Sex Offender Madness

I'm a bit slow in responding to apublicdefender's call for help regarding a story about sex offender madness (I blame my cold that will never go away). From the original post:

Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.

A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering....

If the State registers Doe, it is an illegal act in violation of the laws of the State of Ohio. If the State doesn’t register Doe, he’s in violation of his Federal probation. So who wins? The State or the Feds? Either way, there’s only one loser: the sex offender.

Update: An alert reader asks if Ohio is the only state that is facing this problem. Do any of you know whether other states have faced this issue? Any lawsuits pending? Any AWA expert? CRY, you out there?

I don't know of any other fact patterns that are exactly like what is occurring in Ohio. However, there have been federal prosecutions of offenders who were not required to register in the state they were residing (U.S. v. Husted is one example). That usually occurs because the state in which the offender is living has not applied the state registry to crimes before the passage of the enabling statute.

Although I ultimately think the registration provisions of the AWA are unlawful exercises of federal jurisdiction under the Commerce Clause, I'm not sure the specifics of the Ohio case trouble me more than any other use of those provisions. It's possible that I've just become jaded to these fact patterns. Nonetheless, I think this is like the exception to double jeopardy when a person can be prosecuted by the federal government and state government for the same crime. When you are dealing with two different sovereigns and two different sets of registration requirements, I don't see any conflict of the laws. I think the result is effecitvely a trumping of state rights, but it is no worse than the usurption of medicinal marijuana laws allowed in Raich or the aforementioned double jeopardy exception. Maybe I'm missing something, but I think this is an inevitable result of the AWA so I'm not surprised at all.

Now, if Ohio refuses to comply with the AWA (and sacrifices Byrne grants), then maybe the story changes. However, courts allowed prosecutions under the AWA to occur even though no state had complied (and not a single federal court has held otherwise). Strangely, the federal probation offices might be doing these offenders a favor. If they aren't listed on the Ohio registry, they can be prosecuted for a 2250(a) violation under SORNA. 

Comments

[Daniel]

"When you are dealing with two different sovereigns".

Let me correct that slightly. "When you are dealing with the myth of two different sovereigns".

The so-called exception to double jeopardy is about as mythological as it comes.

[MarkM]

"Strangely, the federal probation offices might be doing these offenders a favor. If they aren't listed on the Ohio registry, they can be prosecuted for a 2250(a) violation under SORNA."

I'm i missing something here?

[littleone]

Hope this helps:

http://groups.google.com/group/alt.true-crime/browse_thread/thread/27b4a371a2a1f42a

We review de novo a circuit court's holding with respect to the
constitutionality of a statute. Russell v. Department of Natural
Resources, 183 Ill. 2d 434, 441, 233 Ill. Dec. 782, 701 N.E.2d 1056
(1998). Statutes carry a strong presumption of constitutionality, and
the party challenging the constitutionality of a statute bears the
burden of rebutting this presumption. Russell, 183 Ill. 2d at 441.
Here, that party is defendant, who for the reasons set forth below has
met this burden.

A cornerstone of our jurisprudence is that no person shall be deprived
of life, liberty, or property without due process of law. U.S. Const.,
amends. V, XIV; Ill. Const. 1970, art. I, § 2. Due process of law
requires that the proscriptions of a criminal statute be clearly
defined. City of Chicago v. Morales, 177 Ill. 2d 440, 448, 227 Ill.
Dec. 130, 687 N.E.2d 53 (1997), aff'd, 527 U.S. 41, 144 L. Ed. 2d 67,
119 S. Ct. 1849 (1999). To satisfy the vagueness doctrine, a criminal
statute must meet two requirements. First, the statute must provide a
person [*9] of ordinary intelligence a reasonable opportunity to
distinguish between lawful and unlawful conduct so that he or she may
act accordingly. Russell, 183 Ill. 2d at 442; Morales, 177 Ill. 2d at
449. " 'No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are entitled to
be informed as to what the State commands or forbids.' " Morales, 177
Ill. 2d at 450, quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 83
L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939). Thus, a statute is
unconstitutionally vague "if its terms are so indefinite that 'persons
of common intelligence must necessarily guess at its meaning and
differ as to its application.' " Fagiano v. Police Board, 98 Ill. 2d
277, 282, 74 Ill. Dec. 525, 456 N.E.2d 27 (1983), quoting Polyvend,
Inc. v. Puckorius, 77 Ill. 2d 287, 299-300, 32 Ill. Dec. 872, 395 N.E.
2d 1376 (1979).

[Lady Justice]

The rule of thumb that has been conveyed to the sheriffs is that if the sex offender does not have a duty to register in Ohio, then he does not get registered. You can confirm that position with the Ohio Attorney General's Office, who maintains the central registry. So, the offender that has a federal duty to register, but no duty to register based upon Ohio's laws, is going to be in violation of his probation because he can't be registered. Short of AWA being re-written, I don't know the resolution.