7-20-2009 West Virginia:
CHARLESTON, W.Va. -- West Virginia officials are trying to determine if the state is in compliance with a federal act that would result in more stringent listings in the national sex offender registry - or whether it's really worth trying to comply.
West Virginia State Police Sgt. Michael Baylous said the federal act would affect numerous agencies in the state.
"At this time the Department of Military Affairs and Public Safety has determined that in the interest of providing efficient governmental services it would be counterproductive to comply with the requirements of the Adam Walsh Act," Baylous said.
The Adam Walsh Child Protection and Safety Act of 2006 requires sex offenders to be grouped into three tiers for a national registry, House Judiciary attorney Stacy DeLong said.
Tier 1 includes a 15-year registration for a "catchall" of misdemeanors and felonies; Tier 2 includes a 25-year registration for sexual offense cases involving minors and child pornography; Tier 3 is a lifetime registration for cases involving force, threat, children under 12 and kidnapping, DeLong said.
"This is all retroactive," DeLong said.
This is a very interesting comment, retroactive, because if that is true and an offender is supposed to be classified based on the crime convicted of rather than any normal determiniation of risk to the community, THEN, the "term on the registry" ought to be calculated from the date of the crime. That makes sense, retroactive, however I doubt that will occur but could be grounds for a lawsuit... Lawmakers should not be allowed to have it only their way!
Sen. Evan Jenkins, D-Cabell, who has pushed for public access to registered sex offenders' Internet aliases, such as screen names, asked if the federal law requires this information in the registry as well.
The federal law would require screen names and pseudonyms, DeLong said, along with the sex offender's real name, Social Security, home and school address, license plate number, a description of the vehicle, nicknames, real and purported birth dates and passport number.
States that fail to comply could lose 10 percent of their U.S. Justice Department's Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants, she said. West Virginia's projected share for 2009 was about $2 million, DeLong said. So the state could be out $200,000 if it isn't in compliance.
Compliance will be difficult, said Delegate Bill Wooten, D-Raleigh, a chairman of the joint judiciary subcommittee studying the issue.
"In West Virginia, as in most states, juvenile records are sealed, so it presents almost an insurmountable enforcement problem," Wooton said. "Those records are sealed."
The federal government had initially required states to be in compliance this month for the act, which includes the Sex Offender Registration and Notification Act, or SORNA, DeLong told lawmakers.
However the state - and lawmakers - may have more time, as U.S. Attorney General Eric Holder in May authorized a one-year extension of the deadline, according to the U.S. Department of Justice.
Wooton said he was not aware of the extension at the federal level.
"If it does not occur then we are not in compliance because the Legislature will lack the ability to change (the) law until next January," Wooton said.
The issue is similar to states following federal laws on seat belts and blood alcohol level or risk losing federal funds, said Senate Pensions Committee Chairman Dan Foster, D-Kanawha, a chairman of the judiciary subcommittee.
"It's not an uncommon way for the federal government to not mandate something but to make a financial incentive," Foster said.
Lawmakers will address the differences between state and federal law in future meetings and will as a subcommittee make recommendations on whether it is good public policy to comply with the Adam Walsh Act, Wooton said. Wooton's goal was to have a recommendation ready in December.
CHARLESTON, W.Va. -- West Virginia officials are trying to determine if the state is in compliance with a federal act that would result in more stringent listings in the national sex offender registry - or whether it's really worth trying to comply.
West Virginia State Police Sgt. Michael Baylous said the federal act would affect numerous agencies in the state.
"At this time the Department of Military Affairs and Public Safety has determined that in the interest of providing efficient governmental services it would be counterproductive to comply with the requirements of the Adam Walsh Act," Baylous said.
The Adam Walsh Child Protection and Safety Act of 2006 requires sex offenders to be grouped into three tiers for a national registry, House Judiciary attorney Stacy DeLong said.
Tier 1 includes a 15-year registration for a "catchall" of misdemeanors and felonies; Tier 2 includes a 25-year registration for sexual offense cases involving minors and child pornography; Tier 3 is a lifetime registration for cases involving force, threat, children under 12 and kidnapping, DeLong said.
"This is all retroactive," DeLong said.
Sen. Evan Jenkins, D-Cabell, who has pushed for public access to registered sex offenders' Internet aliases, such as screen names, asked if the federal law requires this information in the registry as well.
The federal law would require screen names and pseudonyms, DeLong said, along with the sex offender's real name, Social Security, home and school address, license plate number, a description of the vehicle, nicknames, real and purported birth dates and passport number.
States that fail to comply could lose 10 percent of their U.S. Justice Department's Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants, she said. West Virginia's projected share for 2009 was about $2 million, DeLong said. So the state could be out $200,000 if it isn't in compliance.
Compliance will be difficult, said Delegate Bill Wooten, D-Raleigh, a chairman of the joint judiciary subcommittee studying the issue.
"In West Virginia, as in most states, juvenile records are sealed, so it presents almost an insurmountable enforcement problem," Wooton said. "Those records are sealed."
The federal government had initially required states to be in compliance this month for the act, which includes the Sex Offender Registration and Notification Act, or SORNA, DeLong told lawmakers.
However the state - and lawmakers - may have more time, as U.S. Attorney General Eric Holder in May authorized a one-year extension of the deadline, according to the U.S. Department of Justice.
Wooton said he was not aware of the extension at the federal level.
"If it does not occur then we are not in compliance because the Legislature will lack the ability to change (the) law until next January," Wooton said.
