The proposed changes will increase the number of people on the registry by mostly adding many people back on to the registry who in some cases haven’t been on a registry for decades and haven’t committed any new sex offenses that would create justifiable grounds or any real need to place them back on and identify them to the public. The Smith V. Doe (2003) decision incorrectly stated that the recidivism rate is “frightening and high” as justification for calling the registry non-punitive (giving it a legitimate purpose outside of punishment). While research has indicated the recidivism rate to be quite low and that this language is completely wrong, those spending over a decade off the registry without new offenses have also already proven that they are not a risk to the public any more than some other random person in the public because if they were such a risk and not even on a registry they would have re-offended again. This is especially true for someone without a registration requirement that allows them to live freely in their jurisdiction where people can not use the registry to help identify them. Yet, that person who has been off the registry has still not recidivated. These cases in particular don’t seem to pass the test outlined in Smith v Doe which would would make this sort of retroactive application non-punitive because they have already proven that their rate of recidivism is neither frightening or high.

I therefore strongly oppose any effort to retroactively add people back to the registry who have not recidivated to trigger this requirement. There has been enough time since the adoption of the previous rules for retroactive additions to the registry under AWA and as such those not yet added back to the registry retroactively under the previous rules are not high enough risk to be able to justify any such application to them where this makes sense unless the goal is to punish them for something that happened many decades ago.

While I believe the registry is useless and should be completely abolished, if it is to remain, any new retroactive application is nonsensical and can not be properly justified as a non-punitive regulatory scheme as authorized by the Smith v. Doe case law. Even if you disagree, it serves no purpose except to make it more expensive to operate the SORNA scheme. As such the powers delegated to you as Attorney General in relation to the AWA, should be used only to make more appropriate changes to the regulations such as removing retroactive application of the AWA in its entirety.

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