Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part I

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A recent case from the court of appeals sheds some light on a frequently asked question about petitions for removal from the sex offender registry. The case, In re Hamilton, considered a trial court’s refusal to grant a petition because granting it would not comply with the federal Jacob Wetterling Act, as amended, and other related federal standards. It’s an issue I wrote about in this prior post, but given this new case (and the passage of three years) it’s time for an update.

In Hamilton, the petitioner pled guilty to taking indecent liberties with a child in August 2001. He registered as a sex offender that same month. Almost exactly ten years later, in August 2011, the trial court heard his petition to terminate his registration. The trial judge denied the petition based solely on a finding that allowing Mr. Hamilton off the registry would not comply with applicable federal law.

Mr. Hamilton made two arguments on appeal. The first, styled as an issue of “mootness,” was that his registration should have terminated automatically after ten years based on the law that existed when he was first placed on the registry. The registry used to work that way, the court of appeals noted, but the petition procedure put in place by the General Assembly in 2006 was made applicable to “persons for whom the period of registration would terminate on or after December 1, 2006.” S.L. 2006-247, sec. 10.(b). The change therefore included Mr. Hamilton, whose registration would have run until at least 2011. (John Rubin noted this issue on page 2 of his 2006 legislative summary, available here. The upshot is that only a narrow cohort of registrants who initially registered between January 1, 1996 and November 30, 1996, would see their registration terminate automatically after 10 years.) The court of appeals rejected the argument.

The second argument—which is really the one that I want to discuss—was that the trial court erred when it found that removing Mr. Hamilton from the registry would not comply with federal law. The connection to federal law stems from G.S. 14-208.12A(a1)(2), which says that a court may grant a petition for removal only if “[t]he requested relief complies with the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That requirement appears as finding #7 on Side Two of Form AOC-CR-262, Petition and Order for Termination of Sex Offender Registration; I’ll refer to it here as the “Wetterling finding.” Hamilton argued that removing him from the registry would not run contrary to federal standards for minimum registration length.

To evaluate Hamilton’s argument, the court of appeals had to look to the federal standards themselves. Those standards are set out in the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248—the successor to the Jacob Wetterling Act. As I discussed in the prior post linked in the opening paragraph above, one portion of that law is the Sex Offender Registration and Notification Act, or SORNA. SORNA sets out a comprehensive registration program that jurisdictions (states, the District of Columbia, U.S. territories, and Indian tribes) must “substantially implement” to avoid losing 10 percent of certain federal grant funds each year. 42 U.S.C. 16925(a).

As of today, 44 jurisdictions (15 states, two territories, and 27 tribes) have substantially implemented SORNA. North Carolina is not one of them, an issue I discussed in this prior post. Nevertheless, the federal standards exist and are, within the language of G.S. 14-208.12A(a1)(2), “required to be met as a condition for the receipt of federal funds by the State.” The original SORNA compliance deadline was July 27, 2006. North Carolina, like just about every other state, received a series of extensions that pushed the deadline to July 27, 2011. Before that deadline passed, there was a decent argument that a judge could sign off on the Wetterling finding on an order granting a petition to come of the registry without really digging in to whether the requested relief would comply with federal standards—the standards did not apply to the state directly, and they weren’t yet required to be met to receive our full federal grant allotment. Now that that date has passed, it seems that a court can probably only let someone off the registry when doing so would comply with federal standards.

That’s what the court of appeals did in Hamilton, walking through the Adam Walsh Act and noting that it sets out different minimum registration durations for different offenses according to a tiered system. Tier I sex offenders must register for 15 years, tier II offenders must register for 25 years, and tier III offenders must register for life. 42 U.S.C. 16915(a). The law also provides that tier I offenders may have their minimum registration period reduced from 15 years to 10 if they have a “clean record” as defined in 42 U.S.C. 16915(b)(1). To have a clean record, the person must:

  • Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;
  • Not be convicted of any sex offense;
  • Successfully complete any period of supervised release, probation, and parole; and
  • Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

In Hamilton, the parties apparently all agreed that Mr. Hamilton’s crime of indecent liberties with a minor would be a tier I offense. Thus, it would comply with federal requirements to allow him to come off the registry after 15 years. Further, the appellate court’s review of the record indicated that Mr. Hamilton had not been convicted of any new felonies; had not been convicted of any new sex crimes; had successfully completed his probation; and had successfully completed sexual abuse treatment as a condition of his probation. He therefore satisfied the “clean record” definition and it would thus comply with federal requirements to come off the registry after 10 years. Based on that analysis the court of appeals vacated the trial court’s finding that removing Hamilton from the registry would not comply with federal standards. The court remanded the case to allow the trial court to decide in its discretion whether to grant Hamilton’s petition.

