UPDATED: 6-23-20106-20-2010 Washington DC:
In the NEW Supplemental Guidelines, section titled "II. Interjurisdictional Tracking and Information Sharing" there are three sub-sections A-B-C. In this commentary we cover C. Acknowledgement Form.
PROBLEM: In the Proposed Supplemental Guidelines (SG), "II. Interjurisdictional Tracking and Information Sharing (C-Acknowledgement Forms)" the USAG through the SMART Office has interpreted SORNA to require State Registrants to sign an acknowledgement form, that states, registrants know the requirements of SORNA. The SG (when finalized) are then sent to State legislatures who are supposed to enact laws per the guidelines, including any forms required by the SG.
While State lawmakers are quick to enact changes to laws, so far, none have done anything about conforming State forms to SORNA requirements. So, the result is, the State forms NEVER MENTION anything about SORNA requirements, but mention ONLY what that state requires. This lack of SORNA notice creates hidden significant problems for some registrants, under special and unusual circumstances.
Scenario: Suppose a registrant goes on vacation, crossing state lines or multiple state lines, and is stopped by the police, when the police check, the registrant is not registered in that state. Registrants, can be or are, prosecuted in Federal court, where the forms signed by the registrant -in the home state- are presented in court, along with the Federal Guidelines, and the registrant is ultimately convicted of FTR (Failure to Register) and faces up to 10 years in prison (SORNA's penalty for FTR).
Effectively this happens: The court holds the signed acknowledgement form from the -home state- in one hand, and the SORNA Guidelines in the other hand, the court can only come to one conclusion, defendant knew about the SORNA Guidelines and violated them, then convict registrant. Lawyers are not aware of the subtle tricks crafted into SORNA, and do not do enough research to find them.
It is never mentioned that the State failed to inform the registrant of SORNA requirements, the court assumes he was notified, end of case. This is an onerous piece of legislation which entraps registrants.
Special and Unusual Circumstances: Other scenarios are: death in the family in another state, medical emergencies, registrants living on state borders, may cross state line to attend a movie, medical appointment, or even church services, etc. (Likely there are more but folks have mentioned these)
Also in the NEW SG is an attempt to control DOMESTIC movements of ALL registrants (See Concerns with Supp. Guidelines - Section II (A International Travel) REVISED POINT-2). Clearly a death in a family (an emergency) -in another state or country- could very well cause a registrant to be away from home 7 or more days, and may even involve International travel. Folks are advised that TWO comments may be required: 1) for the DOMESTIC movements control; and, 2) Here pertaining to the forms used by States.In the recent case of Carr -v- US (US Sup court), Carr raised the failure to notify about SORNA requirements (in the District Court) and the court glossed over it because of what the State form said, which he had signed. There was no way Carr knew of the FEDERAL Sec. 2250 law and punishment!
Specifics follows:
In the Federal Register (5-14-2010) is the FULL text of the NEW Proposed Supplemental Guidelines. I will be addressing TWO POINTS based on the following from the SG and something found in the Final Guidelines from 2008.
NEW Supplemental Guidelines:
SG Section II Interjurisdictional Tracking and Information Sharing--Final SORNA Guidelines issued July 2, 2008 found in that day's Federal Register:
C. Acknowledgement Forms
SORNA provides that sex offenders are to be informed of their registration obligations and required to sign acknowledgments that this information has been provided upon their initial registration. See 42 U.S.C. 16917. ......
SORNA requires jurisdictions to provide criminal penalties for sex offenders who fail to comply with SORNA’s requirements, see 42 U.S.C. 16913(e), and Federal criminal liability is authorized for sex offenders who knowingly fail to register or update a registration as required by SORNA under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250.
Successful prosecution of sex offenders for registration violations under these provisions may require proof that they were aware of a requirement to register. The acknowledgment forms signed by sex offenders regarding their registration obligations are likely to be the most consistently available and definitive proof of such knowledge. ........
The authority under 42 U.S.C. 16914(b)(8) to expand the range of required registration information is accordingly exercised to require that sex offenders’ signed acknowledgment forms be included in their registration information. The existing Guidelines already provide that acknowledgment forms covering the SORNA requirements are to be obtained from registrants as part of the SORNA implementation process and thereafter. See 73 FR at 38063–65.
Final SORNA Guidelines Page-4:
Additional implementation tools the SMART Office is developing include: ......... checklists that jurisdictions will be able to use to evaluate whether the SORNA requirements are met in their programs and to structure their submissions to the SMART Office establishing SORNA implementation; model forms that jurisdictions will be able to use to inform sex offenders about their obligations under SORNA; and model ......
SORNA Final Guidelines Page-35:
The specific initial registration procedures required by section 117(a) are as follows: Informing the sex offender of his or her duties under SORNA and explaining those duties. (Of course if the jurisdiction adopts registration requirements that encompass but go beyond the SORNA minimum, the sex offender should be informed of the full range of duties, not only those required by SORNA.)
