MD- Federal law ties funds to tougher state restrictions

. 12-8-2008 Maryland:

States have a choice: They can fall in line with a federal sex offender law by enacting broad new restrictions on offenders by next summer, or risk losing federal anti-crime money.

But even residents of states that choose not to adopt the federal law could be affected by it.

Offenders and their lawyers say the government is improperly using the law, the Sexual Offender Registration and Notification Act, to impose restrictions on offenders convicted years ago.

“The big problem we’re having here is people are being prosecuted for federal failure to register when SORNA hasn’t even been implemented in states,” said Paresh S. Patel, an assistant federal public defender in Greenbelt.

Federal defenders across the country are challenging SORNA on many grounds.

Patel represents Brian L. Gould, convicted in 1985 of assault with intent to commit sodomy, whom the federal government successfully prosecuted for failure to register as a sex offender under SORNA. He also represents convicted murderer and rapist Michael E. Kennedy (see related story, page 10B), who unsuccessfully petitioned a judge to stop his parole officer from making him register.

Both cases are on appeal to the 4th U.S. Circuit Court of Appeals.

Congress passed SORNA in 2006 as part of the Adam Walsh Child Protection and Safety Act, named for the abducted and slain son of “America’s Most Wanted” host John Walsh. SORNA expands the number of people required to register, increases the information governments must collect about registrants and the information they can disclose to the public, and toughens penalties for failing to register.

Under the terms of the law, states must pass SORNA-compliant laws before July 27, 2009, or lose 10 percent of their funding through the Edward Byrne Memorial Justice Assistance Grant program.

Maryland received $2.2 million in Byrne money in the 2008 fiscal year.

Sarah Matz, a public affairs specialist at the Department of Justice, said the office in charge of ensuring the states’ compliance is not keeping track of how many states have already brought their laws in line with SORNA. Every state is “working toward something,” though, and states can apply for up to two one-year extensions, she said.

Patel said not a single state is complying yet.

Juvenile offender registration

Maryland has made some changes in its sex offender laws to bring them closer to SORNA, such as collecting offenders’ e-mail addresses and vehicle information, according to Elizabeth Bartholomew, who is in charge of the state’s registry.

But Maryland has not adopted SORNA’s three-tiered structure to determine how long someone must register as a sex offender. Under SORNA, offenders would have to register for 15 years, 25 years or life, depending on the nature of the crime and their behavior.

Maryland’s current system has only two tiers, 10 years and life.

Bartholomew said uniformity in the supervision tiers would be helpful. As is, if a registered offender moves to Maryland from another state that uses different tiers, Maryland has to figure out how long he should remain on the registry.

Maryland is also out of compliance with SORNA’s requirement to register some offenders who committed their crimes as juveniles, Bartholomew said.

Some find that requirement troubling.

“It seems to be changing the rules without notice,” said Lisae C. Jordan, legislative counsel to the Maryland Coalition Against Sexual Assault, a victims’ advocacy group. “All states are balancing the amount of funding with the effect that the law would have and also looking at efforts to change the Adam Walsh Act.”

Bartholomew said offenders themselves are closely following states’ decisions on the act.

“I get phone calls and e-mails weekly from offenders looking for information on whether Maryland plans to enact Adam Walsh, because they don’t want to move here if we do,” Bartholomew said.

But “you don’t want to pass a law … just for the purpose of preventing sex offenders from other states from coming into your state,” she said.

Complicating the matter is that some sex offenders would prefer Maryland to enact SORNA because it would give the state an intermediate stop between 10-year and lifetime registration. Today, an offender required by his home state to register for 20 years might have to stay on the registry for life in Maryland, Bartholomew said.

Bartholomew said bills that would have brought Maryland into compliance with SORNA had never made it out of committee. Senate Judicial Proceedings Committee Chairman Brian E. Frosh and House of Delegates Judiciary Committee Chairman Joseph F. Vallario Jr. did not return calls seeking comment.

Law deemed retroactive

Michael Kennedy served 20 years in federal prison. He has been out on parole since 2000. Earlier this year, his parole officer ordered him to register as a sex offender, citing SORNA.

Kennedy sued to stop state and local authorities from making him register.

Patel argued that Kennedy would only be required to register once Maryland passed a SORNA-compliant law.

“Once it’s implemented, then sure, it retroactively applies to everyone,” Patel said.

Until then, he said, the SORNA provisions are “meaningless guidelines.”

The government disagreed. Federal prosecutors argued that the U.S. attorney general made SORNA retroactive, meaning those who committed their crimes before the law was passed had to register.

Patel said Kennedy’s case is stronger than Gould’s, since prosecutors admitted Kennedy would not be required to register under Maryland law alone.

But Judge Benson E. Legg rejected Patel’s argument, pointing out that federal courts in other jurisdictions have already decided the issue in the government’s favor.

“As Kennedy acknowledges, the Commission has broad authority to impose conditions on his parole that are reasonably related to his offense and personal characteristics,” Legg wrote in a memorandum opinion.

“Kennedy agreed to abide by the conditions of parole imposed upon his release from prison, which include the requirement to ‘report for registration with your state sex offender registration agency as directed by [Kennedy’s] U.S. Probation Officer,’” Legg wrote. “He may not avoid this condition now.”

Assistant U.S. Attorney Bonnie Greenberg, who argued the Gould case before the 4th Circuit, said there is nothing to indicate that Kennedy’s case will end differently than similar ones around the country. She said all states are subject to the Adam Walsh Act, whether or not they have passed laws adopting its provisions.

U.S. Attorney for Maryland Rod J. Rosenstein said Legg had good reasons to find that Kennedy should be on the registry.

Legg wrote that Kennedy’s probation officers noticed “a number of troubling interactions Kennedy had with women in the community during the first few years of his parole,” including accusations that he was aggressively pursuing a romantic relationship with a woman and that he sexually harassed women at his job.

The memo points out that a therapist thought Kennedy posed a “moderate risk” of re-offending.

He is now registered; his name, picture, date of birth and address, plus the offense for which he was convicted, are available through Maryland’s registry.

Kennedy said he has already served his sentence. People like him don’t need to register as a sex offender, he said.

“People that have done their time, gotten out and had no further run-ins with the law shouldn’t be on there,” Kennedy said. ..News Source.. by CARYN TAMBER, Daily Record Legal Affairs Writer