1994 or earlier and are now in their fifties or
sixties.
No. 19-2523 37
individual will be treated in Indiana. So a sex offender whose
crime would not otherwise trigger a registration obligation as
a matter of Indiana law will nonetheless be required to regis-
ter because another state, as a matter of its own law, required
him to register so long as he lived, worked, or studied in that
state. Indiana thus is relying on another state’s legal rules to
circumscribe his rights as an Indiana citizen. This is incompat-
ible with the holdings and the logic of the Supreme Court’s
right-to-travel cases.
2.
One point should be made clear at the outset: In taking
notice that another state has imposed a registration obligation
on one of its citizens, Indiana is not purporting to enforce an-
other state’s judgment or to implement the registration obli-
gation that state has imposed. This would be a very different
case if that were the aim and effect of Indiana’s other jurisdic-
tion provision. But it is not. Indiana instead is relying on the
historical fact that another state required an offender to regis-
ter there (whenever and for however long) as the basis for im-
posing its own registration obligation on one of its citizens. See
State v. Zerbe, 50 N.E.3d 368, 370 (Ind. 2016) (“it is not Zerbe’s
crime that triggers his obligation to register as a sex offender
in Indiana; rather it is his Michigan registry requirement that
does so”) (emphasis in original). This new obligation is not in
any way tethered to the life of the registration obligation im-
posed by the other state. It is not as if, for example, an offender
who was required by California to register for a period of 10
years and seven years into that obligation moves to Indiana
will now have to register for an additional three years in In-
diana in order to complete the 10-year term that California
imposed. It does not matter to Indiana’s other jurisdiction
38 No. 19-2523
provision for how long an offender was required to register
in another state or when that obligation expires. It only mat-
ters to Indiana’s registration scheme that there was a prior ob-
ligation, period. And how lengthy the new registration obli-
gation will be in Indiana is a matter answered by Indiana law.
Thus, whereas the other state may only have required an of-
fender to register for a period of years, Indiana may require
him to register for the remainder of his life. Take plaintiff Pat-
rick Rice, for example. Based on his 1989 conviction for aggra-
vated sexual assault, Rice was required by Illinois to register
for a period of 10 years upon his release from prison in 2017,
but when he subsequently relocated to Indiana to live with
his sister, Indiana imposed a lifetime registration obligation
on him, because his Illinois offense makes him a “sexually vi-
olent predator” under Indiana law. Cf. Jensen v. State, 905
N.E.2d 384, 394 (Ind. 2009) (statutory revisions to registration
scheme which have effect of lengthening Indiana offender’s
existing registration obligation from 10 years to life do not
amount to ex post facto violation).
So in no sense is this case one about the enforceability of
another state’s judgment or the comity that Indiana must af-
ford to that judgment. Indiana is simply relying on an of-
fender’s registration history in another state as the basis for
implementing its own, independent duty to register in Indi-
ana. And it is doing so in circumstances where the offender’s
criminal history itself would not trigger a registration obliga-
tion as a matter of Indiana law.
Over the course of this litigation, Indiana has cited two re-
lated reasons for relying on a prior registration obligation im-
posed elsewhere as the basis for imposing a duty to register
in Indiana. First, Indiana is concerned that it not become a
No. 19-2523 39
haven for sex offenders who, like the plaintiffs here, commit-
ted sex offenses before those offenses became subject to regis-
tration in Indiana and whom the state, under Wallace, cannot
require to register based on that criminal history. Second, In-
diana is using the other jurisdiction requirement as a second-
ary, catchall criterion for requiring registration of individuals
whose particular crimes happen not to fall within any of the
categories of offenses that the Indiana legislature has thus far
identified as crimes requiring registration.
It goes without saying that Indiana has a legitimate inter-
est in implementing registration obligations as a means of
protecting its citizenry from individuals who might repeat
their prior sex offenses. I can also appreciate the state’s wish
not to allow an offender to escape a duty to register in Indiana
simply because his specific sex offense is not one that the leg-
islature thought to identify in the drafting process as one war-
ranting registration. But see Edwards v. California, 314 U.S. 160,
173, 62 S. Ct. 164, 167 (1941) (“no boundar[y] to the permissi-
ble area of State legislative activity … is more certain than the
prohibition against attempts on the part of any single State to
isolate itself from difficulties common to all of them by re-
straining the transportation of persons and property across its
borders”); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322,
1329 (1969) (“the purpose of inhibiting migration by needy
persons into the State is constitutionally impermissible”),
overruled in part on other grounds by Edelman v. Jordan, 415 U.S.