Hamilton strikes me as an important case, helpful in developing an analytical framework that trial courts can use when deciding whether or not to make the Wetterling finding. As a threshold matter, Hamilton illustrates how North Carolina’s decision not to enact a SORNA-compliant regime does not—as I have heard some people say—mean that no one can get off the registry for now. The Wetterling finding is not asking the court to decide whether North Carolina is, as a state, in compliance with federal law. (We are not.) Nor does the finding require the court to predict precisely what a SORNA-compliant regime enacted by the General Assembly might look like. (Remember, SORNA sets a floor that jurisdictions are free to exceed.) Rather, the question before the court is: Is there a hypothetical, SORNA-compliant regime in which this person could come off the registry now? That determination is inherently speculative; it is the United States Department of Justice that will ultimately decide whether whatever legislative action North Carolina takes in response to SORNA “substantially complies” with federal requirements. But until our legislature acts, that appears to be what courts must do.

And it won’t always be as easy as it turned out to be in Hamilton, in which the parties—and the court of appeals—agreed that indecent liberties with a minor would be a tier I offense. Part two of this post will set out an analytical framework that courts can use when deciding whether or not they can make the Wetterling finding.

14 comments on “Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part I

  1. As always, Jamie has done a helpful analysis of a difficult issue–in this instance, how federal standards would apply to termination of sex offender registration requirements. But, I think the law is not yet settled on whether the federal standards apply at all. North Carolina added the opaque Wetterling reference in 2006 in anticipation that it would adopt those standards, presumably in more precise terms, as part of its law. As Jamie points out, however, North Carolina received a series of extensions to adopt the standards and chose not to do so. It seems odd to say that, having decided not to adopt the elaborate federal tiered system on length of registration and termination, North Carolina nevertheless follows those standards and makes them a requirement for termination of registration. The Hamilton decision does not address the issue.

  2. I WOULD LIKE TO KNOW IF THERE ARE ANY NC CASES WHERE AN OFFENDER WAS RELEASED FROM THE REGISTRY EARLIER THAN 10 YEARS, AND IF SO, REASONS FOR THE RELEASE. OR I WOULD LIKE TO KNOW IF THERE ARE ANY CIRCUMSTANCES IN WHICH A JUDGE WOULD HAVE THE AUTHORITY TO REMOVE AN OFFENDER FROM THE REGISTRY. SOME OFFENDERS ON THE REGISTRY ARE ON THEIR FOR NON VIOLENT CRIMES AND FOR CRIMES THAT DID NOT INVOLVE PHYSICAL CONTACT WITH A VICTIM.

    • nope. never.

  3. Jamie-The case I referred to in my e-mail yesterday involved the petitioner withdrawing his 10-year petition. The judge may well be requiring further clarification of this issue before the matter is considered. The offender had done everything by the book and the recommendation of our Sheriff’s registration compliance section, a retired SBI agent, who does a great job, recommended defendant’s removal without reservation.

  4. Hi,
    My son finally got petition to go to court on dec 12th.. he was charged in 2001 for incest with a relative he was 16 she was 15.. do u think he has a chance of getting off.. he cant get a regular and has tried so hard.. but he does odd jobs to keep going.. hes getting married next year and needs a job..Him and the relative r very close and she trustes him around her kids.. do we need to have people at court to talk for him..

    Thank You from sandy ridge nc

  5. I would like to know if i am put on the sex offender registry league i was placed on the registry in 1997 when i was off parole with no any supervision in 1994 three years went by then in 1997 i was ordered to register

  6. Do you have an update on your blog post State v. Moir and In the Matter of Kevin McClain?

  7. Can an offender petition NC to remove them from the registry without having to pay for a lawyer? If not, what legal aid is available?

    • There is no clear statutory right to counsel for a petition to terminate sex offender registration. However, given the complexity of the issue, indigent petitioners may have a constitutional right to an appointed lawyer. As a practical matter, if a judge appoints a lawyer for the hearing, the state will pay for it.

      • how does one go about getting in front of a judge to ask for appointed council ?

  8. my son was charged with a sex crime from a now ex girlfriend while living with her, he pled no contender to the allegation he was placed on probation in California after 2 yrs he received a discharge certificate from California courts, after 5 yrs he can petition the Gov. of California for a pardon. He has never been in trouble with the law before this allegation ,now that he is living in NC does the 10 yr law apply to him and is it lawfull for the sheriff to make home visit every 3 months although he has been discharged and he does register according to california once a yr.

  9. I had registered in 97 according to law and placed on probation, due to circumstances I violated my probation and my time was activated. I did ten years and was released in 06. Could I have petitioned the court to get off the registery then? Or do I have to be out for ten years to do that?

  10. My husband needs to petition the NC courts to come off of the registry, again. the first time he was told it hadn’t been long enough which we didn’t understand because it had been ten years. Now that I read this they must have been basing their calculations on 15 years. We now live in another state and will need to buy a plane ticket once the DA’s office gives us a court date, I have asked if we can put in a request to have the court date no less than six weeks out due to this and they will not even consider it. I do think this is ironic considering they can have a time limit of no less than three weeks but heaven forbid we the people get to put in such a request. My question (that I can’t find the answer to) is, if they give us a date that is too close to find a plane ticket and we withdrawal the petition how long do we have to wait to refile? Is it 30 days or a whole year?

  11. […] some difficult questions about the interplay between state and federal law, which I discussed here and […]

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