MO- Sex offenders left off list may be added

See my commentary following the news article which discusses both the Missouri Constitutional changes, and the effect on previously convicted sex offenders, AND, article comments about what other states are proposing; very important. The Adam Walsh Act is deeply involved in this ex post facto violation.

Bill seeks to overturn court's decision on retroactive registration.

5-13-2008 Missouri:

Their crimes predated laws that track their movements and broadcast their names, faces and offenses to the world.

But Missouri sex offenders with decades-old records might soon be told to stand and be counted, a practice that's already common in other states and seems to be gaining momentum as state legislatures seek to comply with federal law.

Last week, the Missouri House Rules Committee approved a Senate Joint Resolution that would require almost all sex offenders (See Senate Bill 714 for details) to register, regardless of conviction date.

The resolution seeks to upend a 2006 Missouri Supreme Court opinion that ruled retroactive registration --then common in the state -- illegal under the Missouri constitution. The decision led to the removal of more than 4,300 names from the Missouri sex offender registry.

The House might vote on the resolution as early as today. If passed, it could appear on state ballots in November.

"We're giving the citizens of Missouri an option," said Republican state Sen. Jason Crowell, a sponsor. "If we're going to have a list, everybody should be on the list.

"Sexual predators are sexual predators. Period."

--Immediately this contradicts the tiered classification system of the Adam Walsh Act, not everyone is a sexual predator. In fact, the term "predator" (predatory) is already defined in federal law, obviously Sen. Crowell is oblivious of federal law:

Title 42 Sec. 14071a(3)(E) The term “predatory” means an act directed at a stranger, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.

Clearly not everyone is predatory especially the juvenile on juvenile cases, or the Romeo and Juliet type cases. This Senator 's proposal shows he needs to do more research and reading of the laws.

Other states
Missouri is far from alone in considering the issue.

Last year, Tennessee toughened its sex offender registry laws to apply to anyone in the state who has ever been convicted of certain sex crimes. Prior to the change, only those who committed crimes after Jan. 1, 1995 -- when the state's registry law took effect -- were required to sign up.

Michigan lawmakers are mulling over a bill that would force adults convicted of criminal sexual conduct with a child to register, regardless of conviction date. Michigan enacted its registry law -- known as a Megan's Law in most states -- in October 1995, and has typically only required those convicted after that date to register.

Offenders who were in jail, on parole or on probation for their sex crimes when the law was passed also have been told to register in Michigan.

The new proposal is aimed at tracking the state's most potentially dangerous offenders, said David Law, the Republican representative who drafted the Michigan legislation.

"My concern was that I wanted to make sure we get to the worst of the worst," said Law, a former prosecutor. "Putting them on the sex offender registry is the least we can do."

The U.S. Constitution specifically bars states from passing ex post facto laws --those that punish someone for activity committed before the law was enacted. But retroactive enforcement of Megan's Laws is not a new concept.

Iowa, New York, New Jersey and a host of other states require offenders to sign up if they were on parole or probation for a sex crime when the registries took effect.

Alaska orders anyone in the state who's been convicted of a sex offense to register --a law deemed constitutional by the U.S. Supreme Court in 2003. The court found Alaska's law was a civil, regulatory measure, not a punitive one.

Tracking sex offenders
States are increasingly taking a fresh look at their registry laws.

That's partially due to the Adam Walsh Child Protection and Safety Act, signed into law by President Bush in 2006.

The law is designed in part to make it easier to track sex offenders moving from state to state.

To that end, it requires states to establish a uniform tier system for offenders, under which they are required to register for 15 years, 25 years or life based on their offenses.

The act also mandates the type of information sex offenders must provide when registering.

Such provisions have come under fire by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, which say they go too far in regulating the lives of offenders.

"It's a fiction to say that this is a civil matter when this is, in fact, an extension of the criminal punishment," said Mike Kopie, a Chicago defense attorney and co-chair of NACDL's Sex Offender Policy Task Force. "There has to be a balance between protecting the community and the rights of people to go on with their lives."

The increased strictures mandated by the Walsh Act may prompt new challenges to the retroactive application of Megan's laws, said Michael Iacopino, also a member of the NACDL's task force.

"They're requiring sex offenders to report more often, they're requiring sex offenders to report more information," he said. "It's becoming more like a probation and parole as opposed to a regulatory system."

States are expected to comply with the Walsh Act by July 2009. Failure to do so could result in the loss of federal grant money.

The National Conference of State Legislatures reported in March that 19 states have taken steps to comply with the act. Among them: Ohio, which has faced outcry over a provision that retroactively increased the period of time sex offenders in the state must register.

More than 3,000 offenders have filed suit to challenge the change, said Erin Rosen, an Ohio assistant attorney general.

Prior to the new law, the majority of Ohio's 27,000 sex offenders were required to register for 10 years, Rosen said. Now, most must register for life.

