Tribes work to create sex-offender registries

Further proof of the failure of SORNA. A list that tells the public where the registrants SLEEP for a few hours of the day/night. Lawmakers tout SORNA as a big public safety tool and it appears it is so complicated that the Tribes cannot implement it easily; apparently there are none fully approved and operational.

11-21-2014 National:

More than three-quarters of American Indian tribes that have the authority to develop sex-offender registries are well on their way to meeting the legal requirements meant to keep convicted criminals from hiding out on tribal lands, a new report shows.

Of the country's 566 federally recognized tribes, 214 are eligible to implement the Sex Offender Registration and Notification Act of 2006 or delegate that authority to a state. The rest of the tribes in Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin are under state jurisdiction when it comes to law enforcement and are ineligible to develop the registration and notification systems.

The report released this week by the U.S. Government Accountability Office said that despite most eligible tribes being on board to track sex offenders within their borders, the tribes face a number of challenges in implementing the law. Those include accessing federal criminal justice databases, paying for startup costs and getting enough guidance from federal agencies.

It also says tribes are having trouble getting notified by states when convicted sex offenders move to tribal land or work or go to school on reservations after being released from prison.

Some states said they have no laws or policies that require tribes be notified. Determining whether an address is on tribal land isn't always easy either, they told the Government Accountability Office.

The U.S. Department of Justice agreed with a recommendation to develop a way for states to keep tribes in the loop so that they can enforce laws pertaining to sex offenders. Some tribes restrict how close the offenders can live or work to schools or day care centers, or banish the offenders altogether.

Federal corrections officials ask inmates leaving prison if their new address is on tribal lands, and those officials can notify tribes, the report said.

The accountability office also said the U.S. Bureau of Indian Affairs could do a better job at finding out which tribes need help implementing the law. The Interior Department said the Bureau of Indian Affairs would be reaching out to tribes.

A Tribal Public Safety Working Group established earlier this year is identifying which tribes have trouble accessing federal databases and finding ways to cover associated costs long-term.

The 164 tribes that chose to implement the law must create registries that include offender descriptions, photographs, fingerprints, criminal history and DNA samples, as well as notify the community and create a website to make offender information available to the public.

According to the Justice Department, 43 percent of those tribes substantially have implemented the law and 43 percent have submitted an implementation package that hasn't been approved.

Justice officials said they have granted more time to the 22 eligible tribes that have not submitted the package. One tribe has not substantially implemented the law, the Justice Department said.

"We are reviewing the final GAO report and look forward to working with states to identify ways to improve their notification systems and communications with tribal governments," Justice Department spokesman Wyn Hornbuckle said in a statement Thursday. ..Source.. by FELICIA FONSECA

Read More of Article...

Article Summary only...

NJJN Releases Policy Platform on Sex Offender Registries and Public Notification Laws

8-25-2012 National:

While lawmakers often believe that placing youth on sex offender registries and making them subject to public notification laws protects the public, these approaches are costly and ineffective.

For example, since most sexual offenses are committed by friends or family members of the victim, the threat of public registration increases likelihood of underreporting, isolating victims and those who commit offenses from treatment. Furthermore, including youth on public registries disconnects them from their family and community as well as future opportunities, making it more likely that they will re-offend.

However, given the prevalence of registries, NJJN has created a new policy platform with recommendations on the best way to keep our communities safe and avoid or minimize the very real damage done when public sex offender registries include youth.

Download NJJN's "Sex Offender Registries and Public Notification" Policy Platform

Download a Snapshot of Juvenile Sex Offender Registration and Notification Laws

..Source..

Read More of Article...

Article Summary only...

Court rules that juveniles can be required to register as sex offenders

The essence of this case is that, the Adam Walsh Act provision regarding "certain juvenile sex offenders" is upheld. That provision does not require that 100% of juvenile sex offenders be registered; only certain ones, and as to those, the facts of their specific case control whether or not they will register. Lawyers, go to work for them.

1-26-2012 Montana and National:

HELENA, Mont. — A federal appeals court ruled Wednesday that juveniles whose identities otherwise would be protected can be required to publicly register as sex offenders.

The 9th U.S. Circuit of Appeals denied the argument by three males in Montana who said lower-court judges should not have sentenced them to register as offenders for sex crimes committed when they were children.

The defendants, in a consolidated appeal of three separate cases, cited the confidentiality provisions of the Federal Juvenile Delinquency Act. Those provisions are safeguards meant to help the child avoid the stigma of a past criminal conviction and to encourage treatment and rehabilitation.

The panel of three appellate judges said those provisions don't apply to children 14 and older when it comes to sex offender registration. Congress intended to exclude certain juveniles from confidentiality when it created the Sex Offender Registration and Notification Act, or SORNA, the judges ruled.

Juvenile justice advocates say the ruling is the first of its kind. Advocates say the decision is short-sighted and represents an erosion of confidentiality protections given to youth offenders who are generally unlikely to repeat their offenses.

Requiring them to register as sex offenders will make it difficult for them to move past their juvenile offenses and become productive adults, said Tracy Velazquez, executive director of the Justice Policy Institute in Washington, D.C.

"I am concerned that (the ruling) will make it more difficult for advocates to argue for the importance of not putting kids on the registry," Velazquez said. "The fact that the federal government has said states can keep youths off the registry and still comply with SORNA hopefully that will not change as a result of this."

Jessica Fehr, spokeswoman for the U.S. Attorney's Office in Montana, said in an email it would be inappropriate for her to comment on the case in the event the defendants appeal the decision.

Sex offenders must have their photographs taken, which are made public along with their names, addresses, criminal history and status of release.

The judges found that those requirements conflict with the confidentiality provisions of the juvenile delinquency law.

To decide which law should rule in this case, the appellate panel looked at both laws and statements in the Congressional record.

The judges found that the sex offender registration law "unambiguously directs juveniles over the age of 14 convicted of certain aggravated sex crimes to register."

"Thus, Congress was aware that it was limiting protections under the (juvenile delinquency law) by applying SORNA to certain juvenile delinquents, and intended to do so," Judge Kim McLane Wardlaw wrote in her opinion.

The judges also denied claims that the law violates several constitutional provisions.

Juvenile sex offenders over 14 aren't a class protected by the Constitution's equal protection clause and forcing them to register is not cruel and unusual punishment, the panel ruled.

The judges also shot down claims that the law violates constitutional provisions against self-incrimination, due process and effective counsel.

The three who brought the case are identified in the opinion only by their initials. They all pleaded guilty to separate instances of committing an act of juvenile delinquency. The charges against them would have been aggravated sexual abuse with children had they been adults.

One is 20 years old and pleaded true to an offense that happened in July 2008, when he was 17.

The second offender is now 20 years old, and he pleaded true to offenses committed in 2005 and 2007, when he was between the ages of 13 and 16.

The third offender is now 17. He pleaded true to an offense that happened on the Rocky Boy's Indian Reservation in 2008 when he was 14. ..Source.. by MATT VOLZ

Read More of Article...

Article Summary only...

Little outcry over loss of sex offender list funds

1-11-2012 Nebraska:

LINCOLN — Nebraska just found out it will lose $163,000 in federal funds for failing to comply with a federal sex-offender registry law.

It is among 35 states, including Iowa, that have fallen short in implementing the provisions of the national Adam Walsh Act.

But like officials in many of those other noncompliant states, two Nebraska lawmakers said they're not sweating the loss of funds because the cost and changes that are required to comply with the federal mandate were just too much.

"For the money we're losing, it's just not worth it," said State Sen. Brad Ashford of Omaha, adding that other states have realized that, too.