651, 671, 94 S. Ct. 1347, 1359–60 (1974).
But Indiana is among a minority of jurisdictions that re-
gards sex offender registration as punitive and thus subject to
40 No. 19-2523
the ex post facto clause of its constitution. 4 Thus, as a matter of
its own law, Indiana cannot require the six plaintiffs in this
case to register based solely on their criminal histories, as the
plaintiffs committed their crimes before the state legislature
first made them registrable offenses. Wallace precludes the
state from effectively increasing their punishment after the
fact.
By looking instead to a registration obligation imposed by
another state as the basis for imposing its own obligation on
the plaintiffs, Indiana nominally avoids the ex post facto prob-
lem. 5 But in doing so, it has created another, federal
Some eight state supreme courts have held that the retroactive appli-
4
cation of sex offender registration and notification laws violate their re-
spective state constitutions. See U.S. Dep’t of Justice, Office of Justice Pro-
grams, Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, & Tracking, Sex Offender Registration and Notification in the
United States, Current Case Law and Issues—March 2019: Retroactive Applica-
tion & Ex Post Facto Considerations, at 1–2 & n.9, available at
https://smart.ojp.gov/sorna/current-law/case-law-updates.
5I say nominally because the rationale of the Indiana cases is that In-
diana is premising its registration obligation solely upon the obligation
imposed by the offender’s former domicile and not on his underlying
criminal offense, e.g., Zerbe, 50 N.E.3d at 370, with the result that his obli-
gation to register is effectively continued across state lines, Tyson v. State,
51 N.E.3d 88, 96 (Ind. 2016). (Of course, there would have been no duty to
register in the first instance but for the particular offense he committed,
and that offense would not trigger a duty to register under Indiana law.)
I am not confident this rationale holds up in all applications of Indiana’s
other jurisdiction requirement, however. Two of the plaintiffs, Gary
Snider and Adam Bash, relocated to Indiana three and six years, respec-
tively, before the Indiana legislature adopted the other jurisdiction provi-
sion in 2006. Although they had been required to register in their former
domiciles, those registration obligations would have effectively come to
an end once they moved to Indiana, at least absent an assertion of
No. 19-2523 41
constitutional problem. Relying on an obligation that another
state has imposed as a matter of its own law as the determi-
nant for how a new Indiana citizen will be treated in Indiana
interferes with his right to travel. It is only because each plain-
tiff lived somewhere else previously that he can now be re-
quired to register as a matter of Indiana law. And upon their
relocation to Indiana each finds his rights vis-à-vis registra-
tion defined by his former domicile: only because he once
lived somewhere that authorized registration for his offense
may he be required to register in Indiana, whose own law
would not have permitted a registration obligation based on
the very same criminal history. See Saenz, 526 U.S. at 505, 119
S. Ct. at 1527 (“the right to travel embraces the citizen’s right
to be treated equally in her new state of residence”); Hooper v.
Bernalillo Cnty. Assessor, 472 U.S. 612, 623, 105 S. Ct. 2862, 2868
(1985) (“The State may not favor established residents over
new residents based on the view that the State may take care
of ‘its own,’ if such is defined by prior residence. Newcomers,
by establishing bona fide residence in the State, become the
State’s ‘own’ and may not be discriminated against solely on
the basis of their [date of] arrival in the State … .”); Shapiro,
394 U.S. at 633, 89 S. Ct. at 1330 (“We recognize that a State
has a valid interest in preserving the fiscal integrity of its
extraterritorial authority by their former home states. So in their cases, it
would be difficult for Indiana to claim that application of the other juris-
diction provision simply maintained their prior registration obligations
across state lines. (Of course, we also know that Indiana initially required
Snider and Bash to register based on their criminal histories; but the 2009
decision in Wallace made plain in hindsight that the State lacked the au-
thority to require Snider and Bash to register on that basis.)
42 No. 19-2523
programs. … But a State may not accomplish such a purpose
by invidious distinctions between classes of its citizens.”).
3.
