Revised and reposted 8/31/20
By Larry, Brenda, and Sandy . . . The new Adam Walsh Act amended regulations are out for comment for 60 days, and after the comment period will likely be adopted, finalized, and published in the Federal Register. NARSOL had posted an article stating there is reason for concern but not reason for panic. We removed that post because we are now more concerned due to a recent decision just handed down by the United States Court of Appeals for the Sixth Circuit, Willman v. Attorney General of United States, 19-2405 (FED6). This decision will potentially have broad ramifications for those in Michigan and all the states in the Sixth Circuit.
Background on The Adam Walsh Act
Even though the Adam Walsh Act (AWA) was enacted more than 14 years ago, there is massive confusion as to whether or not Congress created a federal registry. We hear this regularly, and even the courts do not seem to understand that there is no federal registry. There is a search engine operated by the federal government that looks into the state registries, but that in and of itself is not a registry. Beyond that, it is very debatable if the federal government can create a federal registry for those convicted of violating only state laws. If you read through the 93 pages in the proposal, the Attorney General (AG) acknowledges that, and they’ve acknowledged that ever since the passage of the AWA. This is precisely the reason federal strategy has been to strongly encourage the states to enhance their registries. The feds have provided enhanced federal funding for those states that substantially comply, and they have used the threat of potentially losing 10% of Byrne federal grants to encourage the states to come on board.
NARSOL recognizes that there could be a federal registry for people who have federal convictions. That registry would involve anything that’s a federal crime. Major crimes occurring in Native American territories end up in federal court, as do military convictions, and for those there could conceivably be a federal registry. Such a registry would be separate from the state registries because there is no federal jurisdictional hook that could force a person with a state conviction to report to a federal registrar. Crimes occur when laws of specific states are broken, and each specific state must determine if any of those crimes trigger a requirement to register. Each state creates its own registry. A federal registry operating side by side with a state registry would be duplication of effort, and there would be no reason for one.
Even though there are a significant number of people prosecuted for violation of federal SORNA, that doesn’t translate to there being an actual federal sexual offense registry. In the 14 years since the AWA became law, the feds have regularly asserted their jurisdiction to prosecute whenever there is a somewhat clear jurisdictional hook. This would include those who relocate from one jurisdiction to another or those who choose to travel internationally because there is a federal requirement of at least 21 days’ notice in advance of any international travel. They have claimed federal jurisdiction under the commerce clause of the United States Constitution. The theory is when a registered person crosses jurisdictional boundaries, he/she has engaged in “interstate commerce.” Even under those circumstances, the federal law only requires that you register with the state’s officials if you are relocating, and there is really no method in place to report the international travel if the state has not included that in their laws or regulations. There is no federal registrar to provide information to.
A Danger in the Proposed Regulations
Despite popular myth that the majority of states have rejected the AWA, in reality a majority of the states have been unable to “substantially implement” the AWA despite their desire to do so. There is some commonality among the non-compliant states even though the law enforcement apparatus has touted the benefits of AWA compliance. First, juvenile justice advocates have successfully convinced legislatures that registering juvenile offenders is bad public policy. Second, the AWA has a significant number of pieces that a state must implement to be deemed “substantially compliant.” Several have been denied due to missing some key components that are essential to achieving that coveted designation. Those states are eagerly wishing to be AWA compliant and will seize this new gift from AG Barr.
The AG’s proposal opens the door for the states to become federally compliant without adopting all of the provisions through their legislative processes. A state can simply do it with a blanket amendment to their existing law that a person must comply with all federal registration requirements. For example, rather than a state proscribing how long a person has to register in state law, they could totally eliminate their state reference to how long a person registers and say instead that the person must register consistent with the terms of registration established by the federal AWA. They could state that your reporting frequency will be consistent with the standards required by federal law. In some rare instances, this could benefit the offender because some states require more frequent reporting than actually recommended by the AWA.
The real danger is that legislatures could simply bow out of the legislating business and say that they’re adopting the federal standards. If a state moves that type of proposal through its legislative process, then all of a sudden, de facto, you will have the Adam Walsh Act adopted without your elected officials actually determining and assigning tiering levels. Due to the complexity of figuring out the suggested AWA tiering, most states have gotten it wrong. They often over-tier, and the feds are not going to demand that those over-compliant states reduce their obligations.
This proposal does not create a new jurisdiction for the feds unless the state wants it to. If the state has strong advocates that beat back such changes, it won’t change one iota of what is in that state’s laws. But NARSOL’s fear is that states will gladly allow the feds to help them achieve AWA compliance. An example would be the 21-day advance notice of international travel which is required by federal law. If your state has not included that in its requirements, there is no federal registrar to file the travel plan with, which means you cannot comply. This limits the feds in their desire to prosecute those who fail to comply. Even before the AG’s proposal, the state of West Virginia figured a way to implement this. They sent letters to all registrants in the state and demanded that they come in and sign an acknowledgement of the federal requirement. Most voluntarily signed despite the fact that the law of West Virginia does not require such notice. Now that they have signed, failure to file the required notice of travel can be successfully prosecuted in West Virginia.
This new proposal acknowledges that SORNA provides minimum national standards for sex offender registration, establishing a floor rather than a ceiling for registration programs in states and other jurisdictions. States are free to impose registration requirements binding under their own laws, independent of federal SORNA, including not having a registry at all. Jurisdictions are free to adopt more stringent or extensive registration requirements than those set forth by SORNA. States impose residency restrictions, proximity restrictions, exclusion from school activities, Halloween restrictions – none of these are required by AWA. At one point, the proposed regulations state that this change will make it easier for registrants to determine what they are required to do and thus facilitate compliance. They recognize that you still can’t force the state to do what it’s not going to do, but this does give the states an easy way to do something that victims’ advocates and law enforcement apparatuses will encourage them to do.
Can the Feds Arrest and Prosecute You?
As we stated earlier, the answer is yes, and they have prosecuted many over the previous 14 years. Although NARSOL has long held the position that the feds do not have jurisdiction to prosecute those who never cross jurisdictional boundaries, we must now rethink that position in view of the decision just released in the case of Willman v. Attorney General of United States. This decision held that there is an independent federal obligation to register. Even though the decision is appalling and legally incorrect in our opinion, it does have the potential to undo the magnificent Does v. Snyder decision rendered in the same court back in 2016. NARSOL will be reporting more on that case and recommending a course of action once we have completed our analysis. The Registry Matters podcast spent a significant amount of time discussing the case, and you can listen or read the episode 142 transcript, being posted shortly at https://www.registrymatters.co/.
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.