Both Ashford and Sen. Amanda McGill of Lincoln said Tuesday that Nebraska ought to consider returning to its old system of dealing with convicted sex offenders or shifting to a tougher version of it.

"I think there's a hybrid approach, based on Nebraska's experience, that would be preferable to the federal one-size-fits-all system," Ashford said.

Before 2009, Nebraska's public sex-offender website listed only those sex offenders convicted of felonies who were deemed most likely to reoffend. Other less-dangerous offenders were not publicly listed, although local law enforcement and school officials were informed of where they lived.

In an attempt to comply with the Adam Walsh Act, Nebraska lawmakers dramatically changed the registry requirements.

All sex offenders, regardless of risk of reoffending, are now listed on the State Patrol's website. Their names remain there anywhere from 15 years to life, depending on the severity of their offense.

And offenders must personally report their address and movements to law enforcement offices, which has required more work for such offices.

That is similar to the sex offender registry law in Iowa, where the state has lost about $200,000 in federal funds for local drug enforcement task forces because of noncompliance.

In Nebraska, the new law has led to a wave of complaints from offenders who have moved on with their lives and have established careers and families.

They maintain that the public humiliation of being listed on the website is an unfair double punishment for themselves and their families for crimes they've already paid for through jail time or probation sentences. Some men told the Legislature's Judiciary Committee last year that being added to the public list threatened to ruin their jobs and businesses and had caused neighbors to shun them and their children.

Some law officers told the committee that providing staff to handle the personal visits from offenders required by the Adam Walsh Act cost too much for what it was worth, although some officials also said it was not a big deal.

McGill, a member of the committee, said she has no trouble getting tough on "true pedophiles" but thinks Nebraska's registry law should treat differently the offenders who had relatively minor crimes, paid their debt to society and don't appear to pose any risk to society.

"We should be worrying about those most likely to reoffend," McGill said, not those who don't pose a risk.

Nebraska was deemed noncompliant with the Adam Walsh Act because legislators declined to include young people — adjudicated of sex offenses in juvenile court — on the offender registry.

Ashford said the focus of juvenile court is rehabilitation, not punishment, and that it was problematic to include juveniles who were found responsible for offenses deemed not serious enough for prosecution in adult court.

Gov. Dave Heineman, in a recent letter to the Judiciary Committee, appeared to agree with that logic, saying the way juvenile offenders are treated "can have very serious and long-term consequences to the successful rehabilitation." The governor, though, offered his help if legislators chose to seek compliance with the federal mandate.

Both McGill and Ashford said they don't plan to seek compliance. Nor will they seek a major change this year in Nebraska's registry law.

Ashford said the 60-day session is too short to deal with the issue, which is complicated as well as politically charged.

McGill said she doesn't sense the "political will" this year to return to Nebraska's old registry law.

Instead, she proposed a minor change Tuesday that would provide some leniency for "Romeo and Juliet" cases.

Her Legislative Bill 914 would allow sex offenders who were 20 years old and whose victims were 15 to ask the State Patrol to reduce the length of time they are listed on the public registry from 25 years to 10 years, if the sex was consensual. McGill said such cases ought to be treated differently from a teen who molests an infant.

The bill would not affect sentences for statutory rape but would expand who could seek a short stay on the public registry in cases where the sex was consensual. Currently, statutory rape involves offenders who are 19 or older and victims who are younger than 16.

Nationally, some states are pressing Congress to relax the requirements of the Adam Walsh Act so they can comply.

At least one Nebraska lawmaker said he doesn't see a need for radical changes in the act at this point.

Sen. Pete Pirsch of Omaha, who introduced the bill that changed the Nebraska sex-offender registry act, said the old act was "deplorable" and only purported to protect public safety. Pirsch said it would be a mistake to return to a system that tried to "prognosticate" whether a sex offender would reoffend.

"There's no scientific way to predict what a convicted sex offender is capable of in the future. It didn't pass the smell test," he said. ..Source.. by Paul Hammel
WORLD-HERALD BUREAU

Read More of Article...

Article Summary only...

State Opts Out of Compliance With Adam Walsh Act

10-11-2011 New York, Washington DC:

The Cuomo administration has opted out of the Adam Walsh Child Protection and Safety Act—a federal law designed to toughen and standardize sex offender registration practices—concluding that it would cost more than it is worth while undermining the state's traditional protections for teenage offenders.

In a recent letter to the U.S. Department of Justice, the state said it would not embrace a law it was supposed to adopt more than two years ago.

"[W]e are convinced that the statutory scheme set out by our legislature is in the best interests of New York State and the best way to protect our citizens," Risa S. Sugarman, deputy commissioner of the Division of Criminal Justice Services and director of the state's Office of Sex Offender Management, wrote in an Aug. 23 letter. "New York believes that our present laws and risk assessment method provide our citizens with effective protection against sexual predators."

Since the act, also known as the Sex Offender Registration and Notification Act, was signed by President George W. Bush in July 2006, three New York governors have debated whether to comply with a statute that would require the state to substantially alter the way it registers sex offenders.

Twice, New York requested and received more time. But after the federal government made clear in late July that it would not offer additional extensions, New York begged off.

The act creates a national sex offender registry and directs every state and territory to post information on all sex offenders on a public website. It also establishes a rating system defined by the nature of the offense, rather than the risk of re-offense.

Implementation has proven problematic throughout the country, and only 15 states have complied with a law, according to the Justice Department's Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART).

Several states have cited conflicts between the act and their own laws and policies, and have been working with the federal government to achieve what the SMART office deems "substantial compliance." States that do not comply face the loss of 10 percent of the federal assistance received under the Edward Byrne Memorial Justice Assistance Grant (JAG), a major source of funding for anti-crime initiatives.

The Cuomo administration acknowledges that New York will not comply with the Adam Walsh law because of a deep chasm between the federal standards and New York laws, and long-standing public policy determinations.

For instance, New York does not publicly post information on offenders who are deemed at low risk of recidivism, many of them convicted of an age-of-consent crime. And its three-level rating system classifies offenders by low-, medium- and high-risk based not only on the crime of conviction, but myriad other factors, such as the use of violence, whether the offender is a predator or predicate, and whether the crime involved sexual violence. That would have to change if New York adopted the Adam Walsh Act.

But the state's main objection was apparently the federal requirement to place juveniles on the public sex offender registry, a mandate "in direct conflict [with this state's] public policy," Ms. Sugarman said in her letter.

New York does not register youthful offenders (those between the ages of 16 and 18 whose conviction to a serious crime is vacated and replaced with a non-criminal adjudication) or juvenile delinquents (individuals between the ages of 7 and 16 whose case is adjudicated in Family Court). It does register juvenile offenders, who are between the ages of 13 and 15 and, in contrast to youthful offenders, were held criminally liable for a sexually motivated felony.

"While New York law provides that the most dangerous juvenile offenders may be prosecuted in adult courts and, if convicted, they would be placed on the Sex Offender Registry, our laws and public policy also acknowledges that other than those most dangerous offenders, children who commit crimes should avoid the ramifications of adult convictions," Ms. Sugarman said.

The state also expressed concern over the "fiscal impact of implementation…with no improvement in public safety."

Ms. Sugarman suggested that the cost of requiring in-person reporting of all levels of sex offenders (in New York, low- and medium- risk offenders verify their address in writing every year and report once every three years to have a new picture taken; high risk offenders must report annually), the need to establish separate reporting facilities for juveniles and the "likelihood of litigation to defend the implementation of the Act" would add up to more than the $1.6 million the state could lose in Byrne aid.

Janine Kava, deputy communications director at the Division of Criminal Justice Services, said the state will attempt to recover the federal aid.

