Archive for July, 2009

New Study: Tier 1 More Dangerous than Tier 3

July 30, 2009 Comments off

Freeman, Naomi J. and Sadler, Jeffrey C. (2009). The Adam Walsh Act:
A False Sense of Security or an Effective Public Policy?
Criminal Justice Policy Review, Online First. Sage (subscription required)
Publications, 10.1177/0887403409338565.

“With the enactment of the Adam Walsh Child Protection and Safety Act (AWA), states are required to standardize their registration and community notification practices by categorizing sex offenders into
three-tier levels in the interest of increasing public safety. No empirical research, however, has investigated whether implementation of the AWA is likely to increase public safety. Using a sample of registered sex offenders in New York State, the current study examined the effectiveness of the Adam Walsh-tier system to classify offenders by likelihood of recidivism. Results indicated that the AWA falls short of increasing public safety. In fact, registered sex offenders classified by AWA as Tier 1 (lowest risk) were rearrested for both nonsexual and sexual offenses more than sex offenders in Tier 2 (moderate risk) or Tier 3 (highest risk).”


SORNA Hearing Video Playlist

July 30, 2009 Comments off

SexOffenderIssues : Video Playlist of the U.S. House of Representatives /Committee on the Judiciary
Hearings on: Sex Offender Registration and Notification Act (SORNA): Barriers to Timely Compliance by States (from March 10, 2009)

4th Circuit Rejects Numerous SORNA Complaints

July 30, 2009 Comments off : Court Rejects Numerous Challenges to SORNA Conviction.

US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Gould’s conviction, rejected several of the arguments he had raised below.

First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould’s failure to avail himself of it was sufficient. For similar reasons, Gould’s ex post facto claim was also rejected.

Second, Gould argued that he could not comply with SORNA’s registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA’s passage. The court noted that this argument “bootstraps on his first argument” due to Maryland’s failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn’t required to register with anybody until SORNA’s passage.

Third, Gould argued that it could not be proven that he “knowingly” failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word “knowingly” modifies “fails to register” and thus relates to the Maryland state requirement that he register, not SORNA’s specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.

Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the “need for legal certainty about SORNA’s ‘retroactive’ application . . .” Delay “could reasonably be found to put the public safety at greater risk.”(Once again, it is a violation of the U.S. Constitution to make any law which applies retroactively, or retrospectively. When will these court justices read our Constitution?)

Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant “must travel in interstate commerce” and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize “local acts” undertaken after interstate travel. As explained by the court, “[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register.” That conclusion is in line with other circuits have decided the issue.

Judge Michael dissented, arguing that the AG’s reason for promulgating a rule without following the APA procedures was inadequate. Because Gould’s conviction relied upon that regulation, it must be reversed.

Federal Sex Offender Act Poses Issues for WV

July 30, 2009 Comments off : Complying with federal sex offenders act poses issues for state.

West Virginia officials are trying to determine if the state is in compliance with a federal act that would result in more stringent listings in the national sex offender registry – or whether it’s really worth trying to comply.

West Virginia State Police Sgt. Michael Baylous said the federal act would affect numerous agencies in the state. “At this time the Department of Military Affairs and Public Safety has determined that in the interest of providing efficient governmental services it would be counterproductive to comply with the requirements of the Adam Walsh Act,” Baylous said.

“This is all retroactive,” DeLong said.

States that fail to comply could lose 10 percent of their U.S. Justice Department’s Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants, she said. West Virginia’s projected share for 2009 was about $2 million, DeLong said. So the state could be out $200,000 if it isn’t in compliance.

Compliance will be difficult, said Delegate Bill Wooten, D-Raleigh, a chairman of the joint judiciary subcommittee studying the issue.

United States v. Whaley, SORNA, Commerce Clause

July 30, 2009 Comments off : US v. Whaley, No. 08-10951, SORNA, Commerce Clause.

Defendant’s conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress’s powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.
Read US v. Whaley, No. 08-10951 (or here)
Filed July 21, 2009, Opinion by Judge Benavides

USDOJ Sex Offender Case Law Update

July 29, 2009 Comments off

Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office – U.S. Department of Justice/Office of Justice Programs

The USDOJ SMART (misnomer) office posts occasional updates on case law across the nation. It is a good idea to follow these updates. Here is the most recent update:

Sex Offender Registration Law Update #27
July 7, 2009

1.Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)
•SORNA directly applicable to state offenders
Petitioners were all convicted of sex offenses prior to any sex offender registration
requirement for said convictions. The court held that 42 U.S.C. §16913(d) applies directly to
these state-convicted petitioners (and at least one military-convicted offender) and directly
imposes a registration requirement on them. Because of this direct application of federal law,
the court held that there are no State Constitutional concerns, and that the petitioners were
required to register. A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194
S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the
enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.

2.Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
•Risk Assessment
•Due Process
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year. In 2005
he was classified as a level two sex offender based exclusively on those two convictions. The
court held that he was entitled to a hearing as to his level of current dangerousness, so as to
determine if he should be required to register as a sex offender.

3.State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
•Constitutional Challenges
•Extensive Opinion
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to
the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and
helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

4.State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)
•Double Jeopardy
Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office
for registration purposes. There were two separate weeks where he failed to register. He could
only be prosecuted for one count of failure to register, as they constituted only one unit of

5.White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)
•Three-Strikes Sentence
•8th Amendment
Making some factual distinction between this petitioner in this case and the one in
Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike”
sentence as cruel and unusual punishment for a failure to register conviction), the court denied
White’s Habeas petition.

6.People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
•Mandatory vs. Discretionary Registration
Ranscht was convicted of one count of sexually penetrating a minor. Because he was
similarly situated to an offender convicted of unlawful sexual intercourse—the only
distinguishing factor between the offenses being the nature of the intent which must be proven—
it was a denial of equal protection to require him to register as a sex offender. An ‘unlawful
sexual intercourse’ conviction in California makes the requirement to register discretionary,
rather than mandatory.

7.State v. Payan, 765 N.W.2d 192 (Neb. 2009)
•Notification: Punitive
Nebraska has a procedure by which a person can be deemed to have committed an
“aggravated offense”, which requires lifetime registration. That determination is one that is
made by the trial court judge. The court held that the Court’s determination is sufficient for
making a determination regarding registration, as that is civil in nature. However, relying on the
Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination
regarding community notification was punitive in nature and required a jury determination that
an offender, in fact, committed an “aggravated offense.”

Change ‘Ridiculous’ Sex-offender Law

July 29, 2009 Comments off : Change ‘ridiculous’ sex-offender law.

Regarding Senate File 340 (Iowa’s Adam Walsh Act), which went into effect on July 1: Instead of having the 2,000-foot residency restrictions for all sex offenders, that restriction will be gone for many of them. In its place come the exclusionary zones.

The whole law is ridiculous. Iowa was informed to comply with the National Adam Walsh Act or probably lose some federal stimulus money.

You will never keep children safe as long as politicians care more about getting re-elected than they do about the constitutional rights of all people.

Bureau of Justice statistics show the recidivism rate for sex offenders is between 3 percent and 5 percent. Sex offenders have a re-arrest rate 25 percent lower than for all other crimes.

Only 10 percent of sex abuse is done by a stranger. This law won’t do a thing to change this. Fear of having a loved one put on the sex-offender registry has the misguided effect of lowering the reporting of these crimes.

Get rid of the sex registry. If you are an administrator who decides on hiring someone, take the time to call your local authorities.

Give law-enforcement personnel the information they need, but not the public. The public does not know what to do with this information sanely.