My colleagues in the majority characterize the effect of the
other jurisdiction provision on the plaintiffs as merely one of
disparate impact rather than one of disparate treatment. It is
true enough that the statute does not draw express distinc-
tions based on a person’s residency. But the statute on its face
does take notice of an individual’s treatment in another juris-
diction and uses his treatment elsewhere as the template for
how he will now be treated as an Indiana citizen, under Indi-
ana law. In doing so, the statute necessarily implicates his
travel history. More to the point, it creates distinct classes of
Indiana citizenship that turn upon what rights and obliga-
tions an individual has been assigned by another state. In
some instances, the effect is benign; in others, the individual
loses important freedoms he would have enjoyed as an Indi-
ana citizen had he never relocated from or traveled to another
state. In all applications of the statutory provision at issue
here, it is the person’s travel history, and his treatment in an-
other jurisdiction, that define his rights as an Indiana citizen
going forward. The burdens that the plaintiffs in this case, and
other Indiana offenders like them, must shoulder as a result
of the other jurisdiction provision are not the unintended con-
sequence of a statute that is otherwise neutral vis-à-vis the
right to travel. The very purpose of the statute is to use the
fact of one’s prior presence in another jurisdiction to circum-
scribe his rights as an Indiana citizen. This is not disparate im-
pact. It is, overtly and unmistakably, disparate treatment. Alt-
hough the Supreme Court has not yet confronted the particu-
lar fact pattern presented here, its teachings show us why
No. 19-2523 43
Indiana’s registration scheme unconstitutionally burdens the
plaintiffs’ right to travel.
4.
The majority relies on two features of Indiana’s other ju-
risdiction provision to distinguish it from the sorts of dura-
tional residency schemes that the Supreme Court has deemed
to violate the right to travel. First, if a sex offender relocates to
Indiana from another state that did not require him to regis-
ter, Indiana’s other jurisdiction provision will not by its terms
compel him to register in Indiana. Second, relocating to Indi-
ana is not the only way of triggering the other jurisdiction
provision: The provision also comes into play when an Indi-
ana resident—however longstanding—travels to another
state for work or study (while remaining an Indiana resident)
and is required to register in that state so long as he is present
for those purposes. To the majority’s way of thinking, these
provisions show that Indiana is not discriminating based on
the length of one’s residency in Indiana, as has typically been
the case in the Supreme Court’s jurisprudence.
Certainly the timing and duration of one’s residency in In-
diana is not the sole determinant of whether its other jurisdic-
tion provision will compel him to register as a sex offender in
Indiana. If anything, however, the way in which Indiana’s
other jurisdiction provision operates makes plain that Indiana
is relying exclusively on how one was treated in another state
to determine how he will be treated in Indiana. This cannot
be reconciled with what I understand to be the animating ra-
tionale of the Supreme Court’s right-to-travel cases. I will take
each feature of the Indiana provision, including its applica-
tion to relocating persons like the plaintiffs, in turn to explain
my view.
44 No. 19-2523
5.
Start with the benign application of the other jurisdiction
provision: If an offender relocates to Indiana from a state that
did not require him to register, then he will not be made to
register in Indiana. I agree with the majority that this is one
aspect of the provision showing that Indiana is not invariably
discriminating against residents who relocate from other
states.
Of course, as the majority recognizes, this was true in
Saenz as well. For the recipients of public benefits who were
relocating to California from other states, California capped
the amount of such benefits such individuals could receive
during their first year of residence in California at the levels
they received in their prior states of residence for a period of
one year. But not every state had public benefit levels that
were lower than California’s relatively generous payments; a
handful gave their residents equal or greater benefits. Indi-
viduals relocating from those states thus suffered no disad-
vantage as a result of their relocation; they received the same
benefit amounts upon relocation that a long-standing Califor-
nian would. 526 U.S. at 497 & n.8, 119 S. Ct. at 1523 & n.8. That
did not move the Supreme Court. It still found the scheme as
a whole one that impermissibly discriminated against new
residents based on their recent arrival in California. Id. at 505–
07, 119 S. Ct. at 1527–28.
So the fact that not every sex offender who relocates to In-
diana from another state or travels from Indiana to another
state will incur a registration obligation as a result does not
rule out the possibility that Indiana is interfering with the
right to travel—indeed, it confirms that what Indiana is doing
is using another state’s treatment of a sex offender as a proxy
No. 19-2523 45
for how he should be treated in Indiana. If an offender is for-
tunate enough to travel to or relocate from a state that does
not impose a registration obligation on him, Indiana will not
do so; but if the other state does require him to register, then
Indiana will as well. Either way, Indiana is relying on another
state’s treatment of the offender as dispositive of how he will
be treated in Indiana.
