BAKER, C.J.
At issue herein is an ordinance that prohibits convicted sex offenders from entering public parks in Jeffersonville. Though offenders may seek very limited exemptions, the exemption procedure is extraordinarily burdensome and virtually illusory. The defendant was charged, convicted, served the sentence for his crime, and completed his registration requirement before the ordinance was enacted. As applied to this defendant, we find that the ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution.
. . . .
Dowdell argues that the Ordinance is unconstitutional as applied to him under the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. This prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325-25 (1867)). . . .
. . . .
Dowdell concedes that the Ordinance has a non-punitive purpose to protect those members of the public who use the City parks. We must, therefore, analyze the effects of the ordinance as applied to Dowdell. Our Supreme Court explained that the seven factors set forth by the United States Supreme Court to determine the effects of a statute apply to an analysis under the Indiana Constitution. Wallace, slip op. p.10-11. Those seven factors are:
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.
Id. at 11 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (emphases added). No one factor is determinative, and our task is not simply to count the factors on each side, but to weigh them. Id. (quotingState v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992)).
. . . .
In summary, as in Wallace,
of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view advancing a non-punitive interest points clearly in favor of treating the effects of the [Ordinance] as non-punitive. The remaining factors . . . point in the other direction.
Slip op. p. 18. Dowdell was charged, convicted, served the sentence for his crime, and fulfilled and completed his registration requirement before the Ordinance was enacted. We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The judgment of the trial court is reversed.
BARNES, J., concurs.
CRONE, J., dissents with opinion.
CRONE, J., dissenting.
. . . .
To summarize, of the seven factors identified as relevant to the inquiry of whether this Ordinance has a punitive effect despite legislative intent that it be non-punitive, I find that one supports the conclusion that the Ordinance is punitive in effect as to Dowdell, and one slightly favors treating the effects of the Ordinance as punitive when applied here. The remaining five, including the excessiveness factor, point in the other direction. Accordingly, I would conclude that as applied to Dowdell, the Ordinance does not violate Indiana’s constitutional prohibition on ex post facto laws. The predominantly non-punitive nature of the Ordinance convinces me that there is no violation of Article I, section 24 of the Indiana Constitution. Consequently, I would affirm the entry of summary judgment in favor of the City.
At issue herein is an ordinance that prohibits convicted sex offenders from entering public parks in Jeffersonville. Though offenders may seek very limited exemptions, the exemption procedure is extraordinarily burdensome and virtually illusory. The defendant was charged, convicted, served the sentence for his crime, and completed his registration requirement before the ordinance was enacted. As applied to this defendant, we find that the ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution.
. . . .
Dowdell argues that the Ordinance is unconstitutional as applied to him under the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. This prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325-25 (1867)). . . .
. . . .
Dowdell concedes that the Ordinance has a non-punitive purpose to protect those members of the public who use the City parks. We must, therefore, analyze the effects of the ordinance as applied to Dowdell. Our Supreme Court explained that the seven factors set forth by the United States Supreme Court to determine the effects of a statute apply to an analysis under the Indiana Constitution. Wallace, slip op. p.10-11. Those seven factors are:
[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.
Id. at 11 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (emphases added). No one factor is determinative, and our task is not simply to count the factors on each side, but to weigh them. Id. (quotingState v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992)).
. . . .
In summary, as in Wallace,
of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view advancing a non-punitive interest points clearly in favor of treating the effects of the [Ordinance] as non-punitive. The remaining factors . . . point in the other direction.
Slip op. p. 18. Dowdell was charged, convicted, served the sentence for his crime, and fulfilled and completed his registration requirement before the Ordinance was enacted. We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The judgment of the trial court is reversed.
BARNES, J., concurs.
CRONE, J., dissents with opinion.
CRONE, J., dissenting.
. . . .
To summarize, of the seven factors identified as relevant to the inquiry of whether this Ordinance has a punitive effect despite legislative intent that it be non-punitive, I find that one supports the conclusion that the Ordinance is punitive in effect as to Dowdell, and one slightly favors treating the effects of the Ordinance as punitive when applied here. The remaining five, including the excessiveness factor, point in the other direction. Accordingly, I would conclude that as applied to Dowdell, the Ordinance does not violate Indiana’s constitutional prohibition on ex post facto laws. The predominantly non-punitive nature of the Ordinance convinces me that there is no violation of Article I, section 24 of the Indiana Constitution. Consequently, I would affirm the entry of summary judgment in favor of the City.