Part-2: Did Congress Intend to Entrap Registrants?

3-15-2010 National:

If you have not read Part-1: "Is the Adam Walsh Act entrapping registrants of state registries?" then you may have difficulty below:

With that said:

What did Congress actually write into the Adam Walsh Act (AWA) as to notifying registrants of both, their federal and state duties?

Two sections of AWA need to be reviewed:

1) Adam Walsh Act: Title-I SORNA Subtitle-A:

SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND TO REGISTER.

(a) In General- An appropriate official shall, shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, for the offense giving rise to the duty to register--

(1) inform the sex offender of the duties of a sex offender under this title and explain those duties;

(2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and

(3) ensure that the sex offender is registered.

(b) Notification of Sex Offenders Who Cannot Comply With Subsection (a)- The Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a).

Groups of offenders identified above:

Group-1) Those previously convicted in prisons, on parole or probation, or other supervision;

Group-2) Those who are newly convicted;

Group-3) Those who cannot be notified according to Sec 117(a). i.e., previously convicted offenders who are no longer under any form of supervision.

An appropriate official shall personally notify:

1) For groups 1 and 2: A) Under state law: The state department of corrections or local jails; B) Under federal law: The Bureau of Prisons;

2) For group 3: Congress mandated (shall) that the USAG "shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a)." i.e., Congress told the USAG "To find a way to notify Group-3," to appoint an appropriate official to perform "personal notification."

So, where do we stand with notification:

As to Groups-1-2: Congress outlined a method with an appropriate official to notify those folks at both state and federal levels, hence Congress could not have intended an entrapment scheme.

As to Group-3: Congress left this up to the USAG and it would be hard to believe that, Congress wanted the USAG to setup any system, denying Group-3 the same personal notice provided to Groups 1-2.

BUT, what did the USAG actually do?

The USAG announced an EMERGENCY rule (2-28-07) to make SORNA requirements RETROACTIVE to all sex offenders, including Group-3, but he failed to prescribe any rule to personally notify Group-3 as Congress intended (Sec 117(b) above).

Effectively the USAG stood on the steps of the courthouse and hollered out "Hey, the rules are, ... .... ..." whether you (Group-3) hear this or not.

Such was not the "personal notice" Congress intended (Sec 117(b) above), and today some folks are going to prison over the failure of the USAG to do his job as Congress intended.

Note: In case you missed this "An appropriate official shall ...(Sec. 117(a)" means "PERSONAL NOTICE," nothing less...

Summarizing Sec 117: Congress did not intend to entrap, even Group-3, but the essence the USAG's actions does result in an entrapment system, because most courts are assuming they (Group-3 folks) have been notified (see note below on what courts are actually doing) and ignore or gloss over any claim of not being notified.

2) Adam Walsh Act: Title-I SORNA Subtitle-B:

SEC. 141. AMENDMENTS TO TITLE 18, UNITED STATES CODE, RELATING TO SEX OFFENDER REGISTRATION.

(a) Criminal Penalties for Nonregistration-

(1) IN GENERAL- Part I of title 18, United States Code, is amended by inserting after chapter 109A the following:

`CHAPTER 109B--SEX OFFENDER AND CRIMES AGAINST CHILDREN REGISTRY
`2250. Failure to register.

`Sec. 2250. Failure to register

`(a) In General- Whoever--

`(1) is required to register under the Sex Offender Registration and Notification Act;

`(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or

`(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

`(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

`(b) Affirmative Defense- In a prosecution for a violation under subsection (a), it is an affirmative defense that--

`(1) uncontrollable circumstances prevented the individual from complying;

`(2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and

`(3) the individual complied as soon as such circumstances ceased to exist.

CORRECTION: With respect to: (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

Below wherever I comment "crosses state lines," that should be interpreted as "crosses state or tribal lines"

This is the section that is causing all the stir in federal courts nationwide. On its face it says, if one is required to register under SORNA AND one crosses state lines AND knowingly fails to register (FTR) (or update a registration), then they are guilty of FTR and can be fined and/or imprisoned up to 10 years in federal prison, or both.

Now, the point of my commentary is, no registrant of any state registry has been notified of this FEDERAL requirement. It does not appear on any form given to state registrants and registrants are not told of this FEDERAL requirement verbally. Remember, under SORNA (Sec 117(a)(1)&(2)) forms are to be used. Registrants can check their state forms and they will not find this FEDERAL requirement on their forms.

Note: It doesn't even appear on Ohio's forms, the state that is supposedly in compliance with AWA. Obviously "personal notification" of registrants is not considered important. Or, are the construction of forms used -part of- the entrapment I am speaking of?

The Office of the Ohio Public Defender displays the forms used today: Juveniles -- Adults. Last reviewed on 3-20-2010 and may have changed since. You be the judge!

What are FEDERAL courts doing with this "notification" issue?

A) Some courts are ruling, that registrants were notified on their state forms, where the innocuous comment is made, "And you must register when you get to the new state." (See discussion in My Commentary Part-1: Is the Adam Walsh Act Entrapping Registrants of State Registries?).

However, if we were to accept that, the registrant still was not notified of the punishment should s/he fail to do that, and there is no mention of a FEDERAL law requiring registrant to comply.

At best such a holding is trickery, or proof of entrapment?


B) Other courts are glossing over notification claims, and saying "It is not a defense to a criminal prosecution that the defendant never heard of the law under which he is being prosecuted." (US -v- Mitchell, 209 F.3d 319, 322-24(4th Cir 2000).

Therein is a new problem, lawyers are not raising the issue, that sex offender laws are UNLIKE ANY OTHER CRIMINAL LAWS, in that, written into sex offender laws are requirements that registrants be told about the laws.

Congress also would not have -no need- to include Sec 117 DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND TO REGISTER. if sex offender laws were like other criminal statutes.

All state registration laws have something written in requiring state officials to notify registrants of their duty, both verbally and documenting such on forms, none of which would be necessary if sex offender laws were like other criminal laws.

"You should have known" simply doesn't apply! Source: Congress & 50 State Legislatures

Summarizing Sec 141: Here it appears that Congress is at fault, as there is no AWA mention of notifying registrants of their duty under Sec 141. However, with that said, I would think that -although unwritten- the forms required by Congress, would certainly explain the penalties for failing follow the duties explained verbally and as out lined on the forms. Right? Or, are the construction of the forms used -part of- the entrapment I am speaking of?


So lets bring this -very technical- commentary to a close: I've summarized each section, no need to repeat them, but here is a new problem:

My commentary is based on the EXACT WORDING of the above sections of the Adam Walsh Act, however, states DO NOT have to enact AWA EXACTLY as written (they only have to substantially comply), so, how will states enact these two sections? Exactly, or some other interpretation? Remember, each state is permitted to interpret AWA independently using the SMART Office Guidelines and AWA as written?

As to "notification" of registrants of their state and federal duties:

Folks, AWA -as written- is very likely different than -as enacted- by various state legislatures, so, are states required to notify registrants of the differences? Subtle differences, a few outlined above, may cause a registrant to end up in prison for up to 10 years.

Oh yes, is everything above hypothetical? No, it is based on several cases in federal courts today, one of which is USA -v- Carr awaiting decision in the U.S. Supreme court.

In reality, notification occurs through the forms used by states, and the forms fail to say one word about any federal duties. That is -one reason- why I truly believe AWA is a law of entrapment.

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

Have a great day and a better tomorrow.
eAdvocate