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Lack of national guidance over how to implement a new federal sex offender registration and monitoring law for 400,000 registered offenders has left law enforcement and court officials around the country scrambling and confused. “Not a lot of guidance has been forthcoming,” said Richard Gayler, western regional president of the Federal Probation and Pretrial Officers Association in Moscow, Idaho. Gayler said the association watched the legislation as it developed last year “because of the magnitude of what was coming. We’re responsible for checking up on these people.” Michael Patnaude, president of the association’s northeast region in Albany, N.Y., echoed Gayler. “There hasn’t been a ton of direction at this point,” he said. Many prosecutors, pretrial services officers and even judges did not realize that the new law mandates electronic monitoring of anyone released on bail. In addition, no one seems to have the same opinion about whether to apply the law’s mandate retroactively. And some believe it relaxes the search standards for convicted sex offenders once released from custody, Patnaude said. List of mandates The Adam Walsh Child Protection and Safety Act of 2006, enacted on July 27, mandates a national sex offender registry; imposes up to 20 years in prison for defendants who fail to register in a timely fashion; mandates electronic monitoring of defendants while free on bail; and allows DNA samples from those detained in sex crime cases. The law also defines three tiers of sex offenders for registration based on the seriousness of the crime, but not all states have the same tiered system. The Administrative Office of the U.S. Courts, which oversees probation and pretrial services officers, sent an analysis of the bill’s requirements to all office heads immediately after the law passed, according to Karen Redmond, spokeswoman for the office. As for sex offenders prior to their sentencing, it is up to the U.S. Department of Justice to issue regulations, she said. Despite repeated promises over the past month from the Justice Department’s Office of Justice Programs, which oversees the federal sex offender registry, the office failed to explain what guidance, if any, has been sent to prosecutors or court staff to carry out the act. Also, the Executive Office for U.S. Attorneys did not respond to a similar request. Montgomery, Ala., attorney Stephen Glassroth’s experience within a week after the law took effect typifies the concerns. Glassroth’s client was released on bail without electronic monitoring because no one was aware of the new requirement. But the government returned to court asking the judge to revoke bail and “tried to make it sound like the magistrate judge had ignored the law,” said Glassroth of the Glassroth Law Firm. Several U.S. attorney’s offices in California did not respond to questions about what advice Washington has provided on how to handle cases for now, but a few line prosecutors say, unofficially, there has been little guidance so far. Defense lawyer William Buckman, chairman of a sex offender task force for the National Association of Criminal Defense Lawyers (NACDL), said some provisions of the law “may very well be unconstitutional because they essentially interfere with states’ rights.” Buckman of the William H. Buckman Law Firm in Moorestown, N.J., said some states give offenders 10 days to register, rather than five under new federal terms. The Supreme Court has ruled that the federal government cannot trump state responsibility in some areas. This could very well be one such area, he said. Electronic monitoring “is the Star Wars of criminal law,” he said. “If this is imposed on states it could require a bank of traffic controllers larger than the air-traffic control system for planes,” he said. Buckman said that the NACDL task force is preparing a report on the overall efficacy of many of these sex offender reporting laws and whether they have spawned more crime through vigilantism against suspected offenders. Some jurisdictions have been more aggressive than others about monitoring. Federal authorities in Nevada plan to impose monitoring retroactively on any defendant with a case pending when the law took effect, while other offices will not. Other significant changes come in the search and seizure authority for parolees. It is possible probation officers don’t need reasonable suspicion for searches anymore under this law, Patnaude said, but there has been no national response from the Administrative Office of the U.S. Courts to questions on the issue.

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