6.
This is unquestionably the case with the six plaintiffs be-
fore us. All six committed a sex offense in or before 1994,
when Indiana adopted the original version of its Sex Offense
Registration Act (SORA). Because the plaintiffs’ crimes were
committed before they became registrable offenses under In-
diana law, Wallace precludes the state from imposing a regis-
tration obligation based on their criminal histories. Wallace
treats registration as a punishment, and thus one that Indi-
ana’s ex post facto provision rules out for offenses taking place
before registration became proscribed for an individual’s of-
fense. Had the plaintiffs been living in Indiana at the time of
their offenses and remained there afterward, they would be
free today of any obligation to register under Wallace.
For the plaintiffs, it is the fact that they relocated to Indi-
ana at a later date, and from other states that required them
to register, that deprives them of the benefit of Indiana’s ex
post facto provision. Although their crimes were such that, if
committed in Indiana, they would not be registrable offenses
under Wallace, because each of the plaintiffs lived previously
in a jurisdiction that treated the offenses as registrable—and
saw no ex post facto problem with doing so—Indiana seizes on
the prior registration obligation itself to demand registration
46 No. 19-2523
in Indiana. It is thus one’s relocation from such a state that is
the trigger for the registration obligation in Indiana.
Plaintiff Brian Hope’s history makes plain the problem.
Hope in fact committed his sex offense in Indiana. He com-
mitted the offense in 1993 and pleaded guilty in 1996. In 2000,
he completed his probation. In 2004, he moved to California
and later to Texas, where he was required to register under
Texas law based on his Indiana conviction. 6 When he re-
turned to Indiana in 2013 to help care for an ailing family
member, Indiana invoked the other jurisdiction provision to
require him to register in Indiana. Given the date of his of-
fense, Indiana law does not treat his criminal history as one
requiring registration: Again, Wallace holds that the state’s ex
post facto provision forbids it. But because Hope previously
lived in Texas, which did treat his offense as one requiring reg-
istration, Indiana relies on the prior registration obligation it-
self to demand that he register in Indiana. But for his travel to
and from Texas, Hope would have no such obligation as a
matter of Indiana law. See also Ammons v. State, 50 N.E.3d 143,
144–45 (Ind. 2016) (per curiam) (no ex post facto violation
where Indiana resident committed sex offense pre-SORA,
later moved to Iowa, which required him to register based on
his Indiana conviction, and upon subsequent return to Indi-
ana was required to register based on the Iowa registration
obligation).
The same, of course, is true with respect to the other five
plaintiffs. Like Hope, they committed sex offenses (albeit not
Hope himself does not concede that Texas required him to register
6
based on his Indiana conviction. For present purposes, I am accepting In-
diana’s representation that he was required to register on this basis.
No. 19-2523 47
in Indiana) that were not registrable in Indiana when the
crimes took place. So under Wallace, Indiana’s ex post facto pro-
vision would bar the state from imposing a registration re-
quirement based on their criminal histories. Instead, the state
looks to the obligations imposed on the plaintiffs by their for-
mer states of residence as the trigger for registration in Indi-
ana.
As a consequence of this scheme, the plaintiffs arrived in
Indiana with a lesser set of rights than otherwise similarly-
situated Indiana offenders. Rather than treat the offender’s
criminal history as the dispositive factor in deciding whether
registration is required—and permitted by Indiana’s ex post
facto provision—Indiana has looked instead to what civil bur-
dens an offender’s former state of residence imposed on him
and adopts those burdens as its own.
In effect, the state is treating an offender who moved to
Indiana from, say, New York, where he was required to reg-
ister, as if he remains a citizen of New York for registration
purposes, and he cannot claim the benefit of Indiana’s ex post
facto clause in the same way that a lifelong Indiana resident
with the identical criminal history can. Even Hope, who was
an Indiana resident when he committed his sex offense, has
lost the benefit of Indiana’s ex post facto decision because he
left Indiana and for a time resided in another state which bur-
dened him with a registration obligation that Wallace fore-
closed Indiana from imposing. Because he was formerly a cit-
izen of Texas, Indiana requires Hope to carry the same burden
as a Hoosier that he carried as a Texan.
