dissenting.
I agree with my colleagues that the legislature wanted the three defendants in this case (and all other similarly situated defendants) to register as sex offenders. But that is not the issue. Instead, the issue is whether these three defendants violated AS 11.56.840-the statute which declares that a person is guilty of a misdemeanor if they fail to register as a sex offender "as required in AS 12.68.010".
These three defendants did not violate a duty to register "as required in AS 12.63.010" because the registration provisions contained in AS 12.63.0110 do not apply to these defendants. Rather, the provision of law that obliges these three defendants to register as sex offenders, and that sets a deadline for their registration, is found in a special enactment of the legislature: SLA 1994, ch. 41, § 12 (as later modified by 18 AAC 09.010(d)). The defendants may have violated this special statute and its accompanying regulation, but the defendants did not violate any provision of AS 12.68.010. Therefore, the defendants are not guilty of violating AS 11.56.840.
Underlying Facts
The three defendants in this case are "sex offenders" for purposes of Alaska's Sex Offender Registration Act; that is, they were convicted of offenses listed in AS 12.63.100(6). Each of the defendants served his prison term and completed his probation before August 10, 1994-the effective date of the Registration Act.
In 1998 (approximately four years after the Registration Act took effect), the defendants were charged with violating AS 11.56.840 because they had never registered as sex offenders. They ultimately pleaded no contest to this charge, reserving their right to pursue this appeal.
The registration deadlines set forth in AS 18.63.010
Under AS 12.68.010(a), all sex offenders who are physically present in Alaska must register. The statute sets three deadlines for this registration. Sex offenders who are incarcerated in Alaska must register within the 30 day period before their release from prison.1 Sex offenders who are present in Alaska at the time of their conviction, but who are not incarcerated, must register by the next working day following their conviction.2 And sex offenders who were not physically present in Alaska at the time of their conviction or release from prison, but who later come to Alaska, must register by the next working day after their arrival in this state.3
The special registration deadline established by the legislature (and later modified by the Department of Public Safety) for sex offenders who had completed their prison terms by the time the Sex Offender Registration Act took effect
All three of the deadlines set forth in AS 12.63.010(a) are tied to a particular event in the defendant's life: the day of the defendant's conviction (if the defendant is not sentenced to prison), or the day of the defendant's release from prison, or the day of the defendant's arrival in Alaska. All three deadlines are based on the assumption that *1116the Sex Offender Registration Act is in effect when the specified event occurs. People like the defendants in this case-sex offenders who were convicted in Alaska, who were incarcerated in Alaska, and who finished serving their prison terms before the Registration Act took effect-obviously will have missed the registration deadlines established in AS 12.63.010. The legislature realized this, and they made special provision for this group of defendants when they enacted the Sex Offender Registration Act.
In an uncodified: portion of the session law-SLA 1994, ch. 41, § 12(a)-the legislature established a special registration deadline for persons in the defendants' situation:
A sex offender who has been unconditionally discharged from a sex offense on or after July 1, 1984, but before the effective date of this Act, shall register ... by July 1, 1994. [Likewise, a) sex offender with two or more convictions for a sex offense before the effective date of this Act, regardless of [when] the sex offender was unconditionally released ..., shall register under AS 12.68.010 ... by July 1, 1994.
The legislature established this July 1, 1994 deadline with the expectation that the Sex Offender Registration Act would be in effect by that date. not go into effect until August 10, 1994. Moreover, police agencies were not prepared to handle sex offender registration for many months following the enactment of the Registration Act. To solve this problem, the Department of Public Safety promulgated a regulation, 13 AAC 09.010(d), that set a delayed registration deadline for sex offenders in this situation: However, the law did
If the time period for initial registration set out in AS 12.68.010 has already passed as of 12/31/95, [the sex offender] shall initially register no later than the last day of [January, 1996].