Ms. Kava said the state has been notified that it can apply to get the funds back for specific projects, such as upgrading information technology infrastructure, improving data collection and information sharing, enhancing community notification procedures and other activities that further the overall mission of the Adam Walsh Act, and will "pursue this option."

In the meantime, Ms. Sugarman said in her letter, New York "will continue to cooperate with the federal government and all other states in the effort to protect all victims against sexual predators by preventing the attacks against child and adult victims and bringing sexual predators to justice."

There was no immediate reaction from the Justice Department. ..Source.. by John Caher, NY Law Journal

Read More of Article...

Article Summary only...

Pennsylvania misses key federal sex offender deadline

Is it any wonder why Se. Jane Orie said what she said, she sponsored the bills making changes to laws; she is a stakeholder trying to keep her job. And, last sentence, "Police prefer registrants register under SORNA," certainly, that means more registrants for them to keep track of, and thats called job security. The Adam Walsh Act is noting but a "Stimulus Law" to keep certain officials and law enforcement working at the expense of taxpayers who cannot see what is being done to fleece them of their pocketbooks!

8-22-2011 Pennsylvania:

Pennsylvania missed a federal deadline for revamping its sex offender registration laws and risks becoming a "safe haven" for dangerous criminals, a state lawmaker warns.

The Adam Walsh Act, enacted in 2006, mandated a more comprehensive, nationwide system to track sex offenders. It gave states five years to adjust their laws to conform with new guidelines. Fourteen states made the July deadline.

Soon after Gov. Tom Corbett took office in January, he directed his staff to work on the changes needed to bring state law in line with the Adam Walsh Act, said spokesman Kevin Harley.

"It's the Corbett administration's intention to bring Pennsylvania into compliance," he said.

The Adam Walsh Act, named for a Florida boy kidnapped and killed in 1981, is stricter than the state's Megan's Law in that it requires sex offenders to register in person and get their pictures taken more frequently so police know where they're living and what they look like, said state Sen. Jane Orie, R-McCandless. She sponsored several bills to bring the state into compliance over the past five years.

If other states pass the laws and Pennsylvania does not, violent sexual offenders would move here to avoid the tougher laws, Orie said.

"These predators look at you as a safe haven," she said.

Ernie Allen, president and CEO of the National Center for Missing and Exploited Children in Alexandria, Va., said anecdotal evidence from federal marshals responsible for tracking down sex offenders who fail to maintain their registration supports Orie's argument.

"The most serious offenders were taking advantage of these differences (in state laws) and moving to where they were least likely to be identified," he said. Allen declined to name which states were attracting the sex offenders.

The center estimates about 100,000 of the 780,000 convicted sex offenders in the nation have either failed to register or moved without updating their information.

Although the state missed a July 27 deadline, the Corbett administration expects that when the Legislature returns to Harrisburg in September, it will pass the necessary changes, Harley said. Meanwhile, the state is asking the U.S. Justice Department to waive the penalty for failing to comply -- a 10 percent reduction in the Byrne Justice Assistance Grant.

The grant is the primary federal funding that state and local governments receive for criminal justice programs, including police, courts and district attorney's offices. The state received $9.2 million from the program this year, according to the Justice Department. Local governments in the state received ad additional $4 million.

The Corbett administration does not have an estimate of how much it would cost to bring the state into compliance, Harley said.

To comply with the federal law, Pennsylvania would have to adopt a three-tiered system of classifying sex offenders by how long they would need to register with authorities. The state has two categories: those who have to stay registered for 10 years and those who must stay registered for life. Someone who registers must re-register only when changing addresses.

Other changes include adding juvenile offenders to the registry, expanding the list of crimes considered to be sex offenses and increasing the amount of information offenders have to provide to police.

Several states balked at implementing provisions of the Adam Walsh Act because of its cost. In Texas, the Senate Criminal Justice Committee, after a yearlong study, recommended against compliance because it would cost more than the state would lose in grant money.

Ohio was the first state to comply with the Adam Walsh Act requirements. Amy Borror, spokeswoman for the Ohio Public Defenders Office, testified in a 2009 congressional hearing that complying with the law spawned more than 6,000 lawsuits and increased the workload on sheriff's offices by about 60 percent.

Borror said the number of lawsuits had increased to more than 7,000, and her office estimates that Ohio has spent at least $10 million just on legal costs. The actual costs of administering the act are harder to calculate because they are spread among the sheriff's and district attorney's offices of the state's 88 counties.

The Ohio Supreme Court ruled in two decisions that a key part of the Adam Walsh Act -- reclassifying the state's 26,000 convicted sex offenders into three groups -- is unconstitutional. The court determined that the burdens the new law imposes on offenders are so harsh that they amount to additional punishment rather than an administrative requirement comparable to obtaining a driver's license.

"For the Ohio Supreme Court to say that this had crossed the line into punishment was significant," Borror said.

Lisa Hackley, spokeswoman for the Ohio Attorney General's Office, said that although complying with the act cost the state more than it would have lost in federal grant money, the overall benefit goes beyond the dollar figures.

"For the most part, police prefer for sex offenders to be registered under the Adam Walsh Act," she said. ..Source.. by Brian Bowling, PITTSBURGH TRIBUNE-REVIEW

Read More of Article...

Article Summary only...

Va., D.C. miss deadline to join national sex offender registry

7-29-2011 Virginia, Washington DC:

Virginia and the District will lose hundreds of thousands dollars in federal law enforcement grant money after failing to meet a deadline to join a national sex offender registry.

Maryland, however, was one of only 14 states to be found in compliance with the five-year-old mandate created by the Adam Walsh Act. State officials weren't expecting to meet Wednesday's deadline because Maryland laws keep violent juvenile sex offenders on a nonpublic registry for up to seven years, not the 25 required by federal mandate. But earlier this year, the Justice Department signaled it was willing to interpret those rules more broadly, which allowed Maryland to be included. D.C. is the farthest of the three from being in compliance, and the D.C. Council won't be taking up the issue until this fall, if ever. The city will lose about $250,000 in federal dollars used to buy bulletproof vests, police vehicles and other equipment. Virginia will lose about $500,000.

"The Justice Department has been imploring states to get in compliance for years, and at some point the extensions had to end to give the states the incentive to get in line," said Brian Durling, a Heritage Foundation senior fellow. The Justice Department granted states two one-year extensions. "Uneven laws among the states allow bad guys to game the system."

Virginia State Police Lt. William Reed Jr., said the commonwealth is working with the Justice Department to reach the standards.

"We think we do a good job. We have a high compliance rate with our registry," Reed said.

Virginia isn't compliant yet because it's still up to a judge's discretion to put a violent youth offender on the registry, he said. The federal mandate is for all violent youth sex offenders to be on the registry. The state also requires sex offenders to update their pictures every two years. The mandate requires annual updates, among other issues. Virginia officials estimate it would cost $10 million to meet the federal guidelines.

D.C. Councilman Phil Mendelson, whose public safety committee is handling legislation meant to make the city compliant, has said he's not sure the laws are necessary.

But Maryland sex offender registry manager Elizabeth Bartholomew said meeting the goals means the state will better track sex offenders -- particularly as violent youths grow into dangerous adults.

She added, "It's important to law enforcement not to lose even a little bit of money in today's economy." ..Source.. by Freeman Klopott | Examiner Staff Writer

Read More of Article...

Article Summary only...

Worth Reading: Unclear and Unconvincing Evidence in SORA Hearings

4-21-2011 National

"The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.

Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to our shaming punishments that were used earlier in our history to disable offenders from living normally in the community."

Smith v. Doe, 538 U.S. 84, 109 (2002) (Souter, J., concurring)

Editor's Note: This article has been modified to reflect a Correction.

