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PART-IV: Behind Closed Doors: The Adam Walsh Act Way, now the States are following?

Revised 6-20-2012 Thanks to a reader's sharp eye re: The Alabama Factor. Revised 8-28-2012 New Indiana court decision supporting my discussion. See Red highlights near end.

5-29-2012 National:

BEHIND CLOSED DOORS: The Adam Walsh Act way. (see earlier AWA Morphism) Yes folks, that is the way it has been since the inception of this harmful devious law, even a good portion of federal lawmakers were cut out of the constitutional process which enacted AWA.

This is PART-IV of our Four Part Series focusing all things relevant to the AWA/SORNA Tier Assignment System (TAS). If you haven't read PART-I it is HERE, or PART-II HERE or PART-III HERE.

Here we will dig into the "State Process" for assigning tiers, raising legal questions, and this should -in principle- support findings of the WIDENING THE NET: The Effects of Transitioning to the Adam Walsh Act’s Federally Mandated Sex Offender Classification System first mentioned in PART-I, and likely the 637 Risk Assessment study as well. What follows may open the door to -WHY higher tiers result- from the AWA way of tier assignment. Once the "whys" are known that may open doors to attack the system! With that said, onward.

PART-IV "How are states implementing the Lawmaker contrived SORNA Tier System?

Folks, hang on this is not over! Remember, Sen. Hatch said, we (Lawmakers) stuck it to them!

What Does SORNA's Tier Assignment System Actually Say:
42 USC 16911 Section 111: (1) SEX OFFENDER.—The term ‘‘sex offender’’ means an individual who was convicted of a sex offense.

(2) TIER I SEX OFFENDER.—The term ‘‘tier I sex offender’’ means a sex offender other than a tier II or tier III sex offender.

(3) TIER II SEX OFFENDER.—The term ‘‘tier II sex offender’’ means a sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and— .... [Summarizing, the state is required to compare its sex crime statute elements, to various federal sex offense statutes, searching for the closest match]

(4) TIER III SEX OFFENDER.—The term ‘‘tier III sex offender’’ means a sex offender whose offense is punishable by imprisonment for more than 1 year and— ... [Summarizing, the state is required to compare its sex crime statute elements, to various federal sex offense statutes, searching for the closest match]

This state matching process (Tier Assignment System) is the subject of our discussions below. It is impossible to go through an example of exactly how a tier level is determined, suffice to say it is/can be complex, esp. when a state statute has many elements. See 42 USC 16911 link if you want to try it. Instead we will review the process conceptually and point to places (flaws) which question the legality of the process. Such may render the process unconstitutional or at least violate established law.

We started by reviewing the AWA Compliant states to see how many sex crime statutes each of them had. States with a few sex crimes statutes (ex: Alabama) will quickly finish the process. However, states with many sex crime statutes (ex: Michigan) will take much longer. In addition, the chance for errors, conflicts and the like is increased with the number of statutes to review. Immediately Alabama presents us with something highly unusual.
The Alabama Factor: The SMART Office has declared Alabama compliant. Compliance includes the state's choice of how tiers are assigned. In Alabama, everyone registers for a LifeTime (Sec. 15-20A-3(b))! No need to assign tiers, everyone is Tier-3, problem solved. Or is it?

The tier system is supposed to be based on the crime committed (the AWA way), so by the SMART Office permitting this system aren't they saying to the state, the higher you can push tiers, the better we like it. You (the State) can use this system of assignment and we will declare you compliant. Fairness, if one can suggest that the AWA way is fair at all, is bypassed by allowing The Alabama factor. And many, likely most, of Alabama registrants have been cheated out of whatever fairness is available in the AWA way. (UPDATE 6-20) In addition, in SORNA there are ways to reduce tiers for some with clean records ( 42 USC 16915(b) ), but not for Alabama registrants who qualify.

Allowing this method defeats the overall AWA premise of making all states consistent, so that, registrants are viewed -by virtue of their tier setting- to have committed the same level of crime no matter where they may move to in the nation! The Smart office apparently believes in further punishment! Cheating registrants out of whatever fairness exists in the AWA way! And falsely labels many Alabama registrants in the public eye! Are there other states like this?
UPDATE 6-20-2012: Because AWA/SORNA is a federal law it has to be equally applied to all states that enact it. If the SMART Office (USAG) permits the Alabama Factor to be considered "compliant" then it immediately raises equal application of the law issues with other states -considered compliant- who use a different tier assignment system (TAS).

