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March 5, 2007

Commentary on federal failure-to-register offense

At the National Law Journal, Wayne Logan has this thoughtful piece addressing the new federal Adam Walsh Act, which includes a provision making it a federal crime for sex offenders to cross state lines and not register anew.  Here's a snippet:

This past July, Wilfredo Madera did something that millions of people do every year: He changed state residences.  His legal status, however, complicated matters.  A registered sex offender in New York, Madera was required to register with authorities upon his arrival in Florida.  As of October, he had failed to do so, risking five years in prison and a $5,000 fine under Florida law.

By failing to register, Madera joined the thousands of other individuals nationwide who daily violate registration requirements.  His case, though, would prove different in a significant way.  As a result of the newly enacted Adam Walsh Act, he would be arrested by U.S. marshals, prosecuted in federal court and subject to 10 years' imprisonment and a $250,000 fine, sanctions far in excess of Florida law.

While since 1994 Congress has pressured states to comply with federal registration expectations, threatening loss of funds if they do not, the failure-to-register provision marks a new, complementary modus operandi. Congress has now created a criminal offense, making it a federal felony to cross state lines and not register anew. In October, U.S. marshals undertook Falcon III, a highly publicized roundup of nonregistrants, including Madera, who is the first to be convicted under the new law. 

A federal trial court recently rejected Madera's several legal challenges, including that Congress exceeded its authority under the Constitution's commerce clause in federalizing what has always been a state crime. The outcome is sure to be appealed and Madera's case, or one like his, will in time likely come before the U.S. Supreme Court.

March 5, 2007 at 10:49 AM | Permalink


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I would like to mention a legal challenge to
recidivist statutes like Failure to Register
and Possession of Firearm by a Felon in state
court which presents a stronger challenge to
this new federal law.

In my opinion, a prior conviction may not,
consistent with the double jeopardy clause, be
used as an element of a substantive crime.

This new law is a recidivist statute, since
a prior conviction is a fact essential to a
finding of guilt. For decades , recidivst laws,
like career offender statutes or state habitual
felon laws , have been held constitutional
because they are sentence enhancing statuses
not crimes. Parke v Raley.

Recidivism is the classic sentence enhancing
factor, to the extent that it is an exception
to the Apprendi Rule (Almendarez-Torres).

I'm not saying a person who is a sex offender
or a felon can't be punished for doing something
that is prohibited as a result of a prior
conviction for a felony or for a sex offense, which is fail to register.

But he hasn't committed a new crime. He has
essentially committed contempt of court for
not abiding by a condition of the original

Viewed this way, it becomes problematic for a
federal law to punish someone for committing
contempt of a state court judgment.

No favorable rulings yet on the argument but
to me the logic is sound.

bruce cunningham

Posted by: bruce cunningham | Mar 5, 2007 4:57:05 PM

"But he hasn't committed a new crime. He has
essentially committed contempt of court for
not abiding by a condition of the original

I'm not a lawyer, so forgive me if this sounds ignorant...

Since most registration requirements were not retroactive until 2001, the requirement was not a condition of the original conviction. Registration didn't exist for those convicted prior to that date. So...since registration is deemed a civil regulation, not a punitive measure, I'm not sure the logic still holds. (But am certainly open to being wrong.)

Posted by: Ilah | Mar 5, 2007 8:15:07 PM

Ilah, thanks for the comments. Actually, I
think it is probably beneficial to discussing
this issue that you are not a lawyer. There
is a classic saying that "law school sharpens
the mind the same way a grindstone sharpens
an ax--by progressively narrowing from both

Let's suppose someone pleads not guilty to
Possession of Firearm by a Felon or Failure to
Register as a Sex Offender and the case is
tried before a jury. The State must prove
all the "elements" of those two "crimes." Elements
are the essential facts which constitute the
definition of the crime. But one essential
fact is that the defendant has a prior conviction
of a felony or a prior sex offense conviction.
If the State were allowed to present evidence
of those prior convictions before the jury,
unless the defendant testifies and is subject
to having their credibility impeached, I believe
it would violate due process and double jeopardy
protections. A person shouldn't be convicted
today because of what they did yesterday.

So, my main point is that prior convictions
should be used in deciding what punishment for
a crime should be imposed, not used as an
essential fact of the crime itself. There
is a huge difference, as we have seen in
Apprendi and Blakely between facts which are
used to define a crime and facts which influence
the sentence for a crime.

Are you with me so far? If so, I'll take the
next step and explain why I think both of these
"crimes" are more properly considered akin
to contempt of court, to which the right to
a jury trial does not apply.


Posted by: bruce cunningham | Mar 6, 2007 9:41:19 AM

Bruce, thanks for responding. I really do want to understand. In the cases of sex offenders, I think the punitive measure/civil regulation lines are so blurred, the states--and the feds--are trying to play both sides at the same time.

"Are you with me so far?"

I think so. Your position is that, since the new "crime" requires an old "crime" to be applied, and the old "crime" must be proved to also prove the new "crime," prosecution of the new constitutes DJ of the old. Is that correct?

If so, please continue!

