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Federal AWA Has an “Out” Clause

November 11, 2009

The Federal Adam Walsh Child Protection and Safety Act of 2006 has an “out” clause.

Federal AWA has an “out” clause: a state can still be in substantial compliance if the state’s highest court rules that part of the law violates state constitution.

Federal AWA is not required to be applied retroactively; one-sentence delegation of authority to the U.S. AG (42 U.S.C. Sec. 16913(d)) Emphasized in recent United States Court of Appeals – 9th Circuit ruling: “The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders … including juvenile delinquents.” (U.S. vs. Juvenile Male, CR-05-00054-SEH)

“we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional”.

Section 113 (d) ensures that there will be a means to resolve issues about the scope of SORNA’s applicability, including any questions that may arise concerning the retroactive applicability of its requirements to sex offenders convicted prior to its enactment, and a means to fill any gaps there may be concerning registration procedures or requirements for sex offenders to whom the Act’s normal procedures cannot be applied.

Sec 16913 (d) Initial registration of sex offenders unable to comply with subsection (b). The Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this Act [enacted July 27, 2006] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.

Federal AWA requires retroactive classification of those incarcerated, under supervision (parole/probation), on a sex offender registry, and those who re-enter justice system because of another crime.

Section-by-Section Summary of the Act

Sec. 125 (b). States are not required to take action that would violate that state’s constitution, as determined by the state’s highest court. However, the state must act in good faith with the attorney general to reconcile differences between this law and the state’s constitution and the state must implement alternative procedures or accommodations to fulfill the purposes of this law. (Consultation with state governor, attorney general, legislature is not mentioned.)

Sec 125 (b) STATE CONSTITUTIONALITY.— (1) IN GENERAL.—When evaluating whether a jurisdiction has substantially implemented this title, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this title because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s highest court.

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