The Sex Offender Registration Act (SORA) is based on the assumption that "sex offenders" are a distinct class of people with an incurable compulsion to sexually assault other people. Unlike with other ex-offenders, the state actively obstructs their re-integration into the community after they have served their sentences. For persons adjudicated as presenting a high or moderate risk of sexually reoffending, SORA imposes onerous registration requirements and a lifetime of public stigma, making normal civic life impossible.

Because SORA creates a permanent deprivation of protected liberty interests, its constitutionality is conditioned on providing significant due process protections. These include the right to a judicial hearing to determine risk level. Since the statute presumes that all sex offenders are a danger to public safety, everyone under SORA is automatically "level one" by default. But if the state seeks a level two or three designation, i.e., moderate or high risk, it must prove the supporting facts by clear and convincing evidence.

Unfortunately, judicial rulings have not always upheld the statute's due process protections. Instead of holding the People to their burden of proof, some rulings have adjudicated SORA registrants as high or moderate risk based on accusations in the criminal complaint, grand jury testimony or even internal law enforcement documents that have never been corroborated or cross-examined. Not only does this result in "sweeping in a significant number of people who pose no real threat to the community," it is a jettisoning of basic, hard-won principles of our legal system. If accusations are presumptively true, what do we need a judicial hearing for?

SORA encompasses anyone convicted of an offense from a long list of felonies and misdemeanors, many not involving public safety and some not even involving sex. All persons under SORA are subjected to registration requirements and "community notification." Persons adjudicated as high or moderate risk have their names, photographs, addresses and other personal information displayed on a website that is unrestrictedly available to anyone in the world—which goes far beyond "community notification." This global stigmatization subjects them to every kind of discrimination and harassment, resulting in homelessness, unemployment and severe impingements on their personal and family lives. Over 32,000 persons in New York State bear the legal status of "sex offender." About 2,000 persons are added every year. Well-documented research, including findings of the Bureau of Justice Statistics, has shown that, contrary to the premise of SORA, sex offenders as a whole reoffend at a lower rate than other offenders, while most sex offenses are committed by first-time offenders.

Most sex offenders do not reoffend. The vast majority of sex offenses against children are not committed by strangers lurking around schools and playgrounds, but by family members and acquaintances. A 2008 study analyzing statistics compiled by the New York State Division of Criminal Justice Services concludes that, for those reasons, public notification has had no meaningful impact on sexual reoffending.

"Sex offenders" have replaced drug addicts as the scapegoat for society's anxieties about raising children in a complex world. A few years ago the bogeyman was the drug dealer hanging around schoolyards getting your child addicted to drugs. Before that, it was the Communist brainwashing your child to take orders from Moscow. Before that, it was the witch in the gingerbread house. How much easier to rail against "sex offenders" than deal with the more intractable and controversial problems of parenting, health care or education.

Some New York rulings apparently accept the popular wisdom about sex offenders and appear wholly unskeptical of SORA's claim to be a purely regulatory measure for public safety. The SORA hearing becomes in effect a second sentencing where the People get a second bite at the defendant under a nearly non-existent standard of proof.

Regardless of what the public thinks of sex offenders, judicial rulings have to uphold the constitutional protections that SORA mandates. Clear and convincing evidence is a high standard, requiring proof that is unequivocal and highly probable. It is not a sliding scale depending on whether the defendant is a sex offender or an insurance company. No just legal process considers bare accusations as proof of anything, regardless of whether they are sworn.

Some have sought support from People v. Mingo, 12 NY3d 563, where the Court of Appeals concluded that, under the specific facts of the case, a complainant's accusations in a criminal complaint constituted clear and convincing evidence. The Court noted that the police officer who wrote the complaint had a duty to record, alluding to the business records exception. Mingo also commented that grand jury testimony is "sufficiently trustworthy for SORA purposes" because "although not subject to cross-examination, this evidence is taken under oath, a significant but not indispensable indication of reliability."

However, this is pure dicta, since the reliability of grand jury testimony was not before the Mingo Court. Had it been at issue, the Court would have had to consider cases such as People v. Geraci, 85 NY2d 359, 365 (1995), which say exactly the opposite: although grand jury testimony is taken under oath, it is unreliable because it has not been cross-examined.

The purpose of the grand jury has never been to create substantive evidence but only to determine whether the defendant may be accused of a crime. Not only are the accusations inherently one-sided and not subjected to cross-examination, they are elicited in a secret proceeding by a prosecutor who has no duty to present a balanced case. Therefore, not only is an indictment proof of nothing, grand jury testimony uncorroborated by a conviction has always been considered inherently unreliable.

Mingo also provides no justification for the People's practice of using grand jury minutes as they please in SORA hearings. Had the admissibility of grand jury testimony been at issue, the Court would have had to consider its longstanding holding that, where the People seek to use grand jury testimony in a related civil case, they must, like any other litigant, first seek a written court order based on a showing of a compelling and particularized need.

And Mingo certainly did not intend to alter the business records exception, which applies only when the declarant has a duty to report. A crime victim has no such duty, and the recording police officer is not the declarant unless he has personal knowledge of the facts. In sum, Mingo must be narrowly read.

Public safety is not served by throwing basic principles out the window. SORA is a cruel and foolish law born of unreason and vindictiveness and a throwback to the days of displaying sinners in the marketplace in stocks.

It does nothing for public safety while causing great misery to individuals and creating a permanent underclass. The statute nevertheless requires a high showing before permitting the drastic lifetime deprivation of protected liberty interests that results from being publicly stigmatized by the state as a sex offender. Courts are bound to uphold this protection. Lorca Morello is a staff attorney at The Legal Aid Society. ..Source.. Lorca Morello, staff attorney in the Criminal Appeals Bureau, was published by The New York Law Journal on April 18, 2011.

Read More of Article...

Article Summary only...

QUOTE: From Article Trying to Prevent Registrant's from Voting in Schools

5-3-2011 Indiana:

A rather foolish Indiana lawmaker is proposing barring registrants from voting in schools, even when there are no children present. World renown expert had the following to say:

"Multiple criminal justice officials and parents told The Times they would like the state Legislature to pass a law barring sex offenders from entering schools while they are listed on the registry. Some sex offenders must register for 10 years while others have lifetime registration requirements.

Critics of such restrictions cautioned against barring registered sex offenders from schools.

David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, said the majority of sex offenders target people in their existing social networks -- not random children who are under supervision in schools. He also said 90 percent of new arrests for sex crimes against children involve people with no prior sex offense history.

Robert Hundt, a private therapist who has worked with sex offenders for about 15 years, said preventing registered sex offenders from entering schools could affect parents who are on the registry and would perpetuate the stigma against them.

"We want to make sure not to shoot ourselves in the foot by possibly making it so hard for offenders to live that we're actually increasing their risk," he said." SOURCE

Read More of Article...

Article Summary only...

The Two Faces of Hudson's Commerce Clause

1-19-2011 National:

Professor Corey Rayburn Yung (John Marshall, Chicago) wrote earlier this month on St. Louis Today that Judge Hudson (E.D. Va.) hasn't been entirely consistent in his views on the Commerce Clause.

Recall: Judge Hudson ruled last month that the individual health insurance mandate in the federal health care reform legislation exceeded Congress's Commerce Clause authority because it required a positive act (and didn't merely prohibit action)--a popular position among those who argue against the mandate's constitutionality.

