Federal Court Finds Portion of Indiana’s Offender Registration Statute Void-for-Vagueness

Indiana Code section 11-8-8-8(a)(1) requires sex or violent offenders to provide certain information to law enforcement, including a description of “any vehicle the sex or violent offender owns or operates on a regular basis.” The law does not define the term “regular.”

In early 2019, James McClernon borrowed a truck from a friend to move some items. Two days after borrowing the truck, McClernon reported to the sheriff’s department to update his offender registration. He did not provide a description of the truck he had borrowed from his friend.

Consequently, McClernon was charged with failure to register. His trial attorney moved to dismiss the charge, arguing the statute was void for vagueness as applied to McClernon. The motion was denied, and McClernon sought an interlocutory (aka intermediate) appeal. After a spirited oral argument, the Court of Appeals upheld the denial. Both a petition for rehearing and a petition requesting review by the Indiana Supreme Court were denied.

McClernon pleaded guilty and filed a petition for writ of habeas corpus just before his release from jail. The federal district court granted McClernon’s petition. The court held that the statute was so vague a person of ordinary intelligence would not know that borrowing a vehicle for two days qualified as operating that vehicle “on a regular basis.”

The problem with the statute is that it fails to define the word “regular.” People are left to guess at its meaning. This is not the first time Indiana has been told that the term “regular” should be defined in a criminal statute. See Whatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016). Thus far, the General Assembly has declined to do so. Until it does, practitioners should continue bringing these vagueness challenges.