National Association for Rational Sexual Offense Laws (NARSOL), September 9, 2020
To put these proposed regulations in perspective, we would say that the new regulations would give states a much easier path to become AWA compliant. With only a few exceptions, most non-compliant states and territories are non-compliant not because they have rejected the AWA’s standards, but because they have been unable to meet those standards through legislation. The Federal Sex Offender Registration Apprehension Registration and Tracking (SMART) Office is keenly aware that much can be done administratively. This proposal gives the non-compliant states an easier way to achieve compliance by administrative actions combined with a cleverly worded legislative proposal. For example, state legislatures can simply enact legislation that says their state registration requirements will substantially comply with federal AWA standards. In addition, local registration officials can also utilize forms designed by the SMART Office to administratively implement AWA provisions. NARSOL’s fear is that many registering agencies will be happy to do just that.
It is the unseen in the proposal that we need to worry about. For example, the recent experience in West Virginia would give us a clue as to what we might anticipate. The West Virginia State Police sent a letter to all registrants demanding that they come in and sign an acknowledgment of a 21-day advance notice of international travel. Almost all did despite the fact West Virginia law did not require the advance notice be filed with the registrars in that state. Now that the registrants have signed, the feds can prove the requisite knowledge requirements of the AWA pertaining to international travel.
A second scary example would be of someone who has been released from registration obligations by a particular state. It would be very easy for the feds to produce a similar acknowledgement (which registrants would be intimidated into signing) agreeing that they are required to register for 25 years rather than the 10 as required by their state’s law. Again, that opens the door to a potential federal prosecution because the person has signed and agreed that he/she has an independent federal duty to register. The recent decision handed down by the Sixth Circuit in the Willman case (see below) only increases the likelihood of that happening.
Some mistakenly believe that their state would never do any of these things we fear. The problem with that line of thinking is that many states would be happy to have people register for the longer period of time required by the AWA. They would then have: (1) additional federal funds available from the SMART Office for compliance monitoring; (2) longer registration periods which are appealing to victim advocacy organizations and the law enforcement apparatus; and (3) they could much more easily achieve passage of additional requirements, despite being unable to pass such legislation previously.
The recent Willman case from the Sixth Circuit has the potential to reinforce what we are seeing hidden in the AWA proposal. If this decision allowing an independent federal obligation to register is allowed to stand, states will simply cite to that and refuse to terminate the obligation. In fact, states in the Sixth Circuit likely will claim that it would violate federal law if they didn’t continuing registering a person longer than state law mandates. Although the AWA proposal does include an impossibility defense (meaning a person could not be federally prosecuted if the state will not register him or her) we believe they will be more than happy to register people for longer periods of time. Since we do not believe that states will refuse longer registration, this will render the impossibility defense meaningless.
The folks at the SMART office are well aware that much can be done administratively. For a deeper dive into this issue, listen to episode 143 of Registry Matters at https://www.registrymatters.co/podcast/rm143-will-willman-undo-does-v-snyder-feat-josh-hoe/. You can also get more details on our blog here: https://narsol.org/2020/08/how-important-are-the-new-federal-registration-proposals/.