This deadline-January 81, 1996-was the one that applied to the defendants in the present case, and it is this deadline that they failed to meet.4
AS 11.56.840 punishes a failure to meet the three registration deadlines set forth in AS 12.63.010, but it does not punish a failure to meet the registration deadline established in 18 AAC 09.010(d) for sex offenders released from custody before the effective date of the Registration Act
The problem in this case appears to be bad drafting.
All sex offenders physically present in this state have a duty to register, and the legislature clearly wanted to enforce that duty by imposing criminal penalties on those who failed or refused to honor it. But when the legislature drafted AS 11.56.840, the statute that makes it a crime to fail to register, the legislature defined the crime solely with respect to the deadlines specified in AS 12.63.010. They apparently forgot about the defendants who completed their sentences before the passage of the Registration Act and whose registration deadline was specified in 13 AAC 09.010(d).
Under 13 AAC 09.010(d), the three defendants in this case were clearly obliged to register as sex offenders on or before January 31, 1996. And they have conceded that they failed to do that. But one of the cardinal principles of our law is mullum crimen sine lege, nulla poena sine lege5-the principle that no person shall suffer eriminal punishment unless the legislature (or an agency with power delegated by the legislature) has enacted a statute or regulation that makes the person's conduct a crime. This principle is codified in AS 11.81.220, which states:
*1117No conduct constitutes an offense unless it is made an offense by (1) this title; (2) by a statute outside this title; or (8) by a regulation authorized by and lawfully adopted under a statute.
As Professor LaFave notes in his treatise on the substantive criminal law, "sometimes the legislature forbids conduct and then omits (in most cases unintentionally) to provide for a penalty.... In such a situation{,] one who engages in the forbidden conduct is not guilty of a crime." 6
This passage concisely describes what has happened here. The Alaska Legislature ordered these three defendants (and all similarly situated sex offenders) to register by the deadline first established in SLA 1994, ch. 41, § 12 and later modified by 13 AAC 09.010(d). But the legislature either declined or (more probably) neglected to enact a criminal penalty for violation of this duty.
A similar situation was presented to the Virginia Court of Appeals in Cook v. Commonwealth.7 The defendant in Cook was convicted of attempted second-degree murder. Although the Virginia legislature clearly intended for attempted second-degree murder to be a crime, the legislature forgot to include a reference to that crime in the statute that listed the punishments for various categories of attempts.8 That is, "although [the] defendant's conduct [was] proscribed by statute, it was an offense without a penalty." 9 Because the legislature had not specified a punishment for attempted second-degree murder, the Virginia court held that the defendant could not be convicted of this offense."10
I conclude that we must apply this same rule of law to the case before us.
Conclusion
The defendants stand convicted of failing to meet the registration deadlines contained in AS 12.63.010(a)-deadlines that do not apply to them. They admittedly failed to meet the registration deadline that does apply to them (the deadline set forth in 18 AAC 09.010(d)), but there is no criminal statute that punishes a failure to meet this deadline. For this reason, the defendants' convictions must be reversed.
. See AS 12.63.010(a)(1).
. See AS 12.63.010(a)(2).
. See AS 12.63.010(a)(3).
. In 1998, the legislature enacted a new uncodi-fied law to deal with these defendants. SLA 1998, ch. 106, § 25(a) states that sex offenders with two or more convictions, or one conviction. for an aggravated sex offense as defined in AS 12.63.100(1), "shall register under AS 12.63.010, as amended by secs. 7-11 of this Act, by the 60th day after the effective date of this Act." This same uncodified section further states that "a sex offender ... with only one conviction for a [non-aggravated] sex offense ... who was required to register under sec. 12, ch. 41, SLA 1994, shall continue to register as provided by AS 12.63.010, as amended by secs. 7-11 of this Act."
The following year (in November 1999) 13 AAC 09.010(d) was repealed, apparently in the belief that it was no longer needed.
. Literally, "no crime without a law, no punishment without a law".
. Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 1.2(d), Vol. 1, p. 13.
. 20 Va.App. 510, 458 S.E.2d 317 (1995).
. See id. at 318.
. Id.
. See id. at 319.