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May 13, 2010

Big changes to the sex offender registration provisions of the Adam Walsh Act proposed

A helpful reader forwarded to me an e-mail that summarizes big news concerning federal sex offender registration laws coming from DOJ today. Here is the text of that e-mail:

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

  • Gives jurisdictions discretion to exempt juvenile offenders from public website posting
  • Provides information concerning the review process for determining that jurisdictions have substantially implemented
  • Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
  • Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
  • Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
  • Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
  • Requires jurisdictions to have sex offenders report international travel 21 days in advance
  • Clarifies mechanism for interjurisdictional information sharing and tracking.

They are posted in today’s Federal Register. Interested parties have 60 days to submit comments. Find the document here.

May 13, 2010 at 04:42 PM | Permalink

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Comments

Wow! They have this much administrative flexibility? What can they do next without the tiresome step of legislation?

Posted by: brunello | May 13, 2010 5:54:23 PM

Yeah, I have significant problems with that too brunello. Points number one and three really seem out of place. I don't understand how they can make those changes without changing the law.

I'm going to say this though. This is exactly the type of thing Kagan would approve of. Because who needs Congress when you have the executive.

Posted by: Daniel | May 13, 2010 7:33:38 PM

The short story is that the government already has a massive database.

Posted by: George | May 13, 2010 8:17:43 PM

not sure why you have a problem with number 3

"•Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only"

Seeing as that is supposedly illegal under our constitution anyway.!

about friggin time they brought the law in line with it!

Posted by: rodsmith | May 13, 2010 9:08:31 PM

Can someone advise whether/how this affects pending SCOTUS case Carr v. U.S.?

Posted by: margy | May 13, 2010 9:21:52 PM

It doesn't affect Carr at all.

Posted by: FPD | May 14, 2010 12:32:31 AM

The pretzel law.

However, while the Guidelines discouraged the
inclusion of sex offenders’ Internet identifiers on the public websites, they did not adopt a
mandatory exclusion of this information from public website posting, which the KIDS
Act now requires. See 42 U.S.C. 16915a(c); 73 FR at 38059-60.

The authority under 42 U.S.C. 16918(b)(4) to create additional mandatory
exemptions from public website disclosure is accordingly exercised to exempt sex
offenders’ Internet identifiers from public website posting. This means that jurisdictions
cannot, consistent with SORNA, include sex offenders’ Internet identifiers (such as email
addresses) in the sex offenders’ public website postings or otherwise list or post sex
offenders’ Internet identifiers on the public sex offender websites.

snip

The change also does not limit the discretion of jurisdictions to include on
their public websites functions by which members of the public can ascertain whether a
specified e-mail address or other Internet identifier is reported as that of a registered sex
offender, see id. at 38059-60, or to disclose Internet identifier information to any one by
means other than public website posting.

The exemption of sex offenders’ Internet identifiers from public website
disclosure does not override or limit the requirement that sex offenders’ names, including
any aliases, be included in their public website postings. See 73 FR at 38059. A sex
offender’s use of his name or an alias to identify himself or for other purposes in Internet
communications or postings does not exempt the name or alias from public website
disclosure.

How long before someone who happens to have the same "alias" (email user name) gets mistaken for a sex offender and killed? Elderly Bithlo man beaten to death after being mistaken for sex offender.

Law is a very crazy thing.

Posted by: George | May 14, 2010 3:42:15 AM

rod- I am not sure if I read the 3rd correctly. It seems to me they are saying that sex offenders or those who qualify can be put back on the registry for committing a non-sex offense felony crime, after the fact. FUrther, if I read it correctly because I am not a fan of "legalese", it is giving discretion to local government to list people, even if the crime was not a felony or if there was no crime at all, only that some action in their past qualifies.

Please tell me I misinterpreted that and set me straight, because it sure SOUNDS like they are going to allow local governements to list people forever, if they so choose, based on no extra crimes committed, only punishing further than their original sentence.

Posted by: tbucket | May 14, 2010 11:11:20 AM

tb your reading it wrong. When the illegal AWA was activated by the USAG he made it retroactive back to the beginning of time.

