HB5345 Amended on House Floor to Include HB5502 Elements thus Bypassing the House Judiciary Committee

Philip Kaso

UPDATE – 2/27/2024 By Philip… the HB5345 amendment, which brought in all of Delegate Young’s HB5502 registry revisions, was withdrawn, and the original committee substitute bill, which updates and strengthens WV §15-12 by clearly codifying how those citizens required to register who have no permanent residence can satisfy their legal obligation passed and was sent to the Senate where it was subsequently moved to the Senate Judiciary Committee.

By Philip . . . HB5345 was amended on the House floor to Include HB5502 elements bypassing House Judiciary Committee consideration.

On Friday, 23 February, Delegate Young convinced Delegate Chiarelli to accept a friendly amendment to his HB5345 [updating the registry code to provide a definitive method for non-housed registrants to stay in compliance], which brought in all of Delegate Young’s HB5502 registry revisions including the most egregious provision the introduction of a residency exclusion restriction of 2,500 feet of any public or private school or child daycare facility. In doing so, Delegate Young completely bypassed the Judiciary Committee, where HB5502 currently is, was not given any attention, and missed the ‘bills due out of committee’ deadline today.

Delegate Chiarelli’s acceptance of this friendly amendment without moving for HB5345 to be referred back to the Judiciary Committee sets up HB5345 for its 3rd reading [Right to Amend]on  Monday, 2/26, during the House floor session starting at 10:00 AM.

Since the floor amendment was accepted without objection, HB5345, as amended, is expected to pass via a House vote and be referred to the Senate.

CALL TO ACTION — WHAT TO DO NOW

Contact your individual delegate and REQUEST/DEMAND the following:

  • Amendments to HB5345
    1. HB5345 be amended on its 3rd reading to strike §15-12-10(b) as outlined below:
      • (b) Effective January 1, 2026, during the duration of the registration period, no registrant may reside within 2,500 feet of any public or private school or child daycare facility. Any registrant that is found to be residing within 2,500 feet of a public or private school or child daycare facility shall be subject to the penalty provided pursuant to §15-12-8 (d) of this code.
    2. HB5345 be amended on its 3rd reading to change the three business days update back, restoring the ten business day requirement for updates in §15-12-3(a).
      • changing the current proposal of “… within ten three business days, …” back to “… within ten three ten business days, …”
  • An outright NO vote on HB5345. If a non-starter, then a NO vote if the above amendments are not introduced and accepted.

Arguments you may use to support the requested amendments:

  • On requested amendment 1. above:
    • Residency restrictions are NOT supported by the “Adam Walsh Child Protection and Safety Act of 2006” (Sensenbrenner, 2006) nor a recognized shortfall to substantial compliance according to the U.S. Department of Justice SMART Office’s SORNA Substantial Implementation Review State of West Virginia (SORNA Substantial Implementation Review State of West Virginia, 2016).
      1. There is also no empirical evidence that the presence or distance restrictions make anyone safer. In fact, they do the opposite.
        1. In its decision, the Sixth Circuit Court of Appeals not only agreed but went on to declare that adding geographic exclusionary zones, among others, made Michigan’s SORNA, post its 2006 and 2011 amendments, punishment and therefore could not be applied retroactively (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
        2. Moreover, the Sixth Circuit Court of Appeals said that geographic exclusionary zones and in-person reporting requirements are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
        3. Additionally, Human Services professionals and nationally recognized experts on sexual abuse and sex offender legislation agree that distance restrictions are counterproductive. According to Gina Puls (Puls, 2016), residency restrictions, which prevent sex offenders from living within an established distance of various places where children gather, have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected.
      2. Establishing presence or distance restrictions expands the use and impact of registry law in West Virginia. It invites litigation if passed as it transitions the WV registry from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
        1. Article III, Section 4 of the West Virginia Constitution prohibits “No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.” (West Virginia Constitution, n.d.) There is little doubt that this bill could be anything other than a retroactive increase in punishment, ex post facto, because it seeks to place retroactive restrictions and punishment on registrants who have completed their court-ordered sentences.
        2. WV §15-12-2 (a) makes the WV registry retroactively and prospectively adding a presence or distance restriction to the code, coupled with the above clause, would make the presence or distance restriction retroactive, and, as already established above would therefore transition the WV registry schema from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
          • Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him. (Hensler v. Cross – West Virginia – Case Law – VLEX 895334483, n.d.)
        3. Other jurisdictions have attempted to impose similar restrictions, only to have them stricken on constitutional grounds – most recently in Does v. Snyder, where the Sixth Circuit Court of Appeals determined Michigan’s SORNA to be punishment and may not be applied retroactively. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
  • On requested amendment 2. above:
    • Changing the current registry update requirement from within 10 business days to within 3 business days does not make West Virginia NOT substantially compliant (SORNA Substantial Implementation Review State of West Virginia, 2016); however, it will cause many more technical registry violations, requiring judicial resources to process, in prison, and supervise post-release; and significant associated unnecessary costs.

 

WVRSOL wishes this was better news; however, “it ain’t over until the fat lady sings” is apropos here — EMAIL YOUR DELEGATE TODAY (call in the morning as well if possible)!!

 

Works Cited

Does v. Snyder. No. 15-1536. United States Court of Appeals for the Sixth Circuit. August 25, 2016. https://casetext.com/case/doe-v-snyder-2

Hensler v. Cross—West Virginia—Case Law—VLEX 895334483. (n.d.). Retrieved February 11, 2024, from https://case-law.vlex.com/vid/hensler-v-cross-no-895334483

Puls, G. (2016). No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders. Boston College Journal of Law and Social Justice, 36, 319.

Sensenbrenner, F. J. (2006, July 27). H.R.4472 – 109th Congress (2005-2006): Adam Walsh Child Protection and Safety Act of 2006 (2005-12-08) [Legislation]. https://www.congress.gov/bill/109th-congress/house-bill/4472

SORNA Substantial Implementation Review State of West Virginia (p. 13). (2016). U.S. Department of Justice – SMART Office. https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/westvirginia-hny.pdf

West Virginia Constitution. (n.d.). Retrieved February 10, 2024, from https://www.wvlegislature.gov/wvcode/wv_con.cfm?lv=true#articleIII

 

Click here for a PDF of the house floor amended HB5345: HB5345 (vHF-amended)_2-23-24

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