Further, since Ohio's Supreme court declared the SORNA/TAS unconstitutional, and the SMART Office has not now declared Ohio -out of compliance- we have another equal application of the law issue.

Finally, are there other sections of SORNA that command all states -do the same thing- or suffer further lawsuit under the equal application of federal law claims? Maybe lawyers need to take a second, third and fourth look at this!

The following represents what logically would be expected to happen, and shows where something might be questionable, improper or flatly illegal. Given the absence of documentation of exactly how -each state- performed / accomplished this in compliant states, this is the best we can do; remember, this is a hypothetical but a logical perspective of the process.

State 'Team' for determining "Tiers v Statutes": Because of the complexity of the process, states have had to setup a Team (Presumably a proper mix of Republicans and Democrats. I doubt Lawmakers were included in the team), to actually perform the comparisons and arrive at tiers for individual state statutes. It is unknown if there were standards for who is allowed to be on such a team (task force) (i.e., a job description of sorts), which could raise issues of personnel bias and prejudice as to specific crime type/s (esp. if a member was a former victim of such crime). Nothing in Administrative Law (Michigan was checked) was found addressing any such -Ad Hoc- Task Force. To our knowledge, the final tier assignments and process has not been audited, nor is there a federal or state requirement for such.
The Team's State Contrived Process performed BEHIND CLOSED DOORS, the AWA way! Further, this undocumented contrived process is not pursuant to state administrative law, nor can the result be contested, by an individual or anyone else. However, presumably it was/is somehow under control of the state legislature (Legislative Branch). The only possible public input -if the tiers are enacted into law- would come from whatever public hearings are normally held by a state when enacting a law, assuming a law is enacted showing the tier results. You can bet notice of such hearings was minimal clearly not allowing the public time to consider what was done nor provide any reasoned input, especially since the process is not documented for public knowledge.
Processing Glitches/Conflicts/Questions (PGCQ): No system is without a conflict, glitch or question after starting a project, so when they happened, who was assigned to resolve them? The Team? A Lawmaker? A Republican or Democrat mind? Important, yes, those views are often opposite each other. Were these even documented, for later audit review?

Key flaw A in Process- 'Closest Match': When comparing two dissimilar systems trying to find equality, it is more likely an unequal result will be the final answer. Accordingly, PGCQ must be put into action to find the answer. Will the answer go HIGH (Higher tier) or LOW (Lower Tier) a inherent problem when matching dissimilar systems. And further magnified by the fact, that here matching is not like matching numbers, instead legal words and phrases which often have special meanings, and often differ between systems, here federal and state/s.

Key flaw B in Process- 'Evolution of Laws': All state sex offense statutes are compared to federal statutes (The AWA/SORNA way), with tier levels assigned to each state statute. The comparison is by statute numbers not by the individual circumstances of a person's crime, that is never reviewed. In PART-I we discussed "the Evolution of Laws" and how laws evolve, mostly becoming more onerous over time. Now, by comparing the past statute of conviction, to today's federal statutes, the evolution of the state statute of conviction, if any, is erased, and the person's resulting tier can be higher than it should be. This is also true of today's federal statute. i.e., it too may have been less onerous at the time the state crime being compared to was committed, but this process ignores such evolution/s, such a result can result with a higher tier than it should be.

Key flaw C in Process- 'Courts Interpret Statutes': Interpreting statutes has always been the job of courts; the Judiciary. Here we see, possibly the first time in history, a reinterpretation of certain statutes by someone or group other than a court of law. Now, if a PAST court case has interpreted a sex offense statute that is now part of this process, has the Task Force blended in or ignored such PAST court cases, and sometimes multiple cases? Again, we do not know, nothing is documented that can be verified.