What this is saying is that state's can now dont' have to go back and dig up 20-30 year old convictions and force them to register like the NAZI's in ohio are now doing. Instead it will only come into play if they comitt a and are convicted of a new felony. Only question would be if that's ANY felony conviction or just a new felony sex crime.

I also liked this part!

"•Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting"

I can see 20-30 thousand lawsuits hitting New York State now since they are busy violating their own laws as we speak and they post that information when when their own law says not too.

Posted by: rodsmith | May 14, 2010 12:10:32 PM

This PDF link is not working for me. Can you please check it?


I would like to read this. It sounds very interesting and thank you for finding this.

Posted by: constitutionalfights | May 14, 2010 2:39:07 PM

So what will ohio do now? Doesn't this new act make it so the 26,000 ohioans who were punished after the fact do not have to be, or will they all end up moving to different states that are not so Nazi?

BTW- Thanks Rod, for my family, that is a breath of fresh air. It doesn't mean I am going to quit fighting for my brother's or anyones rights, not while people are dying for no reason. That link above was scary.

Posted by: tbucket | May 14, 2010 3:43:26 PM

"What this is saying is that state's can now dont' have to go back and dig up 20-30 year old convictions and force them to register like the NAZI's in ohio are now doing."

Doesn't it mean the states that find an ex post facto violation under their constitutions do not have to implement that aspect? But states that will likely never find an ex post facto violation can implement it as before.

Could this raise any equal protection arguments?

Maybe no one really knows what the hell it means yet.

Posted by: George | May 14, 2010 4:08:35 PM

I would not be so quick to breathe a sigh of relief tbucket.

I could be interpreting things wrong, but as I read the bullet points listed, I take them to mean a state will simply have the option to put those convicted before AWA took effect back to their old requirements. If states are just given an option rather than a mandate, it could certainly be possible that a state (even though Ohio is the focus)will elect to keep things as they are now and hope the courts agree with them.

Like you, this also affects someone in my family so I try to do the research I can on their behalf.

I have not gotten time to read the actual PDF yet, so their might be some clarification in it. As I said though, just from reading the points, I'm not reading that these are mandates but rather guidelines to allow states to try and become compliant quicker.

Please correct me if I am wrong though.

Posted by: Anonymous | May 14, 2010 4:09:17 PM

yea i had trouble with the link as well. what i had to do was right click and save it to my harddrive then open it for it to work.

Posted by: rodsmith | May 14, 2010 4:50:41 PM

Point number 3 is long overdue.

In 2009, the Indiana Supreme Court ruled that the retroactive enforcement of the state registry violated the constitution on ex post facto clause Wallace, v State, 905 N.E.2d.371 (lnd.2009) and Jensen, v State 905 N.E.2d 384 (Ind. 2009).

As a result, over 1/3rd (more than 2,000) people are currently being removed from the state registry requirement. Ironically, any person currently affected by the retroactive punishment must file individually with local courts to be removed from the registry requirements.

Tort claims are snowballing.

Posted by: Joe Public | May 17, 2010 8:26:45 PM

@Anonymous & tbucket

The law currently requires offenders who had completed prior sentences but commit a new crime to register again, no matter what the conviction was for. Now the states can choose to require registration as long as the new crime is not sexual or a felony, or keep things as they are.

The DOJ is throwing the states that have not complied with SORNA a bone.

Posted by: Huh? | May 18, 2010 9:43:20 PM

The link is not working. I would like to read the article. Is there another link available?

Posted by: Ann | May 23, 2010 10:52:48 PM

Quick question. I plead my felony case down to a misdemeanor and didnt have to register until the feds forced states to take on AWA. But after reading this it seems that only felony cases would have to register? Am I right? Thanks.

Posted by: Jj | May 26, 2010 5:53:41 AM

Currently a student. I was wondering if you have heard anything about a possible amendment to the registry which would allow anyone who was convicted of a sex offense as a juvenile (specifically an offense where both parties were of the same age at time of offense) to be removed from the offender list as well as not being required to register?

Posted by: H | Sep 2, 2010 3:36:56 PM

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