ACTION ALERT: Concerns with Supp. Guidelines - Section IV (Retroactive Classes)

UPDATED: 6-25-2010

6-25-2010 Washington DC:

In our original announcement of these NEW Supplemental Guidelines, the Juvenile Justice site said, that:

3) Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only.

This is questionable, below we will show what the NEW SG actually covered.

Here is the FULL text of the NEW Proposed Supplemental Guidelines in the Federal Register 5-14-2010. We will address Sec. IV Retroactive Classes based on the following from the NEW SG.

NEW Supplemental Guidelines:

Section VI Retroactive Classes Page-5 Supp. Guideline.

SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3 (Right hand column). ........

These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants.

It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense.

As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.

This allowance only establishes the minimum required for substantial implementation of SORNA in this context.

Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction’s registration law.

Sometimes it is hard to see the forest through the trees, so, the two "White-background" insets above are actually continuations of the sentence above each. No guideline is more egregious than this one, as you will see. This one amounts to discriminatory treatment of sex offenders, handling sex offenders differently than non sex offenders under similar circumstances (felonies and misdemeanors).

Lets take this from the top down, citing from the SG:

1) SORNA is applicable to everyone ever convicted of a sex offense;

2) This guideline separates sex offenders into TWO Groups: A) Those who are no longer prisoners, supervisees or registrants -AND- B) Those who are prisoners, supervisees, or registrants. Note: SORNA actually does this. 42 USC 16913 (d) and (b) respectively.

3) Effectively this guideline addresses "WHEN" Group-A should be registered. Group-A are those no longer under the umbrella of the criminal justice system, at the time when SORNA was enacted. Note: The term "criminal justice system" is used in the SG, and SORNA is considered part of the criminal justice system, also found in the SG.

4) This guidelines establishes the "Minimum" States must follow to be considered "In-Compliance" by the SMART Office. But, also allows States to be more strict if they chose to be. i.e., the theory that, SORNA is the floor not the ceiling.

Why do we consider this SG most egregious?

Discriminatory Treatment (NEW Felony Offenses):

Former sex offenders, no longer under the umbrella of the criminal justice system (Group-A), will have to register when they commit ANY type of NEW FELONY. In essence this says, these persons are a danger to society because they have committed two or more felonies, and must be watched and monitored.

However, as to any other type of felony offender, when they commit TWO FELONIES or more that are -non sex offenses-, they are not considered a danger to society and do not have to be watched or monitored.

The key to that recidivist discussion is, the guideline is based on ANY TYPE OF FELONY, not a felony sex offense.

Discriminatory Treatment (NEW Misdemeanor Offenses):

Former sex offenders, no longer under the umbrella of the criminal justice system (Group-A), will have to register when they commit a new misdemeanor -sex Offense-. In essence this says, these persons are a danger to society because they have committed two or more -sexually motivated crimes- misdemeanor following a felony offense (and maybe misdemeanor -non sex offense- following misdemeanor sex offense [SG not clear on this construction]), and must be watched and monitored.

However, as to any other type of former felony offender, when they commit a new misdemeanor in the same vein as the earlier felony, they are not considered a danger to society and do not have to be watched or monitored.

Rubbing salt into the wound:
Group-A former offenders, since they are no longer under the criminal justice system, it is very unlikely they will see these changes to the guidelines and have no opportunity to provide input to assert their positions! Another one of those HIDDEN Adam Walsh Act entrapments. If these persons knew of this, it may keep them from committing a new offense.

Accordingly, it is up to those who do see these new supplemental guidelines to assert issues for them. Everyone, former sex offenders -in the system- AND those who are -no longer in the system- must stand up for the rights of ALL. Remember, one day the term of registration -for everyone- will come to an end and release folks from registration, bar a retroactive application of a new guideline in the future to the contrary.

In fact, this should upset anyone TODAY and everyone should demand that, the guidelines treat everyone who is no longer under the criminal justice system -including those who have completed registration terms-, and DO NOT draw them back into SORNA based on non sex offenses! Or, in the alternative, treat ALL types of offenders like sex offenders are treated, and make them register as well.

Recently in Maine some 400 registrants were released from their requirements to register, likewise in Ohio the Attorney General is right now putting old classifications back into place based on the Ohio supreme court decision, some may not longer have to register. These persons, and others like them, will again have to register under SORNA if they commit a NEW non sexual Felony or if they commit a new sexual misdemeanor, according to this new guideline. And we have yet to find out if this SG change will be applied retroactively. Need anymore be said as to why everyone needs to address this supplemental guideline change?

Accordingly, an appropriate comment might go like this:

OAG Docket No. 134

To Whom It May Concern:

The supplemental guideline (IV. Retroactive Classes) brings sex offenders who are no longer in the criminal justice system, which includes former sex offenders whose registration terms have expired, back under SORNA requirements, if they commit a NEW felony or misdemeanor, including those which are not sex offenses.

It is discriminatory to force sex offenders to return to the criminal justice system (which includes SORNA requirements [see SG]), based on NEW non sex offenses, when non sex offenders are not required to return to the criminal justice system (in any fashion similar to SORNA), based on NEW non sex offenses.

Clearly the Supplemental Guideline (IV. Retroactive Classes) is discriminatory, based on felonies and misdemeanors, and violates equal protection under the law.

Thank you.

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