48 No. 19-2523
7.
This unique feature of Indiana’s registration scheme—re-
quiring registration based not on one’s criminal history and
on how Indiana law treats that history, but rather on how an-
other state treated that history as a matter of its own law (even
if it is an Indiana criminal history)—implicates the core con-
cerns that have animated the Supreme Court’s right-to-travel
decisions. Indiana is classifying the six plaintiffs based on
their prior domiciles and assigning them a lesser set of rights
(no ex post facto protection vis-à-vis registration obligations)
and a greater set of burdens (the duty to register as a sex of-
fender, in some cases for life) as compared with similar of-
fenders who lived in Indiana before its SORA was adopted
and have remained there since. As more recently arrived res-
idents of Indiana, the plaintiffs do not enjoy all of the same
rights and privileges as other Indiana residents. See Saenz, 526
U.S. at 505–07, 119 S. Ct. at 1527–28 (invalidating California
scheme temporarily capping amount of public aid new resi-
dents could receive to amounts they received in their former
domiciles); Attorney General of N.Y. v. Soto-Lopez, 476 U.S. 898,
911–12, 106 S. Ct. 2317, 2325–26 (1986) (invalidating civil ser-
vice employment preference limited to veterans who resided
in state at time they entered military service); Hooper, 472 U.S.
at 622–23, 105 S. Ct. at 2868–69 (invalidating property tax ex-
emption limited to veterans who resided in state prior to spec-
ified date); Zobel v. Williams, 457 U.S. 55, 64–65, 102 S. Ct. 2309,
2314–15 (1982) (invalidating distribution of public oil divi-
dends to state residents based on the length of their residency
in state); Mem. Hosp. v. Maricopa Cnty., 415 U.S. 250, 269, 94
S. Ct. 1076, 1088 (1974) (invalidating requirement that citizen
must reside in state for period of one year before becoming
eligible for non-emergency medical care at public expense);
No. 19-2523 49
Shapiro, 394 U.S. at 633, 89 S. Ct. at 1330 (invalidating various
provisions requiring one year’s residence in state to be eligi-
ble for public aid).
To be sure, there are factual differences between the of-
fender-registration scheme at issue here and the public bene-
fit schemes the Court has addressed previously. Indiana is not
imposing a durational residency requirement as California
did in Saenz: it is not requiring any and all offenders who were
required to register in their former states to register in Indiana
for a period of one year after their relocation, for example, af-
ter which the state will re-evaluate whether they must con-
tinue to register in Indiana based on their criminal histories.
Indiana’s scheme is more like a fixed-point residency scheme,
in the sense that had the plaintiffs all established residency in
Indiana by 1994 and remained there continuously thereafter,
they would have no obligation to register; but having instead
relocated to Indiana at later dates, they do have to shoulder
the burdens of registration. Cf. Soto-Lopez, 476 U.S. 898, 106
S. Ct. 2317 (veteran must have resided in state at the time he
entered military service in order to qualify for veterans’ civil
service preference); Hooper, 472 U.S. 612, 105 S. Ct. 2862 (vet-
eran must have been a state resident by specified date in order
to qualify for tax exemption). Even that analogy is imperfect
because, as the majority reminds us, any Indiana resident can
become subject to a registration obligation by commuting to
another state that requires him to register there. (More on that
aspect of Indiana’s scheme in a moment.)
But what Indiana’s registration scheme has in common
with Saenz in particular is that Indiana is looking to an indi-
vidual’s treatment by his former state of residence as the de-
terminant for how he will be treated by Indiana, and limiting
50 No. 19-2523
his rights as an Indiana citizen based on the rules of his former
domicile. Had Hope never left Indiana, he would by virtue of
the Wallace decision be free of any obligation to register today.
But because he left Indiana and for a time resided in Texas,
whose own ex post facto clause did not preclude the imposition
of a registration obligation upon him, he now occupies a dis-
tinct tier of Indiana citizenship which requires him to register
for life. In one respect, his case is like that of a veteran who
did not yet live in New Mexico as of the qualifying eligibility
date the state established for a special tax break for veterans.
