By Sandy . . . It happened in Arkansas, in Garland County, and, according to local media, the jury deliberated for 17 minutes before recommending the highest allowable sentence plus a $5,000.00 fine.

Granted, this registrant does have a rather colorful history of failing to register. He has several convictions for that offense in three states, including this one and another in Arkansas. However, his criminal record reveals only one other conviction, his sexual crime conviction in 2002.

Making this situation even more ludicrous, this most current conviction was not an actual refusal to register as required. He had registered, and timely, but he moved from that location and failed to report the move to local law enforcement within five days. He was shortly thereafter arrested, so they clearly had little difficulty locating him.

There is no indication whatsoever that he took advantage of his flying beneath the radar to commit any new crimes.

The jury had a lot of leeway. The conviction required a sentence with a range of from six to 30 years. The trial was only one day, so they weren’t exhausted from a lengthy ordeal. If they felt that he needed a sentence that would encourage him to take his registration duties more seriously, six or even ten years would have sufficed. But 30?

Some spot-checking suggests that a significant number of states classify failure-to-register as a low-level felony with an average maximum requirement, some even for additional offenses, of from less than a year up to around five years. Several states classify a first offense as a misdemeanor with subsequent offenses deemed a very low level felony. Federal convictions dictate an assessment of a fine and/or a prison sentence up to ten years.

Although not very many states use it, a classification of a misdemeanor is more appropriate considering that the sex offender registry, in every state, is a CIVIL REGULATORY SCHEME. It is not a criminal statute. Why should failing to update it be subject to habitual offender enhancement, which is what results in ridiculously high sentencing? Habitual enhancement is intended to be used when new serious or violent crimes have been committed.

The words “classified as a habitual offender” are in the very first sentence of the media piece about this registrant. This is what enables the offense to be charged as a class A felony and such a high sentence given. It is up to the district attorney to decide how to charge an offense, and most states allow this enhancement to be used in cases of repeat failure to register.

Of the states that were spot checked, extremes for failure to register are astronomical. New York appears to dictate no jail time but only probation for up to seven years if repeat, less if first time (the NY SOR has been contacted to verify this; when they respond, it will be updated). On the high end, Arkansas’ 30 years is the highest, with West Virginia at 25 and Louisiana at 20 in second and third places. Only a fourth of the states have been checked, but the southern states appear to tend to have the highest penalties.

However, as stated, many states allow “habitual offender enhancements,” which can add many years to even the top allowable penalty for its classification. So, theoretically, Illinois’ top allowable penalty of seven years for second and subsequent charges of failure to register could be “enhanced” up to 20 or 30 years. Only a very few, such as New Mexico, have been found to have specific law prohibiting the use of this enhancement when the only offense was repeat failure to register, law that other states should emulate.

Failure to register–or to update registration elements timely–in the absence of an actual criminal act, should NOT be eligible for long prison sentences or heavy fines, whether allowed through a higher charging of repeat offenses or through enhanced “habitual offender” penalties.

The post A 30-year sentence for sex offender failure to register: How far over the top will this go? first appeared on NARSOL.