A reader posted the following comment to the Rhode Island AWA Objection, because it really pertains to the Adam Walsh Act in its entirety I thought it appropriate to address it separately. Reader's Comment:
The Adam Walsh Act appears to impinge several constitutional provisions.
First, it excludes consensual conduct between adults from its application but nowhere defines "consent" leading to arbitrary enforcement. Moreover, "non-consent" is not an element of the listed federal crimes.
Second, the Act calls upon state legislators to determine without a judicial trial who is guilty of crimes comparable to or more severe than cetain federal crimes and impose restrictions on the individuals liberty in consequence of that determination. The Act is, therefore, a prohibited bill of pains and penalties.
Third, the registration laws no doubt impose an affirmative obligation on the individual to labor on behalf of the general public and have been held to not constitute punishment. Involuntary servitude, however, can only be imposed as punishment for a crime. Finally, forced public charity is communism, plain and simple.
The reader's first issue "Adult Consensual Conduct" is a moot point since criminal law does not punish such conduct therefore it would not come under AWA in any way.
The reader's third issue "Labor on Behalf of the General Public" is also a moot point since AWA does not require registrants to perform any form of labor for the public good.
The second issue is rather interesting though, but since AWA does not require legislators to determine guilt-inoccence that portion is incorrect. However, AWA does call for a comparison of sorts to be made and that is what will be addressed.
First the portion of AWA in question:
Sec. 111(8) CONVICTED AS INCLUDING CERTAIN JUVENILE ADJUDICATIONS- The term `convicted' or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.
Now the federal statute in question:
Title 18 § 2241. Aggravated sexual abuse
(a) By Force or Threat.— Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act—
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
(b) By Other Means.— Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly—
(1) renders another person unconscious and thereby engages in a sexual act with that other person; or
(2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby—
(A) substantially impairs the ability of that other person to appraise or control conduct; and
(B) engages in a sexual act with that other person;
or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
(c) With Children.— Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison.
(d) State of Mind Proof Requirement.— In a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.
AWA defines a procedure to be followed, a comparison of the facts of an individual's crime to the elements of a federal criminal statute. While this may seem to be a simple procedure, in reality it is not so, prosecutors take painstaking care when charging someone with a crime. However, under this new AWA procedure anyone could be doing the comparison and the result determines whether the person will have to register under AWA.
Will administrative employees of local police stations have the expertise to perform this procedure? Further, will they have the documentation from the person's original court files, one must consider that in some cases persons registering may have come from other jurisdictions or other states. Cases may be years old, and then there is the retroactive application of AWA to further complicate matters. Will these reviewers set aside personal biases and prejudices? These and many other questions are left unanswered. Further, there does not seem to be any appeal of a local reviewer's decision.
Other problems also become apparent, why should these cases have such a review to establish whether or not they will register, and what Tier Level they will be assigned if they are required to register, and the remainder of the registrants are denied such a searching review before being classified and a Tier Level assigned?
I do recognize that Congress wanted to cull some cases and include others, but the parameters set for these cases exclude all other persons who will have to register. The remainder of those cases have their Tier Levels set by how much time their sentence was for, a completely different system of classifying levels.
Reader's Comment: "Impose restrictions as the result of classification"
While AWA does not restrict a registrant's liberty per se, if registration is coupled with residency laws, then yes it will restrict liberty in some cases. It will depend on how a local residency law is written.
Finally, I agree that AWA is unconstitutional on many levels, especially its retroactivity which destroyes "finality of judgement" between the state and the registrant. Said another way, retroactivity violates "Laches" in this writer's opinion. Further, there is no proof that at some point in the future Congress will again allow the states to make the laws further retroactive into a quasi lifetime sentence.
eAdvocate
1 comment:
eAdvocate said: "Other problems also become apparent, why should these cases have such a review to establish whether or not they will register, and what Tier Level they will be assigned if they are required to register, and the remainder of the registrants are denied such a searching review before being classified and a Tier Level assigned?"
Here are a few observations that I have about SORNA and registration that I'd like to share with the other bloggers:
The SORNA guidelines keep getting murkier each time I read them. Many states assign Tier Levels, with the majority of offenders being rated Tier I, based on statistical tools which take into account, among other things: ties to the community and family, length of time since the crime has been committed, severity of violence (if any), etc.
Now comes SORNA, and all of the Tiers will arbitrarily change. Either based on the similarity to a Federal offense (you are right when you question whom will analyze and compare State and Federal statutes) or on the possible (maximum, not actual) prison sentence possible.
Now, let's say the majority of offenders rated Tier I by states are now moved to Tier II and III by SORNA (because most offenses carry a possible sentence over a year).
Will these offenders be entitled due process, usually a Court hearing, as currently required by common and statutory law in most states that assign Tiers (i.e. New Jersey)? Now you have Federal administrative guidelines (which technically do not have the force of law unless enacted by the States) challenging/conflicting with State Court orders requiring due process, and State law. It will be interesting to see how the courts and the states respond. Rhode Island is just starting to realize the mess this will make.
Also, other states exclude offenders from registration via Court order (for example Conn. excludes consensual sex offenses involving minors, misdemeanor offenses, and incest offenses). SORNA says EVERYONE must register. Again you have Federal administrative guidelines challenging a State Court order and State law..
And a final point... most State statutes require a person to register for ten, twenty, etc. years, from the time they move into the State. Some states (Penna.) give you credit for the time you have been registered in another State, but most States' statutes are surprisingly silent about this so called registration time "credit". So if you have been registered for ten years (in Conn., let's say, since that is the maximum). You no longer have to register there. Now if you move to N.C., which is silent about this point, do you have to register for yet another ten year period?
None of the above is covered in the SORNA guidelines. I have emailed the SMART office, the AG, senators, etc. and no one even replies. (Please post or leave a comment if any readers have gotten responses from the AG, SMART, lawmakers, etc.) The few replies I get at the state level, its "We don't know yet" or "get a lawyer, go to Court, and get a judge's opinion".
I feel that this act is just poorly thought out, a giant clusterfark waiting to happen.
Mark in Jersey
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