Hooper. In another, he is like a public aid recipient relocating
to California, who is assigned a lesser set of benefits upon ar-
rival from another state, Saenz, except that here the benefit in
question is not public aid but one’s ability to invoke Indiana’s
ex post facto protections, and instead of being temporary, the
lesser benefit is permanent. Cf. Soto-Lopez, 476 U.S. at 909, 106
S. Ct. at 2324 (plurality) (“a permanent deprivation of a sig-
nificant benefit, based only on the fact of nonresidence at a
past point in time, clearly operates to penalize appellees for
exercising their right to migrate”).
Certainly it is true that the Supreme Court has not ad-
dressed the right to travel in this particular context. But what
it has already said about a state’s obligation to treat newcom-
ers on equal terms with longer-term residents applies with
equal force here. With respect to the state’s ex post facto guar-
antee, Indiana is treating each of the plaintiffs as a stranger
rather than one of its own, relegating them to the more bur-
densome status they held in their prior domiciles as offenders
subject to punitive registration requirements. Cf. Mem. Hosp.,
415 U.S. at 261–62, 94 S. Ct. at 1084 (“Not unlike the admoni-
tion of the Bible that, ‘Ye shall have one manner of law, as well
for the stranger, as for your own country,’ Leviticus 24:22
No. 19-2523 51
(King James version), the right of interstate travel must be
seen as insuring new residents the same right to vital govern-
ment benefits and privileges in the States to which they mi-
grate as are enjoyed by other residents.”).
8.
But what of the fact that any citizen of Indiana, however
long he has resided in the state, can incur a registration obli-
gation simply by commuting to another state that requires
him to register so long as he is present there? See, e.g., 730 Ill.
Comp. Stat. 150/3(a-5) (“An out-of-state student or out-of-
state employee shall, within 3 days after beginning school or
employment in this State, register in person and provide ac-
curate information as required by the Department of State Po-
lice.”). Certainly this is another point of distinction between
this case and the Supreme Court’s precedents, and as the ma-
jority points out, this application of Indiana’s scheme shows
that residency per se is not always the triggering factor for the
obligation to register (although it is for the plaintiffs). But
one’s travel certainly is the trigger, and as in the case of relo-
cation to Indiana from another state, one’s travel for work or
study to another state that requires registration while there
again results in the permanent loss of rights vis-à-vis other
Indiana citizens. Although the commuter scenario is not pre-
sented in this case, it implicates the Supreme Court’s right-to-
travel jurisprudence just as surely as the plaintiffs’ relocation
scenario does.
Consider what happens when a lifelong Indiana resident
who was convicted of a sex offense pre-SORA commutes to
another state—neighboring Illinois, for example—for work or
study and must register there as a matter of Illinois law. Now
he has been required to register in another jurisdiction, and
52 No. 19-2523
Indiana can cite that Illinois registration requirement as the
basis for requiring him to register in Indiana. As a result of his
travel, this individual has now effectively lost the benefit of
Indiana’s ex post facto clause and the Wallace decision. His
criminal history is precisely the same as it was before. He has
not violated the terms of supervision or a protective order, or
taken some other action that suggests he poses an increased
risk of recidivism or danger to others. Nothing about his back-
ground has changed except for the fact that he traveled to an-
other jurisdiction that required him to register as a matter of
its own law (including its own ex post facto jurisprudence), so
long as he was present in that other state. Without ever sur-
rendering his Indiana citizenship, he leaves Indiana with one
set of rights and obligations and returns with another, simply
because he traveled to another state with a different set of
rules.
From the earliest days of this country, the right to travel
freely among the states has been recognized as an essential
right of national citizenship. See Articles of Confederation, art.
IV, § 1 (1778) (recognizing a right of “free ingress and regress
to and from any other State” and affording to the free inhab-
itants of each state “all privileges and immunities of free citi-
zens in the several states”); U.S. Const., art. IV, § 2, cl. 1 (“[t]he
citizens of each state shall be entitled to all Privileges and Im-
munities of Citizens in the several States”); id., amend. XIV,
§ 1 (“All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law that shall abridge the privileges or
immunities of citizens of the United States[.]”); Corfield v.