Posted by: Ilah | Mar 6, 2007 2:49:10 PM

yes, there is a case called Brown v Ohio, in which the US Supreme Court held that a "lesser" offense and a "greater" offense are the "same offense" for double jeopardy purposes. Because the proof of the greater automatically proves the lesser. for example, proof of guilt to assault with a deadly weapon automatically proves guilt to assault. In my opinion, the prior felony conviction or prior sex offense conviction is a lesser offense than Possession of Firearm by a CONVICTED FELON or Failure to Register as a SEX OFFENDER. The defendant has already been punished for the prior felony, so he can't be punished again.

But, I see nothing wrong with a state passing a law that says a condition shall be attached to every felony conviction which prohibits a defendant from possessing a gun. Or a condition attached to every sex offense which requires the person to register. Then, if the guy violates the condition, by possessing a gun or not registering, he can be punished because he violated a condition of his ORIGINAL conviction. He did not commit a new "crime."

You might ask, "What difference does it make if he can be punished either way?" A big difference, because if Failure to Register as a Sex Offender is not a crime, it can't bring into play career offender status in federal court or habitual felon punishment in state court.

This is very, very slippery and complicated stuff and the body of law related to the use of prior convictions is full of contradictions and fuzzy areas.


Posted by: bruce cunningham | Mar 6, 2007 6:26:12 PM

I understand what you're saying now, and I appreciate you taking the time to explain. I try to research these issues on my own, but sometimes get snagged by not knowing the complete context in which a ruling might be viewed, or by simply not knowing certain principles that may apply.

I am still uncertain on the retroactive nature of applied "conditions of conviction," though. The registration schemes SCOTUS ruled constitutional bear little resemblance to the schemes as they exist today. In fact, each item SCOTUS pointed out as not existing at the time--points made to explain why registration was not punitive--DOES exist now.

So I guess my question is, can a punitive or non-punitive "condition of conviction" be applied post-conviction? It's particulary of interest now that the AG has issued rules stating AWA is fully retroactive.

Posted by: Ilah | Mar 7, 2007 12:44:57 PM

Don't get hung up on retroactive application of anything. Think of it like a violation of probation. Someone is convicted and put on probation. A condition is that the defendant not possess a gun, or that the def register . The probation lasts for five years. After four years, the defendant's probation officer finds a gun in his house. He's cited for violating one of the conditions of his probation. It is not a new crime. It is a violation of one of the condition of his original sentence. And he can be punished for it by putting his suspended sentence into effect. In my view, it's the same thing. The legislature can enact a law that says not possessing a gun or not registering is a condition of every felony conviction or sex offense. If the defendant violates the condition he can be punished up to a certain amount for not abiding by his conditions. In my opinion, this is the only way that a prior conviction is not used as an element of a crime.
again, if a prior conviction is an element, as opposed to a sentence enhancer, the def is being punished twice for the same offense, because under Brown, the prior is a lesser included offense

Posted by: bruce cunningham | Mar 7, 2007 2:49:10 PM

Burce, thank you again for taking the time to explain. Now I see what you're saying!

Posted by: Ilah | Mar 8, 2007 9:06:32 PM

my husband and i have lived in georgia only 6 months and hes being charged with failure to register.......... how long are we lookin at? its a first offense and my hubby isnt down as a VIOLENT offender...... his offense took place when he was only 14 years old..... and we were told that he didnt have to register here, otherwise he would have registered and now im scared georgia will take him away forever..... any help?

Posted by: stephanie | May 31, 2008 5:42:32 PM

I have a one count information charging me with Failure To Comply With Sex Offender Reporting Requirments (F3) Statue 943.0435 in the Fifth Judicial Circuit in Sumter County Florida. As of now, my lawyer is argueing that even if I did fail to comply specifically, there was no intent to deceive or evade the requirment, that I intended to registar a temporary address as soon as I had one, and that I had a permenent address registared as required. Joanne and I intend to put a package together that will include letters from my kids, Chris and Dan, Nancy, a SO therapyst, and some other friends, as well as some current recidivisim studies. My next hearing is 8/22/08 but my lawyer intends to ask for delay.

I had been working as a temporary contractor building a cement plant outside Wildwood, FL some 90 miles from my permanent SO address in Rockledge, FL. On or about 8/17/07 I was pulled over for a traffic stop. The cop said she thought I was staying in one of the area hotels because I had two other men with me when I was stopped. She told me to register a temporary address. I told the cop that I was commuting and stopped to pick up the two co-workers at the hotel. On or about 9/6/07, the same cop arrested me in the Wildwood Inn parking lot with the same two co-workers. The cops questioned hotel stafff and obtained receipts, both indicating that I had stayed there since 7/22/07. In reality, I mainly showered and ate there before I made the comute, although I did stay there a few nights. Probably less than 14 (the old time limit) but more than 5 nights...but never two nights in a row.

As far as evidence, they have an affidavid from the hotel clerk saying I stayed at the hotel and the arresting cop saying the same thing, a copy of an unsigned hotel receipt and papers indicating that I was an out-of-state SO with a permenet address in Rockledge. Any info or guidance would be appreciated

Posted by: William Pratt | Aug 31, 2008 9:07:54 AM

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