7-26-2011 Washington DC:
In May of 2010 the Office of the U.S. Attorney General (USAG) proposed supplemental guidelines for the Adam Walsh Act, Title-1 SORNA. One part dealt with registered sex offenders' "Travel Restrictions" when leaving the U.S. and "Domestic Travel Restrictions" within the U.S. (Hereafter collectively referred to as "Travel Restrictions"). (See details below)
In the 5-2010 proposed supplemental guideline it clearly said, the authority which permits the USAG to create these travel restrictions is 42 USC 16928. In reality 42 USC 16928 does not permit creating these "Travel Restrictions." In fact, 42 USC 16928 states:
§ 16928. Registration of sex offenders entering the United States
The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this subchapter. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.
Many folks from the public, including some former sex offenders, submitted comments about these "Travel Restrictions" objecting, because 42 USC 16928 does not create authority for these restrictions. (In total there were 313 comments submitted on various topics including these travel restrictions, and 278 of them can be viewed here. Note: It is unknown why 35 comments have disappeared, but that is for another day).
The USAG 1-2011 Response to public comments (See detail below) said, the public does not understand the legal basis, then cited a completely different law 42 USC 16914(a)(7) as authority now. In other words, it appears the USAG realized there was a ERROR in the Proposed Supp Guideline, and tried to two step out of a error.
There is no way anyone able to read could misinterpret what the Proposed Supp Guideline relied on (See verbatim below), and that will not support the travel restrictions as written in the 1-2011 Final Supp Guideline. Clearly the final supp guidelines are now in question.
With that said, lets move on to 42 USC 16914(a)(7) the new authority the USAG now relies on. It states:
§ 16914. Information required in registration
(a) Provided by the offender
The sex offender shall provide the following information to the appropriate official for inclusion in the sex offender registry:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex offender.
(3) The address of each residence at which the sex offender resides or will reside.
(4) The name and address of any place where the sex offender is an employee or will be an employee.
(5) The name and address of any place where the sex offender is a student or will be a student.
(6) The license plate number and a description of any vehicle owned or operated by the sex offender.
(7) Any other information required by the Attorney General.
Carefully consider that, setting time limits (at least 21 days in advance) within which a person must act, is controlling and restricting their movements. And by requiring significantly more information in a registration (i.e., every place a person might stay on vacation in one or more foreign countries) before a person goes to a foreign country, automatically implicates "Failure to Register" penalties for non compliance within time limits, should the "At Least" not be met or preventing the person from leaving the country, even considering the exception of getting SMART Office pre-approvals under exceptional circumstances.
The use of 42 USC 16914(a)(7) to accomplish all this, is way beyond what it was established for. Restricting a persons movements implicates Constitutional questions, and that would overstep what an Administrative Agency is permitted to do.
It is clear the public was mislead by the Proposed Supp Guideline, and has not had any opportunity to comment on the USAG -two step- taken in the Final Supp Guideline.
So, the public is left wondering, as I am, is this legal and is it constitutional?
Honestly folks, I have no idea. ACLU and other lawyers, where are you?
For now, have a great day and a better tomorrow.
eAdvocate
Below are the USAG's Proposed Supp Guideline and the USAG Response to public comments and complaints about the travel restriction portion:
5-14-2010: USAG PROPOSED Supplemental Guidelines for SORNA
II. Interjurisdictional Tracking and Information Sharing
A. International Travel
Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67.
To that end, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions if they intend to commence residence, employment, or school attendance outside of the United States, and that jurisdictions that are so informed must notify the U.S. Marshals Service and update the sex offender’s registration information in the national databases. See 73 FR at 38067.
1-11-2011: USAG Supplemental Guideline Response:
Some commenters claimed that there is no authority for the Attorney General to adopt notice requirements concerning sex offenders leaving the United States, or concerning domestic travel by sex offenders, because 42 U.S.C. 16928 only directs the Attorney General to establish a system for informing relevant jurisdictions about persons entering the United States who are required to register under SORNA.
These commenters apparently did not understand the legal basis for the Attorney General’s adoption of additional requirements relating to reporting of travel or intended travel by sex offenders. Such requirements are adequately supported by 42 U.S.C. 16914(a)(7), which provides general authority for the Attorney General to expand the information sex offenders are required to provide for inclusion in sex offender registries. The reporting requirement relating to intended international travel adopted in these supplemental guidelines is expressly premised on § 16914(a)(7), as are preexisting reporting requirements adopted in the SORNA Guidelines relating to international and domestic travel that go beyond those expressly stated in SORNA itself, see 73 FR at 38056.
International Travel
Part II.A of these supplemental guidelines exercises ‘‘[t]he authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information * * * to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel.’’
Some commenters objected to this requirement on the ground that it would prevent sex offenders from engaging in legitimate international travel, because it may be necessary for sex offenders to travel abroad for business, familial, or other reasons without being able to anticipate the need three weeks in advance. However, these supplemental guidelines recognize that there may be circumstances in which requiring 21 days advance notice would be unnecessary or inappropriate, and expressly allow jurisdictions to adopt policies accommodating such situations subject to approval by the SMART Office.