Requiring 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. ...........
With respect to sex offenders with pre-SORNA or pre-SORNA implementation convictions ............... —jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible, including fully instructing them about the SORNA requirements, obtaining signed acknowledgments of such instructions, ............ .........
Note: The Final Guidelines -as printed in the Federal Register- are NOT EXACTLY in the same format as the copy on the SMART site. The SMART site copy seems to be an interpreted version. I have never checked them word for word, I'll leave that to some energetic person. I prefer to work from the official copy in the Federal Register.
POINT-1: States fail to follow SORNA Guideline requirements -on State forms registrants must sign- which places many registrants in peril of arrest under "Special and Unusual Circumstances."
Reviewing the "Final Guidelines" it is clear, States are to inform registrants about "SORNA Requirements" "In Addition" to any State requirements that go beyond SORNA. And, the SMART office was developing a "Model Form" for States to use. Without having seen the model form I can only believe it conformed to SORNA wording which is clear.
Now if a State was asked why their forms do not speak of "SORNA Requirements" may respond with, "we interpret that to mean 'State Registry Laws'." But that does not comply with Federal Guidelines interpretation of "SORNA Requirements" which clearly explain BOTH (Sate and Federal) need to be explained to registrants. (See FG p-35 above)
States ignore two things: 1) That Sec. 2250 is part of SORNA Requirements; 2) That Federal Guidelines mandate States explain both (which includes Sec. 2250) to registrants. The result of the State failure to follow Federal Guidelines is, that some registrants are seriously placed in danger of arrest through no fault of their own. And when arrested are immediately in violation of SORNA wondering how this happened.
OK, why is this an issue AFFECTING every single registrant in the nation?
Two reasons: 1) Even though a specific issue doesn't seem to apply to one's current circumstance AT THE MOMENT, one never knows when they be in one of the Special Circumstances mentioned earlier, and when they occur it is too late then to do anything but plead guilty and spend time in prison; 2) Lawmakers who do speak (occasionally) up for registrant issues, can be counted on one hand, so ALL Registrants must fight whenever they are given an opportunity, lawmakers will not speak-up for registrants.
Accordingly, an appropriate comment might go like this:
OAG Docket No. 134
To Whom It May Concern:
State acknowledgment forms FAIL to notify registrants of FEDERAL SORNA requirements, FEDERAL Guidelines (which interpret SORNA and subtle points) and Sec. 2250 requirements, but ONLY mention what is required by State registry law.
The FAILURE of the State acknowledgement forms to notify -ALL REGISTRANTS- of the above, places certain registrants in peril of arrest, prosecution and prison for doing many things customary to daily life. i.e., registrants living near state borders customarily attend family church services, medical appoints, do shopping, etc., and these may be in a bordering state. The FAILURE to notify registrants, of Sec. 2250 at least, places registrants in peril if stopped by police. Registering in the bordering state is even frustrated or impossible because there is no residence to report in that state.
Further, a death of a family member, or friend, may require ANY registrant to cross state lines (temporarily or for several days) or may require travel to another country. The FAILURE of State acknowledgment forms to notify registrants of how to handle such emergencies, and vacations that cross state lines for more than 3 days, all place registrants in peril.
State acknowledgement forms are inadequate in many respects, mainly forms FAIL to notify registrants of SORNA requirements including Federal Guidelines interpreting SORNA, and Sec. 2250.
Thank you.
POINT-2: Neither the Final Guidelines (from 2008) nor the New Supplemental Guidelines (2010) mandate States to notify and explain "changes in laws (both State and Federal)" and obtain new forms when changes occur.
Registrants must stand and make lawmakers rid laws of HIDDEN INTERPRETATIONS (requirements) which ultimately entrap registrants. Clear concise language -with finality- must be the goal. Finally, notification is a requirement of due process, the forms used by States, absent Federal SORNA requirements, and clear language, violate due process.
Accordingly, an appropriate comment might go like this:
OAG Docket No. 134
To Whom It May Concern:
Neither the 2010 Supplemental Guidelines nor the 2008 Final Guidelines require states to notify registrants of changes in Federal or State laws, when they do change.
The State acknowledgement forms need to function as forms that notify, not just as forms used to prosecute registrants when they fail to follow requirements of Federal or State law.
Thank you.
WHERE TO POST COMMENTS:
OK, are your comments ready? Or, above are TWO suggested comments (background color is yellow), you can use those if you wish, but each must be a separate comment on Regulations.gov
So click here:
http://www.regulations.gov/search/Regs/home.html#docketDetail?R=OJP-2010-0001
Look on the lower left where it says "Comment Due 7-13-10 11:59 PM" just click on that and enter what you have prepared, or the above suggested comments, remember to copy each as a separate comment.END OF POST
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