But Yung points out that Judge Hudson ruled just over a year earlier that a different federal requirement to act was well within Commerce Clause authority. That case, U.S. v. Dean, involved the federal Sex Offender Registration and Notification Act (SORNA) and its requirement that sex offenders registered with the comprehensive national registration system that SORNA created--whether or not they cross state lines. Yung:

In the case of health care reform, opponents have argued that Congress' power extends only to "activities" and that the so-called "mandate" actually punishes people for "inactivity"--failing to purchase health insurance. In the case of sex-offender registration, a similar "inactivity" is being regulated: failing to register with the government. Like Hudson, every federal appellate court that has reviewed the federal sex-offender-registration law has found it to be within Congress' powers.

Despite the similarities between the statutes, the more recent opinion by Hudson is radically different from when he reviewed the federal sex-offender-registration statute. In his opinion regarding the health care law, Judge Hudson wrote that in order to "survive a constitutional challenge, the subject matter must be economic in nature . . . and it must involve activity."

That clear statement of law simply cannot be reconciled with his prior opinion because a failure to register as a sex offender is neither economic nor activity.

Judge Hudson wrote this in Dean:

When evaluating the impact of an activity on interstate commerce, the [Fourth Circuit] commented that "the question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact." With this principle in mind, the Fourth Circuit concluded that "even though the comprehensive federal registration system created by SORNA may implicate a sex offender who does not cross state lines, the potential for recidivism and flight across state lines of all sex offenders is sufficiently real and substantial to be taken as a serious and extensive part of the larger interstate problem, justifying the comprehensive regulation. The court found further support for its conclusion in the fact that Congress's regulatory scheme would be severely hampered unless all sex offenders were required to register.

As a result of the Fourth Circuit's analysis . . . this Court finds that the registration requirements detailed in [SORNA] are valid under the Commerce Clause. . . .

Dean, 670 F. Supp. 457, 460 (citations omitted, emphasis in original). (Judge Hudson's refers to the Fourth Circuit case of U.S. v. Gould, which upheld the federal criminal penalty for sex offenders who travel across state lines and fail to register, but which did not directly opine on the federal regulation to register in the first place. Again: this regulation applies whether or not a sex offender crosses state lines.)

Judge Hudson's analysis above seems to apply with even greater force to the individual mandate.

But more: Judge Hudson went on to write that the Necessary and Proper Clause provided additional support for this conclusion. And notably he cited no Fourth Circuit case for this part of his opinion, suggesting that he wasn't merely and begrudgingly following the Fourth Circuit's reasoning in Gould but (if there were any doubt) also using his own judgment, thus underscoring the inconsistency with his more recent health reform ruling. ..SOurce.. Constitutional Law Professors Blog

Read More of Article...

Article Summary only...

State Ex Post Facto Clauses and the Adam Walsh Act

1-13-2011 National:

Given the recent opposition of states to enact into their state laws, the Adam Walsh Act (SORNA Title), one wonders if their is a conflict with respect to state ex post facto clauses. In other words, "Can a State Constitution's Ex Post Facto Clause PREVENT a State from enacting the Adam Walsh Act's Retroactive requirement?"

After reviewing all state constitutions and enacting laws of U.S. Territories who are subject to SORNA, I've found some very interesting things that should be mentioned. I am bypassing consideration of any Tribal laws, sources are most difficult to find and may even delve into traditional beliefs rather than actual law. I'll leave that for some scholar in their spare time. Further, according to this news article "There are a total of 248 Sex Offender Registration Jurisdictions." which means there are some 198 Tribal laws to also be amended.

STATE EX POST FACTO CLAUSES: Generally in state constitutions: "No ex post facto law shall [ever] be enacted," some include "ever." Yet, other State Constitutions have wording that may go farther, or are subject to interpretation, they are:

Maryland	Art. 17. That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.
Colorado	Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.
Massachusetts	Article XXIV. Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.
Missouri	Section 13. Ex post facto laws—impairment of contracts—irrevocable privileges.—That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.
Tennessee	11. Ex post facto laws: That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.
New Hampshire	[Art.] 23. [Retrospective Laws Prohibited.] Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses.

Of these ex post facto clauses, New Hampshire is the only one that covers both, civil and criminal laws. Remember, courts are ruling AWA is regulatory (civil) and not criminal. But, unfortunately, NH's version does not say "shall be made" it says "should be made" and I can see some judge playing with that distinction based on public safety. And, it will be interesting to see what happens when these states make changes according to SORNA and see how they dance around their ex post facto clauses.


STATES WITHOUT EX POST FACTO CLAUSES: There are seven states that do not have a "ex post facto clause" in their state constitution. They are Delaware, Ohio, Connecticut, Kansas, New York, Vermont and Hawaii. I will assume the Virgin Islands has none as well since I could not find their enacting laws.

The SMART Office has said -as of 1-1-2011- that, four states are in compliance with SORNA, Delaware, Ohio, Florida and South Dakota. And of those four two have no ex post facto clauses: Delaware and Ohio. Remember the Ohio decision, it was not decided on the "ex post facto clause" guess that was because Ohio has no ex post facto clause in their state constitution.

So how do we explain Florida and South Dakota being declared in compliance? We don't but I would look to those states for the next lawsuit based on their State ex post facto clauses. However, their case law may stop such lawsuits, someone will have to look into that aspect.

DEFINE EX POST FACTO VIOLATION: Lets start with these definitions:

Legal:
A misnomer in that actually two Constitutional clauses are involved. The U.S. Constitution's Article 1 Section 9, C.3 states: 'No Bill of Attainder or ex post facto Law shall be passed,' and Section 10 says: 'No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law. . . .'

The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

Quote from Calder: "I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender."

Dictionary:
: a criminal or penal statute that imposes a punishment for an act not punishable when committed, or alters to the defendant's disadvantage the punishment prescribed at the time of the act, or takes away from the substantial protection afforded the defendant by the then existing law; also : a civil or criminal law enacted with a retrospective effect.

"Changes the punishment" has been the cry, but look closer at the four points from Calder -v- Bull. Maybe the courts have lost the subtle four by only thinking, or being directed by a State Attorney General, to "changes the punishment." I challenge everyone to study those four points and look again at the FACTS of cases which courts have said, there is no ex post facto violation. Maybe lawyers also need to study AWA and present cases slightly differently?

IS THE ADAM WALSH ACT AN EX POST FACTO LAW? Despite what you read and hear around the Internet, AWA -SORNA Title- is NOT a ex post facto law (EPF)! If SORNA was a EPF law, courts would have issued an injunction to stop its operation 100%, and no one would have to follow it.

SORNA is a federal law, and using Guidelines, SORNA directs State lawmakers to conform state registration laws to the requirements of SORNA. But, we must remember those Guidelines have no force of law, in other words, states can simply ignore them and make no changes. I'm skipping SORNA twisting state arms if they do not make changes, that for another day. i.e., 10% reduction of Federal Byrne Grant Funding.

So, using the Federal Guidelines state lawmakers make changes to their state registry laws. Now, in order to run into a state ex post facto violation, some change made by state lawmakers, has to violate the state Constitution's ex post facto clause. Mere belief that a law is a ex post facto violation will not make it so, facts of a case, applied to the new law must show the violation.

Example: State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Ohio changed its classification system to one required by SORNA. SORNA merely assigns a tier to a registrant based on the crime they committed years ago. Ohio assigned its State Attorney General's office (the Executive branch of government) to make these changes under a new state law which resulted from the federal guidelines. The problem that caused is, prior to the new law (actually two laws), all classifications (tier assignments) were done by Judges in a hearing (the Judicial branch of government).

After many Ohio registrants took the State to court, the court issued a decision but it did not say, the new law was a violation of the state's ex post facto clause! WHY? Simple, Ohio's Constitution has no ex post facto clause in it. (see chart below). Instead, the court said, the two new laws violated constitutional separations of powers requirement.