Ohio's Supreme court recently held, that, it was a violation of the Separations of Powers for the Executive Branch to change what a court has done (earlier assigned a level to a registrant). Well this -Ad Hoc- process is being performed by the Legislative Branch and possibly, if past related court cases are being ignored (Judicial Branch), also a violation of the Separations of Powers?
Now, if such PAST court cases were considered, then it seems that there MUST be documentation of such, so that later court cases know who did what, and when such cases were reinterpreted? Shepards will not show what has been done administratively when such is not done pursuant to administrative law or a court case.

Further, when courts construe statutes their decisions, they may change or establish rights, statutory and/or constitutional, does this Task Force have jurisdiction to affect those rights? We think not! A audit might be in order to find rights so affected.

Key flaw D in Process- 'Strict Statutory Construction': 42 USC 16911 (3) and (4) above are quite clear on this point "whose offense is punishable by imprisonment for MORE THAN 1 year and__." Well that should help some folks with sentences under one year, but we have found some with -under 1 year sentences- in Tiers II-III. How is this possible? The best I can come up with is this, see that "and" following "1 year" whoever performed the comparison, are you ready, will have created their own form of statutory construction.

They started review of the "and," even though they had a statute with less than 1 years punishment, when they should have ignored the "and" portion. Something in the "and" review made them say, anyone with this type of conviction must be registered no matter what, and thats likely how certain folks ended up with higher tiers, possibly for the rest of their life. How many of these folks are on when they should not be, Lord only knows. Remember, the process is not documented for public knowledge. (Not even a simple flow chart)
Assuming their reasoning totally honorable absent personal influences, maybe they hit some sort of conflict or glitch, was such documented and handled according to PGCQ? If audited they may find some, but audits are not likely to check every single statute to see if it was done correctly. This alone shows the importance of documenting conflicts and glitches for later review. Maybe if there are Advocates reading this and know of such folks, you can at least point them to the procedure below and let them make the waves that may uncover how this was done, and possibly find others with similar circumstances, and help others in the process.

Key flaw E in Process- 'Rehabilitation': Rehabilitation is negated by TAS. When a judge sentences a person to jail, prison, probation or whatever else the judge feels is appropriate, s/he does so expecting that the person will be rehabilitated by that sentence. Assuming no further conduct on the part of the registrant, this TAS process retroactively eliminates rehabilitation and forces registrants to live in a limbo for the remainder of their lives.

Considering that this process concerns sex offenders judges frequently require that therapy be part of that rehabilitative process, and the state through the Parole Board or other state agency, requires that, a report showing successful completion of therapy; that report is likely to indicate a risk of reoffense. That is a state decision at the time and this tier assignment process today may be changing that state decision in violation of the civil Doctrine of Laches (civil equivalent to ex post facto clause). Further, the US Supreme court in McKune v Lile 536 US 24 (2002) had this to say about the importance of therapy:
"When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. See Sex Offenses 27; U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). States thus have a vital interest in rehabilitating convicted sex offenders. Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U.S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender xiii (1988) (“[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%,” whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%. “Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals”). (Note: Recidivism rates in that case were based on 1983 stats, since newer stats show even lower recidivism rates around 3.5%)"
In PART-III we mentioned a study Congress seeks to have done, "Sec.634 Comprehensive Examination of Sex Offender Issues." The effectiveness of "treatment programs in reducing recidivism" is supposed to be done, and the results posted annually on the Internet for public view. Here is what makes no sense, if the U.S. Supreme court in McCune v Lile has already recognized that, treatment can reduce recidivism, why do another study to prove what already has been proven? Then comes the question, if the study results are supposed to be made public -on the Internet- for everyone to see, it follows, that rehabilitation is something which is supposed to be made public.

So why does the Adam Walsh Act, SORNA TAS, in violation of US Supreme court beliefs, turn back the clock and wipe out the efforts of the states in rehabilitating past offenders, and the efforts of the offender as well? The AWA way is to remember the crime and forget the rehabilitation! Is it due process or ex post facto, or other constitutional noise I hear? Whatever it is I hear, its certainly further punishment and placing registrants in a false light before the public eye! Do registrants have an actionable false light claim warranting damages?

State process for assigning tiers to individual registrants: Whatever state agency has responsibility for the registry was likely responsible for assigning tiers to individual registrants. It is very likely that a computer program was used to actually set tier levels in individual registrant records. So without notice to the registrant, on one day registrants were no risk, and the next day the have a risk designation, and it is placed on the public registry. The public is shocked by this and it causes further hysteria. The media now refers to registrants using words like predators SVPs and the ilk, further publicly stigmatizing registrants and their family, if any.

