The Wetterling Finding: Not an Unconstitutional Delegation

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The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply 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 law generates some difficult questions about the interplay between state and federal law, which I discussed here and here.

The latest case is In re McClain. In McClain, a registrant petitioned for removal from the sex offender registry after 10 years of registration for his 2001 conviction for indecent liberties with a child. The trial court denied his petition, concluding that removing him from the registry would run afoul of federal standards. Even assuming his registration crime could be classified as a Tier I offense under federal law (which our appellate courts assumed to be true in In re Hamilton, __ N.C. App. __, 725 S.E.2d 393 (2012), and which the parties apparently agreed on here), McClain had subsequent felony convictions that rendered him ineligible for the “clean record” status that would reduce his minimum registration period from 15 years to 10.

McClain appealed, arguing that incorporating federal standards into state law by way of G.S. 14-208.12A(a1)(2) is an unconstitutional delegation of legislative authority from the General Assembly to Congress—especially to the extent that the law purports to incorporate “future enactments to be promulgated by Congress.” Slip op. at 6. It’s an issue I discussed briefly in this 2009 post.

The court of appeals disagreed and affirmed the trial court’s denial of McClain’s petition. The court concluded that the General Assembly did not improperly delegate the task of filling in the details of the state’s sex offender registration program. To the contrary, the state and federal programs exist “side-by-side,” and G.S. 14-208.12A(a1)(2) was, the court said, merely the legislature’s attempt to “substantially implement the Adam Walsh Act[].”

There may be room for debate about whether G.S. 14-208.12A(a1)(2) was added to the law specifically to implement the Adam Walsh Act, or whether it was a broader attempt to keep us in line with evolving federal standards. The Wetterling provision in subdivision (a1)(2) was added to a bill (H 1896) before the Adam Walsh Act became law, and years before the U.S. Department of Justice issued its final guidelines. And in any event, the USDOJ does not view North Carolina as being substantially compliant with federal law—although that may have more to do with our laws on juvenile registration than on our minimum registration length for adults.

Regardless, McClain is now the second case (along with Hamilton) indicating that the Wetterling finding essentially trumps the minimum registration periods described elsewhere in state law. That reality is reflected in this paper, which gives a finding-by-finding summary of the petition hearing process. I also recommend reviewing John Rubin’s summary of the registration termination process, available as part of his guide on Relief from a Criminal Conviction.

One comment on “The Wetterling Finding: Not an Unconstitutional Delegation

  1. Federal Government Starts coercive takeover of state only crimes

    ***1994, Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 170101, 108 Stat. 1796, 2038 [codified at 42 U.S.C. § 14071 (2006)]. 1994–Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act.

    [Congress promulgated the Wetterling Act under authority granted by the Military Regulation Clause, Art. I, §8, cl. 14, and the Necessary and Proper Clause, for Federal Crimes

    Congressional Misuse of Authority

    Article 1, section 8 clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

    Article 1, section 8 clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Article 1, Section 9 Clause (2) and (3)

    2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    3: No Bill of Attainder or ex post facto Law shall be passed.

    A CLOSER LOOK
    Article I “Section 8. The Congress shall have Power . . .”
    See: United States v. Sharpnack – 355 U.S. 286 (1958)

    The Assimilative Crimes Act of 1948, 18 U.S.C. § 13, is constitutional insofar as it makes applicable to a federal enclave a subsequently enacted criminal law of the State in which the enclave is situated. Pp. 355 U. S. 286-297.

    Mann Act. 18usc 2421

    Article. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
    Article IV. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
    A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
    (This is why “life time state sex offender registration” is so important to the federal government. Federal 18 usc 109 (a), 18 ucs 2250 (a) Federal registration.. State 18 usc 109 (b), 18 usc 2250 (b) state registration, and not federal statutes changing state only statutory sentencing guidelines.)
    Mann Act (18 usc 2241), Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.)
    (18usc13, assimilative crimes Act). ( 1948 Act based on Jun 25, 1910)
    Laws of States Adopted For Areas Within Federal Jurisdiction
    a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
    (b)
    (1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the influence of a drug or alcohol, shall be considered to be a punishment provided by that law. Any limitation on the right or privilege to operate a motor vehicle imposed under this subsection shall apply only to the special maritime and territorial jurisdiction of the United States.
    (2)
    (A) In addition to any term of imprisonment provided for operating a motor vehicle under the influence of a drug or alcohol imposed under the law of a State, territory, possession, or district, the punishment for such an offense under this section shall include an additional term of imprisonment of not more than 1 year, or if serious bodily injury of a minor is caused, not more than 5 years, or if death of a minor is caused, not more than 10 years, and an additional fine under this title, or both, if—
    (i) a minor (other than the offender) was present in the motor vehicle when the offense was committed; and
    (ii) the law of the State, territory, possession, or district in which the offense occurred does not provide an additional term of imprisonment under the circumstances described in clause (i).
    (B) For the purposes of subparagraph (A), the term “minor” means a person less than 18 years of age.
    (c) Whenever any waters of the territorial sea of the United States lie outside the territory of any State, Commonwealth, territory, possession, or district, such waters (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) shall be deemed, for purposes of subsection (a), to lie within the area of the State, Commonwealth, territory, possession, or district that it would lie within if the boundaries of such State, Commonwealth, territory, possession, or district were extended seaward to the outer limit of the territorial sea of the United States.
    SMART OFICE 2012

    **In the United States, sex offender registration is conducted at the local level and the federal government does not have a system for registering sex offenders.

    **Each State has its own distinct sex offender registration and notification system. The District of Columbia and the five principal U.S. territories each have their own systems, as well.

    **Every jurisdiction (meaning each State, Territory, or Tribe) makes its own determinations about who will be required to register, what information those offenders must provide, which offenders will be posted on the jurisdiction’s public registry website, and so forth.
    **Every one of these systems has its own nuances and distinct features.

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