Is the Adam Walsh Act entrapping registrants of state registries?

3-4-2010 National:

I doubt that any registrant of a state registry hasn't heard of the Adam Walsh Act (AWA), but do they know about AWA requirements? I am not talking about what registrants read in the media or hear from politicians, or those other voices, I am talking about the specific requirements of AWA. If you are a registrant of a "state registry" have you been SPECIFICALLY told what AWA requires of you?

With that said:

How does AWA work and who is it applicable to:

Congress enacted AWA and within AWA are various Titles, each covering different subjects, the one state registrants need to be most concerned about is Title-I, SORNA which handles registration duties. Within SORNA are "various provisions" (i.e. parameters, do this and do that) which Congress wants State Legislatures to amend state laws to conform to.

It is important to understand that SORNA is a set of parameters for State Legislatures and not direct requirements for registrants of state registries, who must only conform to their ultimate state registry law.

The Department of Justice, through the United State Attorney General (USAG) and the SMART Office (which has created its own Compliance Check-List), interprets AWA and SORNA, then published Guidelines. These guidelines explain the parameters to state legislatures.

Once a state legislature decides which SORNA parameters they intend to use, sometimes interpreting them on their own, then state lawmakers will make changes to state registration law to include their decisions.

Now, remember, a state must only -substantially comply- with AWA, states do not have to follow AWA or SORNA to the letter.

How do state registration laws work?

State legislatures decide how they want to operate their sex offender registry (supposedly guided by SORNA Guidelines [i.e. parameters]) and enact laws to carry out their will.

Registrants -following their state registration laws- go in to register at a local police agency (or other assigned place). Registrants are given a form/s which has places for registrants to document the required information, and a place to sign the form/s, generally the form/s are also signed by the registering agency and forwarded to a central place where the information is entered into the state computer which ultimately creates the online registry for the public. The state keeps these forms.

Now, an important, but grey area, the form/s used by the states vary, and some states may use multiple forms.

Somewhere on one of the forms, or on the back of a form, is something which says everything a registrant has to do to stay in compliance. i.e., report annually or quarterly, report changes within 10 days, residence, schools, work addresses, etc. etc. etc. The registrant is required to sign forms.

These forms would be used in court, if a state had to prove what the registrant actually did, and, what the state told the registrant, were his/her duties. Now, as state laws change, if the change affects what registrants must do, states may require registrants to come in, or do this at next registration period, to let registrants know about the change/s. Registrants would likely have to sign new forms which the state keeps for any possible court action.

NOW A QUESTION: I don't care what state you are in, if you are a registrant of a state registry, please get your forms out (I assume you have kept copies of every form used by the state and esp. those you are required to sign).

OK, got your forms out? Look them over with a fine tooth comb for the words "Adam Walsh Act," didn't find those words? The reason they are missing from your forms is, AWA does not apply to you. Plain and simple.

Now, once a state changes its laws, supposedly to be in compliance with the AWA/SORNA parameters, then what the state law says becomes a mandate for state registrants to follow.

OK, lets move on to find the hidden AWA/SORNA mandates for state registrants. I know I said, there are none, but the hidden ones are the subject of this commentary because they constitute the entrapment I speak of.

SCENARIO: Moving from one state to another state:

Somewhere on your state forms are the following (it may be stated differently but both should be there in some fashion):

1) "If you move to another state, you must notify us xx days before you move."

2) "And you must register when you get to the new state."

Obviously, should you fail to notify the state you are currently living in (#1) within allotted time frames, you then have violated your state registry law. The punishment is outlined in your state registry law (i.e., you have been notified and due process is satisfied by this notice).

However, your state cannot order you to do anything once you leave their physical borders (#2), your state has no jurisdiction in another state. For the moment just remember #2 above.

Now, assume you do move to another state and do not register, and you are caught . If you are arrested in the new state, the prosecutor can charge you for failing to register, upon conviction your punishment would be what that state registration law says.

But, you can also be prosecuted in federal court under the Adam Walsh Act. How, you ask? Here it is, AWA has a jurisdictional hook built into it, section 2250 (which is in AWA but not in SORNA section of AWA). That section says "If one does not register when they move to another state, then they may be punished up to 10 years in federal prison."

Hey wait a minute, you say. No one told me about that, and there is nothing on my forms either. Right, you have been entrapped by a cunningly worded -and constructed- Adam Walsh Act.

Federal courts are punishing registrants for failing to register in the new state, and nowhere are registrants told about this FEDERAL REQUIREMENT until they are charged in federal court. Federal courts are accepting -as sufficient notice- (#2 above), where the state told you to do something when you get to the new state, but you failed to do it.

Now there are folks who say, make sure you register and you will not face this. True, but my point is, this is an entrapment scheme that is being perpetrated on registrants that fail to follow, what seems to be, an innocuous statement made by the state.

Federal courts are using that innocuous state comment (#2 above) as a jurisdictional hook to get these folks into federal court. Why is there such a push to get folks prosecuted in federal court you ask?

Ahhh, a few reasons, first that the punishment for failure to register under state registry laws, is usually something low or probation, and it may even be a misdemeanor. (Note: there is -built into AWA- a mandate that states UP that punishment to at least one year in prison, and make it a felony). Under federal law (AWA) the punishment is up to 10 years in the Bureau of Prisons.

A second -far more egregious reason- is, that once a federal court punishes a sex offender for failure to register -as mentioned above- then they serve their time in the Bureau of Prisons (Federal prison).

Nearing the end of that sentence, the Warden of the facility where the person is held, has to make a decision, as to, whether or not -in his/her opinion, that the incarcerated person should be held PAST his/her sentence for a civil commitment hearing. And that civil commitment hearing could result in being civilly committed for the rest of ones life.

So, under state law that offender would likely be incarcerated for a short time, or placed on probation and when that is over nothing else happens, they are returned to society. Not so under federal law, is it any wonder why I call this ENTRAPMENT? (Note: This same entrapment scheme is also used in states which have civil commitment centers; be forewarned!)

HEADS UP: Hidden in AWA is a Federal Punishment (Sec. 141 sub-section 2250) of up to 10 years in federal prison for failing to register after crossing state lines, AND, hidden even deeper is a civil commitment hearing and possible civil commitment for the rest of ones life (Sec. 302 sub-section 4248).

Now, go back and look again at your state forms, where it says "And you must register when you get to the new state (#2 above)," do you see anything saying, that this is a AWA requirement, or that you would be punished federally, if you failed to follow what it says? This is the most egregious entrapment scheme I've seen in a long time; my opinion.

Finally, does one have a FEDERAL right to be told what is required of them, and to also be told, what the punishment is should you fail to do it? Apparently, as the courts are ruling, NO!

How is this happening? State tuned for:

Part-2: Did Congress Intend to Entrap Registrants?

Part-3: Is moving from one state to another the only way one can be federally entrapped?

Have a great day & a better tomorrow,
eAdvocate