Talk about muddy waters, this state is in a landslide of mud!
The current decision of the Missouri Supreme court violates the state's constitution, no where in the constitution does it allow the court to SPECULATE what the legislature may do IF they CHOSE to participate in an upcoming federal law. We must remember that the Adam Walsh Act (AWA) GUIDELINES are for the state legislatures, parameters for them to conform state registration laws to a federal mandate, but GUIDELINES are not law, and as such the state does not have to conform to them. Further, the 10th Amendment could also prevent the state from complying if lawmakers wanted it to; today it is unknown what lawmakers may wish to do.
Further, already in AWA is a section that says, if a state would violate its constitution then the state does not have to comply with AWA. The prior Missouri high court decison on this issue said, that forcing people to RETROACTIVLY register would violate the state constitution, hence they did not have too. With that earlier ruling in place, the high court had put finality on the issue. The new decision of the high court is SPECULATING what the legislature MAY DO, when and if they choose to enact AWA provision, and that violates the state constitution. i.e., the court is substituting its decision for what the legislature may be.
Note: To those who raise issues of the costs to implement far exceed the Byrne Grant penalties, what these folks have done is FIRST ASSUME that the USAG has acted in a manner that comports with law, and by not raising that issue have waived it. The issue of USAG acting properly is a threshold issue.
7-25-2009 Missouri:
Three rounds of legal battles in the Missouri Supreme Court still have not cleared confusion looming over the state's sex offender registry, as prior offenders are rushing to court to file new challenges.
The suits are seeking to stop local officials from enforcing new federal guidelines, which were supposed to be in place across the country by this week.
The federal law creates a national registry of people convicted of sex offenses and expands the type of offenses for which a person must register.
"It really has muddied the issue," said attorney Julie Brothers, who filed for a temporary restraining order this week in St. Louis County on behalf of an offender known as John Doe. "There are some major conflicts that are super confusing."
The confusion centers around about 4,300 offenders whom Missouri had exempted from its sex offender registry but who are required to register under the federal law, known as the Sex Offender Registration and Notification Act.
The high court court has misinterpreted the Adam Walsh Act which has a specific exemption, that if a state would violate its own constitution then it does not have to comply with the Adam Walsh Act!
Adam Walsh Act: SEC. 125. FAILURE OF JURISDICTION TO COMPLY...
(b) State Constitutionality-
(1) IN GENERAL- When evaluating whether a jurisdiction has substantially implemented this title, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this title because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction's highest court.
(2) EFFORTS- If the circumstances arise under paragraph (1), then the Attorney General and the jurisdiction shall make good faith efforts to accomplish substantial implementation of this title and to reconcile any conflicts between this title and the jurisdiction's constitution. In considering whether compliance with the requirements of this title would likely violate the jurisdiction's constitution or an interpretation thereof by the jurisdiction's highest court, the Attorney General shall consult with the chief executive and chief legal officer of the jurisdiction concerning the jurisdiction's interpretation of the jurisdiction's constitution and rulings thereon by the jurisdiction's highest court.
(3) ALTERNATIVE PROCEDURES- If the jurisdiction is unable to substantially implement this title because of a limitation imposed by the jurisdiction's constitution, the Attorney General may determine that the jurisdiction is in compliance with this Act if the jurisdiction has made, or is in the process of implementing reasonable alternative procedures or accommodations, which are consistent with the purposes of this Act.
The conflict could cost Missouri hundreds of thousands of dollars of federal grant money if the state does not comply with the federal guidelines.
Obviously, if the high court read AWA the way it is written with the exception, then there is no issue of a loss of federal grant money. See above. Accordingly all issues are resolved.
One more issue which I will explain at some point throughly is this, the USAG has waived his right to apply AWA retroactively by his failure to enact (i.e., construe) rules for notifying FORMER sex offenders which Congress SPECIFICALLY told him to do! Merely issuing a rule that says "I want it to apply retroactively" does not absolve him from doing so in a manner that provides FORMER sex offenders of their due process rights. To date he has failed to do so....
U.S. Attorney General Eric Holder has given every state a one-year extension on the deadline to meet federal standards. But as states review the situation, some lawmakers and experts are concerned about the cost of complying.
"I think the states are being really careful," said Amanda Petteruti of the Justice Policy Institute in Washington. "Most states are already doing what they can in terms of sex offender registration. They are trying to decide if it's really worth it to them to come into compliance."
LEGAL TANGLES
Last month, the Missouri Highway Patrol mailed letters to convicts who were not previously required to register under state law, urging them to now add their names to the list.
The letters were drafted after the Missouri Supreme Court released a short opinion June 16 supporting the federal guidelines. But experts say federal law contradicts Missouri's sex offender registry laws, and the high court still has not addressed the conflict.
"The lawyers are confused. The judges are confused. The cops are confused," Brothers said. "The Missouri Constitution is going to have to be amended if we comply with federal guidelines."
Two previous state Supreme Court decisions said that an offender convicted before the list was created does not have to participate. The constitution forbids the state from retroactively imposing a penalty for a conviction, Brothers said.
But the federal law applies to retroactive convictions.
In addition to mandating who should be registered as sex offenders, the federal law also includes a long list of other standards that will require states to upgrade computer software, create a plan for notifying neighbors and share data with other states.
Illinois is still working on its plan to integrate federal law into its existing sex offender registry.
Illinois officials hosted two rounds of statewide meetings to discuss the changes. Judges, police, prosecutors, defense attorneys and treatment providers weighed in.
"We discussed what compliance should look like in Illinois," said Cara Smith of the Illinois attorney general's office. "Now comes the work of taking the information we heard and structuring it into a law."
Illinois created its sex offender registration law in 1986 and expanded it in 1996. Smith said it closely mirrors federal requirements. She said meeting the federal standards is attainable.
"I don't know of any mechanical functions that would become a problem to comply," she said.
Missouri has already submitted paperwork for the federal authorities to review, said Capt. Tim McGrail of the Missouri Highway Patrol. He said the state program was changed when lawmakers passed bills in 2007 and this year to address issues like DNA processing and sharing information with other states.
"I think we have a pretty good system," he said.
COST OF COMPLYING
The federal government can't mandate states to make the changes, experts said. So instead, Congress threatened to take away 10 percent of a federal law enforcement grant if states don't comply. Missouri would stand to loose an estimated $400,000; Illinois' total loss would be about $850,000, according to the Justice Policy Institute.
Lawmakers in Virginia asked experts to guess how much taxpayers would spend on the changes. The Virginia Department of Planning and Budget decided the first year would cost more than $12 million. Virginia only stood to lose about $400,000 in U.S. grant money each year, according to the department's documents.
"With the economic crisis upon us, states absolutely do not have the money to be doing this right now," said Petteruti, who works for a foundation that lobbies for alternatives to incarceration. She said the changes do little to improve the public's safety because every state already has a list.
"The states are already doing what they can," she said.
Missouri and Illinois said they have not estimated the costs.
Smith said critics of the federal regulations raised concern about the price tag for making changes.
Petteruti said most of the money would go toward installing and maintaining new computer software that links with a national database and manpower to keep up with the paperwork and attorney fees for legal challenges. The price tag for each state will differ.
The U.S. Justice Department has offered some federal grant money to help establish a system for notifying the community when a sex offender moves, McGrail said.
"When you start talking about resources for technology, the cost could be high," McGrail said. "But we are fairly close to compliance. ..Source.. by HEATHER RATCLIFFE, ST. LOUIS POST-DISPATCH
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