Articles Concerning Sex Offender Issues ©
Articles Concerning Sex Offender Issues © |
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(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 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b). (Subsection (B) merely says one is to register when they are convicted, which is impossible for folks convicted before this law.)Next, within the USAG's "interim rule" (p8896 col 1 at the bottom) the USAG said this as to who AWA will cover: "The current rulemaking serves the narrower, immediately necessary purpose of foreclosing any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA.Notice the key word "virtually" and how it is used, he recognizes that AWA is not applicable to every single sex offender since the beginning of time. He is recognizing that there will be exceptions. While his intent is to cover "virtually" everyone, he never mentioned anything about whether Congress specifically limited what he can do. They did, but you must look into AWA to see how and when he is limited. Suppose a state said, we cannot make AWA retroactive to certain of our registered sex offenders? (Exceptions? Many states have already excepted some and it has been upheld in both state and federal courts.) Why? Because of a prior state law that exempted certain offenders from registration. Another example would be: California issued Certificates of Rehabilitation to some offenders in the past and that granted them the right to no longer register. Those folks will contest retroactive application to them. I'm also sure there are other examples. The point is, if compliance would violate a preexisting law, then states cannot do that. So, technically, if a state did not follow the USAG to the letter, then they could be -considered- out of compliance and they may lose funding. AWA anticipated such circumstances may occur and devised a remedy, a mediation of sorts, between the USAG and the state. Here is what AWA says in 42 USC 16925(b): (b) State Constitutionality-All this is wrapped up in that little word "virtually" and I'm sure there are other places within AWA that will stop the USAG from retroactive application, including federal case law! We will get to one more in a minute. So while the USAG wants everyone to think he has absolute control in the interpretation of the AWA law, the reality is he does not, he is limited by various parts of AWA. RSO's are going to have to become quasi-lawyers to find these exceptions and contest them in court through their state's highest court. Next, certain "foreign convictions" and certain "consensual sex offenses" and "juvenile adjudications" (42 USC 16911(5)(b)(c) and (8)), too involved for this commentary) are not considered sex offenses under AWA. Now, the USAG's retroactive application cannot cover those offenses, because Congress exempted those offenses and the USAG cannot override Congress. Many of those are juveniles or young adult cases which Congress chose to exempt, including those that predate AWA. The USAG is limited again, but he didn't say this in his interim rule, except by virtue of his word "virtually." Does the USAG's "interim rule" foreclose claims by former sex offenders that they should not be subjected to AWA? The USAG has this to say: "This rule forecloses such claims by making it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted." (p8896 col 2 near the bottom)With respect to sex offenders who predate AWA, I see a conflict between where the USAG earlier says "virtually" and in the above where he OMITS "virtually" and now uses "all." Is he trying to create a factoid, a de facto standard, or ignore Congressional limitations? Can the USAG override state laws or state judges decision? I think not, while he is trying to give the impression that he is godlike on this topic, the reality is his word is not final we still have a judicial system, whether he wishes to believe it exists or not. One final issue, within AWA it says, first that the USAG can make it retroactive, but it also says he must also notify each and every sex offender of their duties under AWA, including those whose convictions predate AWA, see the following: SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND TO REGISTER.Notice carefully in the "interim rule" how he omits anything about sec. 117 which places a requirement on him. Notification, lets see, isn't that what due process is all about? : by eAdvocate |
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