Now, what the court effectively said, is, that judicial decisions cannot be undone by a different branch of government. i.e., The State Attorney General's office action had to be reversed. However, not every registrant classified by the AG had to be reversed, only those whose prior classification were done by a judge, before the date of the two new laws.

In essence, the Ohio Supreme court upheld the principle of "ex post facto" and upheld the new law that flowed from SORNA as to those AG classifications done after the date of enactment of the new law.

The Adam Walsh Act was not held to be a ex post facto law by Ohio's Supreme court. OK, lets speculate, suppose Ohio did have a ex post facto clause in their constitution, and the court held it was violated. Surprise, AWA still would not have been held to be a ex post facto law! Why? Because the law that caused the violation, in our example here, is the state law that was changed by state lawmakers.


Right now I cannot think of another situation where, SORNA required a state to do something, and the state did it, and a case took that action to court like in Ohio, and the state supreme court handed down a decision saying the state's ex post facto clause was violated.

Yes, there are a few cases still in courts and maybe have raised similar issues, but as of right now, the courts have not rendered decisions. When they do, if it relates to the state's ex post facto clause, I will return to this paper. If anyone knows of such a case, I'd love to review it and post it here.

For now, have a great day and a better tomorrow.
eAdvocate
Sex Offender Research, All Rights Reserved! © 2010

---

FOOTNOTES:
States with links to individual ExPost Facto Clauses

Alabama (#)(1875 Const)	Alaska	Arizona	Arkansas (#)	California
Colorado (**)	Connecticut (No EPF)	Delaware (No EPF)	Dist of Columbia (Fed)	Florida
Georgia	Idaho (#)	Illinois	Indiana	Iowa
Kansas (No EPF)	Kentucky	Louisiana	Maine	Maryland (**)
Massachusetts (**)	Michigan (#)	Minnesota	Mississippi	Missouri (#) (**)
Montana	Nebraska	Nevada (#)	New Hampshire (**)	New Jersey
New Mexico (#)	New York (#) (No EPF)	North Carolina	North Dakota (#)	Ohio (#) (No EPF)
Oklahoma	Oregon	Pennsylvania	Rhode Island	South Carolina
South Dakota (#)	Tennessee (#) (**)	Texas	Utah	Vermont (No EPF)
Virginia	Washington	West Virginia	Wisconsin (#)	Wyoming
Mariana Islands (#)	Puerto Rico (#)	Virgin Islands (@@)(No EPF)	Hawaii (No EPF)	Guam (#)

NOTE: Each state is linked to a legal source (U.S. Supreme court source Justia) for that state's constitution, or, where the Justia's link was no longer active, a source from a URL that was under that state's control. The idea was to link only to official or reliable sources. Please see "Legends in Chart" following the chart.Legends in Chart:
(@@) Means no source law existed to check;

(**) Means there was something unusual about the wording with respect to their ex post facto clause;

(#) Means, the source is a state URL and not the U.S. Supreme court case law site Justia site;

(No EPF) Means that state has no ex post facto clause in their state constitution;

Alabama (1875 Const) The most recent Alabama Const. is 1901, but for unknown reasons it simply does not exist on the Internet, and apparently others have tried to obtain copies as well, all have failed. Accordingly, I have resorted to using the 1875 Constitution.

Sex Offender Research, All Rights Reserved! © 2010

Read More of Article...

Article Summary only...

What did the DOJ say about the Adam Walsh Act Guidelines? SORNA is Applicable to WHO, Effective, WHEN?

UPDATED 1-5-2011 Washington DC:

Yup, something has happened, but what the heck happened today? Many sites are getting it wrong or partially wrong, so lets hit the highlights.

The Department of Justice issued a FINAL statement as to the retroactivity of AWA's SORNA today. FINAL? Well, until they find it does not suit their liking because today's statement allows some to escape registration or a Failure to Register conviction. Right, they are re-intertpreting something said, by the USAG, back in 2007. Today, final THEN, is not final NOW, its been temporary from THEN to NOW.

Today they say, its FINAL and effective 1-28-2011. YES, the end of the current month of January 2011.

Two things have happened that folks need to know about:

1) Today the DOJ issued a FINAL statement as to retroactivity of SORNA;

2) They announced a new interface system to the federal register to comply with NEW transparency requirements for ALL federal agencies. As much as folks affected by the retroactivity do not want to hear about this portion of whats happened, they NEED to know about it, as this NEW WAY is the way future announcements will be made, should there be future AWA or SORNA Guideline changes made, and I'm sure there will be. More on this in a later commentary.

OK, lets cut to the actual links if folks want to read them (need BIG cup of STRONG coffee, and, some TUMS):

A) Link to NEW system of explaining the SORNA Guideline: Office of the Attorney General; Applicability of the Sex Offender Registration and Notification Act (Covers transparency requirements).

B) Link to the Federal Register explaining the SORNA Guideline: Office of the Attorney General: Applicability of the Sex Offender Registration and Notification Act

I have received e-mails asking for my opinion on this aspect or that aspect of this new Guideline. Folks, these new -err revised- Guidelines are likely being explored by legal scholars across the nation. And, lawyers too as they can generate income if they can get6 clients back into court on some aspect of these revised Guidelines. Since constructions abound, I am going to touch on a few points I believe are most important, which doesn't mean there are no others.

Public Comment Issue: Throughout the Federal Register explanation are statements about Public Comments received, and darn near all of them have been dismissed under the guise of a misinformed public or comments were without valid support. Maybe, but I doubt this, the USAG or the SMART Office, whoever is actually doing the interpretation of the Public Comments received, maybe they missed the fact that, many of the comments were submitted by major organizations and legal scholars as well, not to mention lawyers. Misinformed, without support, how about either or both the USAG or the SMART Office, whoever actually read those public comments, is in denial. Lets move on to more truths.

Fairness Issue: Within the Guideline is a long discussion of "fairness" and the DOJ concludes that, "Fairness" must give way to "Public Safety." Most interesting about that, is, laws govern "fairness" but "Public Safety" is but a perception used (or misused) by the DOJ.

Juvenile Sex Offenders: Here is the DOJ take on them, that is those with past dealings with the criminal justice system, notice I did not specifically say "convictions" quoting from the federal register p-81852:

"In relation to juvenile delinquent sex offenders, the operation of registration systems may entail a relaxation of confidentiality requirements that might otherwise apply in juvenile proceedings, but that is the case whether the delinquency adjudications occur before or after SORNA’s enactment. The confidentiality of juvenile proceedings is generally a matter of legislative discretion. With respect to juveniles at least 14 years old adjudicated delinquent for particularly serious sex offenses, Congress has made a policy judgment that the public safety interests warrant a departure from strict juvenile confidentiality policies. See 42 U.S.C. 16911(8); H.R. Rep. No. 218, 109th Cong., 1st Sess. Pt. 1, at 25 (2005)"

So State lawmakers, no matter what you have learned from 20-30-40 years of dealing with juvenile sex offenders and the studies you may have to back up your policies, the NEW Congressional Policy wants all that thrown away, if they are 14 or older crucify them for the rest of their lives on public registries. So sayeth Congress!

Somewhere there has to be state lawmakers who are willing to step up and say, to Congress, have you heard of the 10th Amendment? If not, go read the U.S. Constitution, and Mr. Congress here is what we ARE GOING to do! Exactly what we have done in the past, which is backed up with evidence. Its time to stop an out of control Congress!

Who isn't required to register: I must admit when I first reviewed this DOJ disaster I did not notice this, while the intent of SORNA is to require everyone to register, there is something hidden which is rather GOOD, yes I said good:

SORNA reserves its requirement of lifetime registration for the most serious category of sex offenders (‘‘tier III’’), and even in this category the registration period may be reduced to 25 years in certain circumstances if the registration requirement is based on a juvenile delinquency adjudication.

