UPDATED: 6-18-20106-18-2010 Washington DC:
I've received a few e-mails requesting that I provide a "Suggested Comment" like I have in other commentaries about the New Supplemental Guidelines. So, I have done that below, and folks can use the "Suggested Comment" they do address the main issues raised in the SG.
In the NEW Supplemental Guidelines, section titled "II. Interjurisdictional Tracking and Information Sharing" there are three sub-sections A-B-C. I will be commenting on each separately as I see troubles with each and do not want to confuse folks by placing everything in one post.
PROBLEM: In Section II-A of the "Proposed Supplemental Guidelines (SG)" the SMART Office has violated the U.S. Constitution. They cite a specific AWA section (42 USC 16928) -as authority to do what the SG explains-, but the cited authority does not permit them to do what the SG explains. Effectively, the SMART Office has exceeded its constitutional authority in interpreting the Adam Walsh Act. Explanation 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.
SG Section II Interjurisdictional Tracking and Information Sharing--
A. International Travel states the following:
Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67. To that end, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions if they intend to commence residence, employment, or school attendance outside of the United States, and that jurisdictions that are so informed must notify the U.S. Marshals Service and update the sex offender’s registration information in the national databases. See 73 FR at 38067. (Regarding the general requirement to provide registration information for inclusion in the National Sex Offender Registry and other appropriate databases at the national level, see 42 U.S.C. 16921(b)(1); 73 FR at 38060.) In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066. ... (two more paragraphs not relevant to my Points)
POINT-1: Notice in the proposed Guideline above it says "who enter or leave the United States. See U.S.C. 16928." The problem is, 16928 DOES NOT SAY THAT, here is verbatim what it does say:
42 USC 16928 -- SEC. 128. REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES.
The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.
Whether or not it is logical to do what the SG says (highlighted above), is not the issue, the issue is, the cited authority does not permit controlling RSOs who decide to leave the United States, see 42 USC 16928.
Accordingly, an appropriate comment might go like this:
OAG Docket No. 134
To Whom It May Concern:
The Supplemental Guide states: "SG Section II Interjurisdictional Tracking and Information Sharing-- A. International Travel: Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67."
42 USC 16928 states: "REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES. The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States ..."
42 USC 16928 does not permit preventing or controlling registered sex offenders who chose to LEAVE the United States.
Thank you.
POINT-2: Notice the other highlighted portion in the SG above: "In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066."
Micro-Managing RSOs lives (and their family as well):
i)Notice how, under a guideline that supposedly addresses "International Travel" the SMART Office brings in "DOMESTIC" movement as to ALL RSOs. i.e., micro-managing lives, vacations, visiting family, professional conventions, medical reasons, job interviews, taking a son or daughter to a sporting event somewhere away from residence, and emergency circumstances, etc. If 42 U.S.C. 16928 is authority -as claimed by the SG- then it will not support "Domestic" movement (travel).
ii) While it may be permissible to control the lives of RSOs who are still under some form of supervision, as to those not under supervision, this "notification of residence jurisdiction" when folks are going to be say, on vacation for more than 7-days, is over-control in this writer's opinion. This is likened to placement of folks on parole or probation (or some new form of community supervision).
iii) A close review of 42 U.S.C. 16928 does not permit any construction which requires RSOs to act in any manner, nor anything that permits control of RSOs and their family. 16928 clearly says "The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions." Authorities are to develop a system to inform relevant jurisdictions, which they have translated into, RSOs should inform relevant jurisdictions. RSOs are not employees of those agencies, and it is unlikely they will get paid for doing the job of the agency.
Accordingly, an appropriate comment might go like this:
OAG Docket No. 134
To Whom It May Concern:
Given that, 42 USC 16928 imposes a duty on the USAG (and other federal agencies) to inform relevant jurisdictions of persons -entering the United States- who are required to register, 42 USC 16928 -in no way- permits restrictions on DOMESTIC travel (movement within the United States) of ALL registrants in every state registry.
To construe 42 USC 16928 as the Supplemental Guideline does, is overreaching and extending it to do things, it simply, is not authorized to do.
Finally, it cannot be forgotten that many RSOs are part of a family unit, and short of eradicating these family units, these overreaching controls impermissibly affect the entire family unit.
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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