Coryell, 6 Fed. Cas. 546, 552 (Cir. Ct. E.D. Pa. 1823) (Bushrod
Washington, Circuit Justice) (“The right of a citizen of one
No. 19-2523 53
state to pass through, or to reside in any other state, for pur-
poses of trade, agriculture, professional pursuits, or otherwise
... may be mentioned as [one] of the particular privileges and
immunities of citizens, which are clearly embraced by the
general description of privileges deemed to be fundamen-
tal … .”); Passenger Cases, 48 U.S. 283, 492 (1849) (Taney, C.J.,
dissenting) (“We are all citizens of the United States; and, as
members of the same community, must have the right to pass
and repass through every part of it without interruption, as
freely as in our own States.”); Edwards, 314 U.S. at 178, 62 S. Ct.
at 169 (Douglas, J., concurring) (“The right to move freely
from State to State is an incident of national citizenship pro-
tected by the privileges and immunities clause of the Four-
teenth Amendment against state interference.”); id. at 183, 62
S. Ct. at 171 (Jackson, J., concurring) (“This Court should …
hold squarely that it is a privilege of citizenship of the United
States, protected from state abridgment, to enter any state of
the Union, either for temporary sojourn or for the establish-
ment of permanent residence therein and for gaining result-
ant citizenship thereof. If national citizenship means less than
this, it means nothing.”); Shapiro, 394 U.S. at 629, 89 S. Ct. at
1329 (“This Court long ago recognized that the nature of our
Federal Union and our constitutional precepts of personal lib-
erty unite to require that all citizens be free to travel through-
out the length and breadth of our land uninhibited by stat-
utes, rules, or regulations which unreasonably burden this
movement.”).
Traveling from one state to another at the cost of surren-
dering the rights one otherwise enjoys as the bona fide resi-
dent of one’s home state is not free travel. Indiana cannot, I
submit, tell one of its citizens, “You have all the rights of a
Hoosier today, but if you travel to another state that accords
54 No. 19-2523
you lesser rights, you return with only so many rights as that
state gave you.” To do so may implicate the first as well as the
third aspect of the right to travel, see ante at 11 (outlining the
three aspects), but it certainly violates the central teaching of
the Supreme Court’s right-to-travel precedents, which is that
a state cannot invidiously classify its residents, and afford
them differential rights, based on when and whence they
have come to the state.
9.
States can and do reach different conclusions about what
crimes should require registration. They also can and do reach
different conclusions about whether registration obligations
are punitive, such that they implicate their own ex post facto
provisions. What they cannot do, having settled these ques-
tions in a particular way, is to apply a different set of rules to
a citizen who has relocated from a jurisdiction that answered
the questions differently. In terms of his rights as a state citi-
zen, an Indiana citizen newly relocated from Texas is not a
former Texan, he is a Hoosier, period, and he must be treated
as such.
Indiana decided to require registration for the particular
offenses that the plaintiffs committed, but only after the plain-
tiffs committed those crimes. And because Indiana’s Supreme
Court has decided that the state’s registration obligations are
punitive, Indiana’s ex post facto provision bars the state from
requiring registration of all six plaintiffs based on their crimi-
nal histories. The state cannot pick and choose which of its
residents can claim the benefit of that provision, but that is in
effect what Indiana is doing. By placing its reliance on the fact
that an offender relocated from another state that imposed a
registration obligation as a matter of its own laws (including
No. 19-2523 55
its ex post facto jurisprudence) as the basis for requiring the
offender to register in Indiana, it is precluding the offender
from claiming the benefit of the Indiana ex post facto clause
that another citizen of Indiana would be entitled to claim. It is
saying to plaintiff Hope, “Yes, you had a right to be free from
registration when you previously lived in Indiana and com-
mitted your offense, but you lost that right when you moved
to Texas, which interpreted its own legal provisions so as to
require you to register.”
None of the six plaintiffs in this case has done a single
thing to distinguish himself from a similarly-situated Indiana
offender who, by virtue of the timing of his residency in Indi-
ana, cannot be required to register under Wallace—except re-
locate (i.e., travel) from another state that had different regis-
tration rules. The right to travel, as conceived and applied by
the Supreme Court, forbids such inconsistent and discrimina-
tory treatment of Indiana’s citizens. The express logic, if not
the fact-specific holdings, of the Supreme Court’s right-to-
travel precedents, call upon us to affirm the district court’s
decision to grant the plaintiffs declaratory and injunctive re-
lief on this point.
For the foregoing reasons, and the additional reasons set
forth in the panel’s now-vacated majority opinion, 984 F.3d
532, I respectfully dissent as to this aspect of the court’s deci-
sion.