The registration period for tier II offenders is 25 years, and the registration period for tier I offenders is 15 years, which may be reduced to 10 years in certain circumstances. See 42 U.S.C. 16915.

The registration period begins to run when a sex offender is released from imprisonment for the predicate sex offense, or at the time of sentencing in connection with a nonincarcerative sentence. See 73 FR at 38068.

Hence, for example, if a person was released from imprisonment in 1980 for a sex offense that places him in tier II, his SORNA registration period based on that offense ended in 2005—whether or not he was ever actually registered for the offense— and he is subject to no present registration requirement based on SORNA, absent conviction for other sex offenses. This limits the potential impact of SORNA’s applicability to sex offenders with pre-SORNA convictions.

A light in the tunnel, a golden egg, for some previously convicted of a sex crime (this could be for Grandpa who now is in a nursing home or such), but this was not expected and is not easily found in the write up. see p-81851 Fed Reg.

OK, am I happy about this classification system, no, not at all! It tells the public nothing about the registrant TODAY, everyone knew the person was bad the minute s/he broke the law, which is why s/he was punished. But, did that person learn anything from that punishment? That factor cannot be obtained from this nonsensical AWA classification system, which ignores the TODAY aspect. Off my soap box.

The good -the Golden Egg- in this revised rule, study closely WHEN the term on the registry BEGINS. WHEN the person is released from incarceration, my guess as to anyone paroled it means when parole ended. BUT, never before in AWA guidelines have they said WHEN the term of registration starts the clock ticking. AND, that point is retroactive. Excepting for LifeTime registrants, the 15 or 25 years is calculated, from that retroactive point, forward.

Especially important is, see what is underlined, that says, "even if the person never registered, if that period (term on registry) has past, they no longer have any registration requirement." They are automatically removed from the registry, given there is no requirement to register. Remember, the registry is only for folks who are required to register. Never before has this been spelled out as the example shows. This is fireworks, the 4th of July celebration, for some folks (Hey Grandpa, remember that sex crime conviction you have, from 30 years ago, well forget it, come on back into the house, you're no longer homeless).

To find out WHO, do the calculation AFTER 1-28-2011 (effective date of these revised Guidelines), then you will know who should be on the public registry. But, can you look at the registry and do this calculation for anyone you see on the public registry? Opps, no you can't, missing data (when they were released from incarceration), another unintended consequence? The SMART Office must realize this, but I wonder just how SMART that office is, or could this be a gotcha clause?

The whole point is, the registrant will know when s/he is no longer requires to report for anything with respect to a FEDERAL sex offender registration requirement (SORNA requirement).

Lets think about this for a moment, on a FEDERAL QUESTION: if a registrant crosses state lines and does not register and is stopped by the police, what is likely to happen? Right, s/he is arrested, there is no way to talk oneself out of being arrested, so off to jail until the mess can be sorted out. So much for life during that period. So as to the FEDERAL question this can be sorted out likely by a few phone calls, if the police are willing to make them, before going to court, or paying for a lawyer.

BUT, as to a STATE QUESTION, there is no forced requirement in the Adam Walsh Act (SORNA) for states to follow the same system as the feds, using the same calculation methods. So, as to the person -no longer required to register according to federal law- they are now entrapped when they cross state lines and do not register. My comment to this is, unintended consequences, or is this -conflict between state and federal laws- an intended consequence to entrap registrants and get them back into the system of SORNA requirement? The SMART Office may be smarter than we think.

So this golden egg for some, may ultimately have a foul smelling yoke, under certain circumstances. This is proof that, those who claim AWA's intent is, to make all states the same, is simply not going to work.

I am going to close my comments, and I may return to them when others have also reviewed them, always nice to hear other opinions. But there is one more glaring point to make.

Underneath these revisions is the fact, that they are revisions, which means what existed before now has new meaning according to the eyes of the current USAG, or the SAMRT Office, whoever is doing the interpreting. That makes AWA dangerous, in the future, because the interpretation of AWA is in the hands of whoever is in power at the moment. The Republicans, who originally enacted AWA (under suspension of the rules, when such should not be used for things as major as this issue), are coming! As Paul Revere would say.

Finality means? It has no definition if one has a sex crime in their background. That is why Advocates and former offenders must join together and continue to seek ways to change the laws.

For now, have a great day and a better tomorrow.
eAdvocate

BTW: I have received e-mails on one specific topic: Will this OVERRIDE state laws and state constitutions? The answer to this question will vary from state to state, and, SORNA recognized this issue and addressed it within SORNA. See Sec 125(b) State Constitutionality. , 42 USC 16925 (b) State constitutionality.

Read More of Article...

Article Summary only...

Senator to push states to comply with sex offenders law

This is the same nonsense spewed for years by most lawmakers. In fact, if the only point is that there be a national search-able data base (singular in nature, which isn't necessary if one has experienced programmers) then it appears the federal folks need to modify their programs to fit -the already existing- state programs, not the reverse. Problem solved! It seems there needs to be serious changes made in Washington DC, and not in computer programs!

11-23-2010 Washington DC:

WASHINGTON - A senator who sponsored a key provision in the Adam Walsh Act mandating better tracking of convicted sex offenders wants the Department of Justice to stop allowing states to ignore a key provision of the law.

Sen. Byron Dorgan, D-N.D., said Thursday he would ask the Justice department to stop giving extensions to the 46 states that have failed to come into compliance with the landmark 2006 law.

The first deadline for the states was in July 2009. The deadline has since been extended twice.

Dorgan said that, without extensions, the states risk losing tens of millions of dollars if they don't update their tracking systems -- and in some cases pass state laws -- by the current July 2011 deadline.

Because states keep their own sex offender databases, their records often don't sync well with files from other jurisdictions. A driving idea behind the Adam Walsh legislation was that uniform definitions and bookkeeping standards would help form a more seamless national tracking system, helping make sure convicted sex offenders don't slip through the cracks.

"This is life or death. We either do this and we're going to have a national search-able database, or we're not," said Dorgan, who retires in January from the Senate. "If we do it, we will provide much greater protection."

"Life or Death, whose," -Lawmakers Pride-, if it hasn't been done for years, why do it now? It appears lawmakers sent to Washington get a big head -grandiose ideas-, and those sitting back on the state levels -facing reality- simply do not agree with Washington's pompous big wigs.

Dorgan said he would put this request in a formal letter to U.S. Attorney General Eric Holder.

Dorgan's action comes less than two weeks after a Scripps Howard News Service investigation found that the location of 100,000 convicted sex offenders is unknown to authorities.

In all, more than 700,000 offenders have been convicted of a sex crime in the United States -- a number that has grown by 100,000 since 2006, according to records from the National Center for Missing and Exploited Children.

At issue is the Sex Offender Registration and Notification Act, which is part of the Adam Walsh law.

The registration provision requires a three-tiered offender classification system and the listing of offenders for between 15 years and life, depending on the severity of the crime.

Only four states -- Delaware, Florida, Ohio and South Dakota -- have the upgraded systems in place, though some other states are close to being onboard.

Kara McCarthy, a Justice department spokeswoman, said she's not aware of any plans to offer states another extension, but couldn't say whether more time has been ruled out. "I don't know what the attorney general is thinking," she said.

Under the Adam Walsh law, states that don't update their sex offender tracking may lose 10 percent of their share of funds from the Edward Byrne Memorial Justice Assistance Grant program, the primary federal source of funds for state and local criminal justice programs.

Previous deadlines to enact the tighter sex offender rules came and went without the Justice department withholding the grant money.