Appeal of Tier Level: If registrants contact registry folks they will likely be told there is no appeal, your tier is what it is, for the rest of your life! SORNA does allow a select few to petition for lowering their tier level, but that is not an appeal of an incorrect tier. If a registrant truly feels their tier level is incorrect (erroneous) and has some way to prove such here is what they can do. AWA has a built in process for correction of errors:
(a) IN GENERAL.—Except as provided in this section, each jurisdiction shall make available on the Internet, ...
(e) CORRECTION OF ERRORS.—The site shall include instructions on how to seek correction of information that an individual contends is erroneous.
Correction of Erroneous Info (i.e.,Appeal) Pointers:
1) DO NOT proceed verbally (i.e., by phone), if you do you will have nothing in writing for a later court action if necessary;

2) If you do have reasonable proof that an error has occurred, that you seek the advise of a lawyer, explaining what you want to do. Show them what is written into SORNA (above) its possible they are not aware of SORNA's 'error correction' system (not every compliant state has followed this section [yes another problem];

3) Be forewarned, once you start this process there are time limits, lawyers know them and they must be met.
Once you get a decision, you will be stuck with it for the rest of your life. This procedure gives you ONE SHOT you WILL NOT get another, so be prepared!

UPDATE 8-28-2012:
Indiana sex offender list violates due process: court

A federal appeals court said Indiana's sex and violent offender registry unconstitutionally violated the due process rights of thousands of registrants because it did not give them a chance to fix mistakes.

The 7th U.S. Circuit Court of Appeals (Schepes -v- Indiana DOC) in Chicago rejected arguments by the Indiana Department of Correction that it was not directly responsible for errors in the registry, which contains about 24,000 names, and that registrants had other procedures to challenge mistakes.

Concluding that erroneous labeling as a "sexually violent predator" implicated a liberty interest protected by the Due Process Clause, the 7th Circuit noted that Indiana had recently begun letting current prisoners challenge pending registry listings, but gave other registrants no such opportunity.

"The policy provides no process whatsoever to an entire class of registrants -- those who are not incarcerated," and is therefore "constitutionally insufficient," Circuit Judge Diane Wood wrote for a unanimous three-judge panel.

Tuesday's decision reversed a December 2011 ruling by U.S. District Judge Tanya Walton Pratt in Indianapolis. The 7th Circuit sent the case back to that court, and encouraged the parties to agree on procedures to fix registry errors.

The office of Indiana Attorney General Greg Zoeller, which represented the Department of Correction, is reviewing the decision, spokesman Bryan Corbin said.

State legislators this month began hearings on possible changes to the registry, after the Indiana Supreme Court had in 2009 found some restrictions unconstitutional, he added. ..Source.. by Jonathan Stempel

So, PART-IV comes to the end, for now! Raising more issues unanswered, and that was the intent. It is time for legal minds to crack the tier assignment system as it is causing more harm than anything in history. Lawmakers have not taken the time to review evidence and research and hopes that they will, well it won't keep them in office so there is little chance they will. The best way is through the courts which has the power to change history, now it is up to the lawyers to convince them.

Sixteen states are considered compliant: Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Tennessee and Wyoming with Ohio spending more time and money on court actions than all the others combined. Maybe their budgets need to allot more money for courts.

However, with that said, I still urge folks to get to their legislatures, fight for whatever steps that can be had. And, in states which are not yet compliant, folks may wish to raise many of the issues found in this series, somehow get lawmakers to document their tier assignment system, and ask for it to be audited. There are far too many registrants ending up in the upper tiers than should be.

And, as always, I am open to other thoughts and opinions, if you have any send a e-mail.

For now have a great day and a better tomorrow.

PS: Some have asked, do I agree with the tier system? No way, consider, ranking dangerousness into 3 tiers, when the offense statutes probably identify many many many more, what does three tell you? Someone or many are misclassified!

PPS: A sequel is likely as more curious facts have come to light, but thats for another time.

© SOResearch May 2012, All Rights Reserved!

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