The issue is similar to states following federal laws on seat belts and blood alcohol level or risk losing federal funds, said Senate Pensions Committee Chairman Dan Foster, D-Kanawha, a chairman of the judiciary subcommittee.
"It's not an uncommon way for the federal government to not mandate something but to make a financial incentive," Foster said.
Lawmakers will address the differences between state and federal law in future meetings and will as a subcommittee make recommendations on whether it is good public policy to comply with the Adam Walsh Act, Wooton said. Wooton's goal was to have a recommendation ready in December.
Legislators also planned to look at practical problems stemming from current law, based on comments by Putnam County Circuit Court Judge O.C. Spaulding.
Spaulding told lawmakers that current state laws have unintended consequences and legislators should consider fine-tuning the system so more concentration is placed on targeting pedophiles as opposed to just cases involving minors.
The judge mentioned a litigant who, as a 32-year-old married father and active church member, was retroactively ordered to register as a sex offender for a consensual sexual act that occurred when he was 18. At the time, he had been "making out" with a 14-year-old girl and was caught by her father and charged with a crime, Spaulding said.
After the man registered as a sex offender, no one would allow their children to come over to his house and his children were shunned, Spaulding said.
"He was 18, she was 14. He touched her breasts through clothing; that is a crime," Spaulding said after last week's legislative meeting. "He suffered the punishment, but he shouldn't really be on the registration list for his entire life because of it."
"I want to see them focus more on pedophiles as opposed to the broad term of the victim being a minor," Spaulding said later. "There's a clear distinction between the sexual knowledge of a 16-year-old and an 8-year-old. "
Spaulding also gave several examples of situations where sex offenders registered themselves but failed to meet the technicalities of making changes to the registration:
A registered sex offender who lived in Kanawha County and worked in Putnam County registered with both counties. When he changed jobs to Kanawha County, he reported it to that county but not Putnam County and was indicted on a felony charge of failure to make a registration change.
A registered sex offender's job required him to travel to different sites in Kanawha and Putnam counties, and so under current laws he must go to the police detachment in that county each day before going to work to tell them where he will be that day. He failed to report one day and was charged.
A registered sex offender's wife took out a loan and bought a new car for herself but both names were on the title. He was indicted for not registering her vehicle.
"I'd like to see the Legislature clarify place of employment," Spaulding said. "Does that mean where you physically are every day or does that mean the address of your employer that you work for? Or does that mean where you regularly go and then get assigned out? We need to define that."
Sen. Frank Deem, R-Wood, asked Spaulding if judges could interpret the law as they would like it to be written.
"Judges have awesome power," Deem said.
"I took an oath to follow the law," Spaulding replied. "If you don't change it, I'm going to apply it."
"I'm charged with administering justice," Spaulding added later. "I'm glad we have the law, but as times go on we have to be willing to refine it to make it apply to the people it should apply to. We shouldn't get hung up on technical violations."
Contact writer Michelle Saxton at michelle.sax...@dailymail.com or 304-348-4843.
Legislators also planned to look at practical problems stemming from current law, based on comments by Putnam County Circuit Court Judge O.C. Spaulding.
Spaulding told lawmakers that current state laws have unintended consequences and legislators should consider fine-tuning the system so more concentration is placed on targeting pedophiles as opposed to just cases involving minors.
The judge mentioned a litigant who, as a 32-year-old married father and active church member, was retroactively ordered to register as a sex offender for a consensual sexual act that occurred when he was 18. At the time, he had been "making out" with a 14-year-old girl and was caught by her father and charged with a crime, Spaulding said.
After the man registered as a sex offender, no one would allow their children to come over to his house and his children were shunned, Spaulding said.
"He was 18, she was 14. He touched her breasts through clothing; that is a crime," Spaulding said after last week's legislative meeting. "He suffered the punishment, but he shouldn't really be on the registration list for his entire life because of it."
"I want to see them focus more on pedophiles as opposed to the broad term of the victim being a minor," Spaulding said later. "There's a clear distinction between the sexual knowledge of a 16-year-old and an 8-year-old. "
Spaulding also gave several examples of situations where sex offenders registered themselves but failed to meet the technicalities of making changes to the registration:
A registered sex offender who lived in Kanawha County and worked in Putnam County registered with both counties. When he changed jobs to Kanawha County, he reported it to that county but not Putnam County and was indicted on a felony charge of failure to make a registration change.
A registered sex offender's job required him to travel to different sites in Kanawha and Putnam counties, and so under current laws he must go to the police detachment in that county each day before going to work to tell them where he will be that day. He failed to report one day and was charged.
A registered sex offender's wife took out a loan and bought a new car for herself but both names were on the title. He was indicted for not registering her vehicle.
"I'd like to see the Legislature clarify place of employment," Spaulding said. "Does that mean where you physically are every day or does that mean the address of your employer that you work for? Or does that mean where you regularly go and then get assigned out? We need to define that."
Sen. Frank Deem, R-Wood, asked Spaulding if judges could interpret the law as they would like it to be written.
"Judges have awesome power," Deem said.
"I took an oath to follow the law," Spaulding replied. "If you don't change it, I'm going to apply it."
"I'm charged with administering justice," Spaulding added later. "I'm glad we have the law, but as times go on we have to be willing to refine it to make it apply to the people it should apply to. We shouldn't get hung up on technical violations." ..Source.. by Michelle Saxton, Daily Mail Capitol Reporter
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