"It's now time to say to the rest of them, 'Look, you've had time to comply if you've decided not to comply, here's the penalty -- you're going to lose a portion of your Byrne Grant funding'" Dorgan said. ..Source.. by ISAAC WOLF

Read More of Article...

Article Summary only...

National sex offender registration struggles to take hold

8-1-2010 National:

Earlier this month, the state of North Dakota received another extension from the federal government, putting off for another year compliance with a 2006 law setting national standards for sex offender registration.

Earlier this month, the state of North Dakota received another extension from the federal government, putting off for another year compliance with a 2006 law setting national standards for sex offender registration.

It’s the last extension allowed by the feds and, the thing is, the state may never comply with the law the way it’s written.

The law is better known around here for creating the Dru Sjodin national sex offender website, named after the UND student who was kidnapped and killed nearly seven years ago.

Unlike several of the states and American Indian nations that haven’t complied with the Sex Offender Registration and Notification Act, also known as the Adam Walsh act — only three states and two nations have — North Dakota doesn’t have funding problems. It has a difference of opinion.

“We’re in full compliance except for a couple of areas, and those areas are where I have policy disputes with the one-size-fits-all federal approach,” said North Dakota Attorney General Wayne Stenehjem. The state, he said, is “99 percent” in compliance.

One of those areas of differences is how sex offenders are assessed for risk. The federal law says risk should be based on the statute the offender was convicted of. North Dakota has a committee that evaluates not just the crime, but factors that could increase the risk of reoffending.

Stenehjem’s not alone. Some law enforcement experts feel the same way and have told Congress so.

Sen. Byron Dorgan, D-N.D., who wrote the part of the law creating the Dru Sjodin website, said he understands many states feel they have a better way to deal with sex offenders, but that can be addressed after they’ve come into compliance.

“The reason the Adam Walsh act, and the Dru Sjodin part of it, exists is because hasn’t been anything on the national level that works,” he said. If 47 states won’t comply, he said, there still won’t be national system that works.

At some point folks will realize just what a disaster the Adam Walsh Act is, as it permits Federal Administrative employees (SMART Office) to OVERRIDE state judges, state legislatures and constitutional rights of citizens of the states. One day they will wake up, North Dakota is blinking its eye already!

Deadline 2011

SORNA, as the law is called in the federal jargon, consolidated a patchwork of national standards for registering sex offenders and extended them to American Indian reservations.

The law memorializes two well-known victims, UND student Dru Sjodin and Adam Walsh, the son of John Walsh, host of “America’s Most Wanted.” The son’s 1981 murder inspired the father to become an anti-crime activist, eventually landing on TV.

Starting July 27, 2006, states, U.S. territories and reservations around the nation had three years to comply, and may seek two, one-year extensions, meaning the drop-dead deadline for compliance is July 27, 2011. Reservations may choose to have the states they’re in take the lead.Jurisdictions that that don’t comply risk losing 10 percent of their annual allotment of the Byrne Justice Assistance Grant, a major source of federal grants to state and local law enforcement agencies.

For some states, such as California, the cost of compliance far outweighs the loss of funding. The state’s Sex Offender Management Board said in early 2009 that compliance would cost $31.3 million a year, not including $6.8 million in one-time costs. Noncompliance, on the other hand, would risk just $2.1 million a year.

For North Dakota, which is already mostly compliant, the loss of funding would amount to $78,000 in fiscal year 2010. Stenehjem said it’s just not worth it to make the state, in his opinion, less safe.

Approaches to risk

What SORNA does is expand the kinds of offenses that require registration — for example, some juveniles who aren’t tried as adults must still register — and it requires offenders to provide more information about themselves and update that information, including their whereabouts, more frequently.

By and large, Stenehjem said he considers SORNA a good law. Sex offenders aren’t required to stay in one place and a national law will do a better job tracking them, he said.

Even within North Dakota, he said, it’ll help the state work better with tribal governments. Reservations don’t have the same kind of registration and tracking requirements as the rest of the state and, sometimes, sex offenders will head for reservations and disappear from the radar, he said.

But Stenehjem has a real problem with SORNA when it requires the state to base the risk level of sex offenders on the offenses they’re convicted of. This is the so-called “offense-based” approach, which contrasts with the “actuarial” approach of some 20 states, North Dakota among them.

The actuarial approach bases the risk level not only on offenses committed, but also factors such as the person going through sex offender treatment and holding steady jobs. States argue that this is a more accurate method of assessing risk, allowing authorities to focus finite police resources only on the sex offenders that are truly likely to reoffend.

In North Dakota, Stenehjem said, the state’s Sex Offender Risk Assessment Committee is made up of psychologists, law enforcement officials and victims’ advocates who go through every sex offender’s case to determine the risk level.

He faulted the offense-based approach because a conviction alone can give a false impression of a sex offender. For example, if the sex offender managed, through plea bargaining, to attain a conviction on a lesser charge, his risk level drops simply because it was negotiated that way between prosecutors and the defending attorney.

Plea bargaining is extremely common in the U.S. justice system with most cases never going to court.

The state committee considers the circumstances of the offense, Stenehjem and Assistant Attorney General Jon Byers said, for example, the age of the victim, the offender’s criminal history, what police said happened along with the evidence gathered compared with what the victim and the offender said. The committee also looks at other factors that raises or lowers risks, they said, for example, going through sex offender treatment or drug abuse treatment lowers the risk, as is having a steady job and a consistent place to live.

Crude instrument

There is disagreement among law enforcement experts about which approach is appropriate at the national level. In early 2009, that disagreement came before Congress again when the House Subcommittee on Crime, Terrorism and Homeland Security held a hearing to find out why so few states had complied with SORNA.

On one side are those that, like Stenehjem, think offense-based risk assessment is too crude an instrument to be effective.

“One of the fundamental problems in our field is that we tend to paint all sex offenders with the same brush,” Madeline M. Carter, director of the Center for Sex Offender Management in Silver Spring, Md., told the subcommittee. “Professionals have long recognized key differences among them. These differences relate to the types of crimes they commit, to the victims they target, to their risk for re-offense, and to the types of interventions that will most likely reduce their risk.”

SORNA may even impede states from effective management of their sex offender populations.

In Washington state, authorities may raise the risk-level of a sex offender if there were indications that he was engaging in risky behavior, said Bob Shilling, a detective in the Seattle Police Department. “This helps put precious public safety resources where they are needed the most, monitoring the highest-risk offenders.”

SORNA, he said, would not allow this.

National approach

On the other side are those that think the actuarial approach is too subjective and varies too much from state to state to work at the national level. How could there be a national system if a sex offender might be a moderate risk in one state and a high risk in another?

“Individuals who do not have a national perspective do not understand the significance of the jurisdiction-specific modifications they seek,” Laura L. Rogers, the former director of the Justice Department office charged with implementing SORNA, told the House subcommittee in a statement. The law already has flexibility for different jurisdictions, she said, and changes to make it more so would only create problems.

“There is little consistency to these various programs,” complained Rep. Louis B. Gohmert Jr., R-Texas, the subcommittee’s ranking member and a former judge. “They are not uniform in the criteria they apply or in who performs the assessments. This creates discrepancies over which sex offenders should be tracked nationwide.”

Nevertheless, states do want SORNA modified and North Dakota is among them.

Stenehjem said he’s contacted the Justice Department, which says its hands are tied by the language of the law, and congressional leaders who “listened politely” but have yet to take action.

Dorgan’s office said the only correspondence with the attorney general is a copy of a letter requesting this year’s extension.

The senator said he’s sympathetic. If states think they have a better approach, he said, Congress may address that, but the first priority is to establish a consistent national system. ..Source.. by Tu-Uyen Tran, Grand Forks Herald

Read More of Article...

Article Summary only...