"The goal is to close loopholes when offenders move from state to state," Rosen said. "The only feasible way to do that is an offense-based classification system."

The sticky issue of ex post facto registration requirement is unlikely to go away anytime soon.

As more states begin to look at their sex offender registry laws in light of the Walsh Act, battles over retroactive enforcement could play out throughout the country, said Charles Onley, of the Association for the Treatment of Sexual Abusers.

"Up until last year, most legislation was pretty much stable," he said. "Now, it's a moving target." ..more.. by Dirk VanderHart • News-Leader

Commentary by eAdvocate:
Before we begin there are four (4) current sections of the Missouri constitution that are relevant, they are:

Section 3. Powers of the people over internal affairs, constitution and form of government.—That the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States. Source: Const. of 1875, Art. II, Sec. 2.

Section 4. Independence of Missouri—submission of certain amendments to Constitution of the United States.—That Missouri is a free and independent state, subject only to the Constitution of the United States; that all proposed amendments to the Constitution of the United States qualifying or affecting the individual liberties of the people or which in any wise may impair the right of local self-government belonging to the people of this state, should be submitted to conventions of the people. Source: Const. of 1875, Art. II, Sec. 3.

Section 13. Ex post facto laws—impairment of contracts—irrevocable privileges.— That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted. Source: Const. of 1875, Art. II, Sec. 15.

Section 41. Indirect enactment of local and special laws—repeal of local and special laws.—The general assembly shall not indirectly enact a special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed. Source: Const. of 1875, Art. IV, Sec. 53(33).


PROPOSED: New Section 13:
That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted; however, a law may be retrospective in its operation with respect to requiring sexual offenders to register with law enforcement, restricting sexual offenders from residing within a certain distance of a school or child-care facility, as required by law, or requiring every individual who pleads guilty or nolo contendere to or is found guilty or convicted of a felony to have a biological sample collected for purposes of DNA analysis.

Notice that the portion of the proposed law that mentions DNA, applies to everyone convicted of a felony, not just sex offenders. That portion is not retrospective in operation which means just those who are newly convicted.

As to sex offenders the proposed change goes beyond just registering, it includes residency issues. This now becomes a "Special Law" one covering ONLY one type of offender, sex offenders, and all of them with no exception. Yes, the news article implies there are exceptions but I have not been able to find those exceptions.

Missouri constitution Sections 3 and 4 are quite clear that its laws cannot be repugnant to the U.S. Constitution and that Missouri is subject to the U.S Constitution. I have yet to see any such changes, as Missouri proposes, as a change to the U.S. Constitution. In fact, nowhere in federal law is there anything that says, a certain group of people may not reside geographicially here or there.

Yes, there are sections of federal law which prohibit LIFETIME registered sex offenders from residing in federally substidized housing buildings, but such is not a geographical limitation. Time and time again throughout history such laws have been shot down except in time of war. i.e., Japanese folks were required to live in camps during wartime, but that has been eliminated.

The Missouri legislature recognizes that what they want to do, make registration retroactive, would be a "special law" and Missouri's constitution, section 41, prohibits the legislature from enacting such a law, that is why they are submitting it to the people who can make changes to the constitution.

Assuming that the people do pass the proposed changes, such changes would clearly be vindictive (to sex offenders who have the second lowest recidivism rate of all offenders), and those offenders who are now protected by the original constitution would still have an issue which could be brought to the U.S. Supreme court as an ex post facto violation of the U.S. Constitution which Missouri must abide by.

What other states are doing:

The article mentions Michigan mulling over a new bill to accomplish similar ends. Michigan, although it has not yet enacted provisions of the Adam Walsh Act, is attempting to enforce something which is written in the Adam Walsh Act.

Michigan is requiring folks who originally registered in Michigan and have since moved elsewhere (including folks who moved from one county to another), to return to Michigan (or the original county they registered in) and register according to its laws (or its idiot ways and special hours for registering).

This Michigan requirement, although absurd, is expecting folks who have moved out of the country to return quarterly (or in some cases annually) to complete Michigan registration requirments. Anyone who fails to follow that requirement is demed to be out of compliance and subject to arrest whereever they are in the world.

As absurd as that is, and very likely will be shot down in a court of law when tested, it is actually written into the Adam Walsh Act:

SEC. 113. REGISTRY REQUIREMENTS FOR SEX OFFENDERS.
(a) In General- A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

All I can say to all lawyers is, get this bunk into court with a quickness!

Oh yes, why is Missouri pushing to do this? Well folks, its a matter of money or the denial of money, and the person who makes that decision is a federal agency administrative employee, the U.S. Attorney General, but I'll leave that story for another day it is a long one. Actually I believe Congress, which authorized this hammer, has designed a system to circumvent state laws and state constitutions, but another day.

eAdvocate