EFTA01119329.pdf

SEX OFFENDER MANAGEMENT POLICY IN THE STATES SORNA AND SEX OFFENDER POLICY IN THE STATES TheCouncil of State C.emments Shang captd de. EFTA01119329  SEX OFFENDER MANAGEMENT POLICY IN THE STATES SORNA AND SEX OFFENDER POLICY IN THE STATES On the 25th anniversary Office —to oversee the implementation of the stan- of Adam Walsh's kidnap- dards for sex offender registration and notification as ping, the federal govern- set forth in SORNA and to issue guidelines to help ment enacted the Adam states and other covered jurisdictions implement the Walsh Child Protection provisions of the law. and Safety Act to protect States that fail to substantially implement the children and the public SORNA guidelines will see a 10 percent reduc- from violent sex offenders. tion in their Byrne Justice Assistance Grant (JAG) Adam was abducted from funds, which are used to support multi-jurisdiction a Sears department store drug task forces and to provide other support to in Hollywood, Fla., July local law enforcement agencies. The standard of 27, 1981, and later found "substantial implementation" is satisfied if a juris- murdered. His death drew diction carries out the requirements of SORNA as national publicity, and his interpreted and explained in the Final Guidelines. father, John Walsh, later SORNA requires certain requirements for sex of- became an advocate for fender notification and registration programs, and victims of violent crime and the host of the television jurisdictions are free to exceed the minimum stan- program America's Most Wanted. dards. Jurisdictions are free to implement SORNA The Adam Walsh Act sets a minimum national in any way, as long as it meets the minimum re- standard for state sex offender registries and noti- quirements. fication laws and has the potential to overhaul sex The law originally gave states three years from offender laws across the nation. The act, which is July 27, 2006, to comply with the provisions set divided into seven titles, calls for a more detailed, forth in SORNA, but allowed states to apply for uniform and nationalized system of sex offender two one-year extensions. On May 26, however, U.S. registries; addresses issues of child pornography, Attorney General Eric Holder issued a one-year Internet safety and civil commitment; creates grants blanket extension of the July 27, 2009, deadline in for electronic monitoring; and revises the Immigra- Order No. 3081-2009. Forty-eight states had already tion and Nationality Act to address immigrants who applied for an extension. are sex offenders. During the 2007 and 2008 legislative sessions, In 1994, Congress enacted the Jacob Wetterling many states began revising their laws to meet the Crimes Against Children and Sexually Violent requirements laid out in SORNA. On September Registration Act. This law created the first set of 23, 2009, Attorney General Eric Holder announced standards for sex offender registration and notifica- that Ohio and the Confederated Tribes of the Uma- tion, requiring convicted sex offenders to register tilla Indian Reservation (located in Oregon) are the their addresses with local law enforcement agencies first two jurisdictions to substantially implement and mandating the creation of state sex offender Web SORNA. sites. States had a great deal of discretion to decide which offenders should be required to register and OVERVIEW OF SORNA PROVISIONS what information should be posted about them on- SORNA sets minimum standards for all 50 line. This led to wide discrepancies between states. states, Washington, M., U.S. territories and tribal To this end, Title I of the Adam Walsh Act, com- governments. Most notably, the law expands the def- monly known as the Sex Offender Registration and inition of sexual offenses as previously used in the Notification Act, or SORNA. seeks to standardize Jacob Wetterling Crimes Against Children Sex Of- registration and notification requirements across the fender Registration Act and increases the number country, while also providing for greater offender of offenders affected by the registration laws of the accountability and increased sanctions for noncom- Wetterling Act and its public notification amend- pliance. The legislation creates the Office of Sex ment added in 1996. That amendment is commonly Offender Sentencing Monitoring, Apprehending, known as Megan's Law, named after 7-year-old Me- Registering and Tracking—known as the SMART gan Kanka, who was kidnapped, sexually assaulted, EFTA01119330  three-tiered classification system for by ZIP code or by a geographical SORNA's Three-Tiered sex offenders, based on the nature area. Jurisdictions may elect not Classification System of the crime committed and the to publicly post employment or offender's criminal history. Though education-related information for jurisdictions do not have to adopt Tier I offenders under SORNA. Tier I sex offenders—defined as the tier terminology, they do need Some items are exempt from those other than a Tier II or Tier III to meet or exceed the standards being publicly posted, including SORNA spells out. the identity of any victim, the of- offender—must register for 15 yeors, fender's Social Security number, but can appeal for removal from the Registration Information and arrests that did not result in registry after 10 years of compliance and Frequency conviction. Some items are left to or a reduction of their registration SORNA greatly expands the the state's discretion, including any requirement after five years of com- amount of information collected information about a Tier I offender pliance. Since federal law prohibits and how frequently this informa- convicted of an offense other than tion must be updated, both by the a specified offense against a minor, prison terms for greater than one year offender and by the agency control- the name of the employer of the sex in tribal court convictions, those cases ling the registry Web site. Registra- offender and the name of a school require a Tier I classification. tion is required in each jurisdiction where the sex offender is a student. in which the offender lives, attends Information provided on the Tier II offenders are those not classi- school and is employed. state's Web site must be contem- fied as a Tier III and who are con- Offenders must confirm their poraneously updated and notice victed of a felony or attempt to commit registration in person and have an should be provided to various indi- sex trafficking, coercion and entice- updated photograph taken annu- viduals and entities, including the ment, transportation with intent to ally if they are in Tier I, every six U.S. attorney general, law enforce- months if they are in Tier II, and ment agencies, schools and public engage in criminal sexual activity, or every three months if in the Tier III housing authorities in each area abusive sexual contact; use of a minor category. The offender must report where the individual resides, works in a sexual performance, solicitation any change in the information or attends school, any volunteer of a minor to practice prostitution, required for registration, such as an organizations having contact with or production or distribution of child address, within three days. minors and any organization or pornography. Tier II is also used for At a minimum, each sex offender individual requesting notification. must provide his/her name, Social offenders who are already classified Security number, address where he/ Homeless or Transient Sex Offenders as Tier I and who commit any sub- she habitually lives, employer and SORNA's Final Guidelines ac- sequent sex offense. Tier II offenders address, school (if a student) and count for homeless or transient must register for 25 years. address, license plate number and offenders by requiring, under the description of any vehicle owned or "habitually lives" definition, any Tier III offenders are felony sex offend- operated by the offender. The of- park or street where the sex of- ers convicted of aggravated sexual fender will also need to provide any fender frequents during the day or abuse, sexual abuse or abusive sexual Internet or electronic identifiers, sleeps at night, shelters where the such as e-mail addresses or instant sex offender circulates, or places in contact of a minor under age 13, messenger IDs. A criminal history public buildings, restaurants, librar- and non-custodial kidnapping. Tier III must also be included, with dates of ies or other establishments where offenders also include Tier II offenders arrests and convictions, as well as the offender may loiter. Transient who commit subsequent sex crimes. the offender's incarceration status. offenders are also required to Tier III offenders must register for life. The offender must also provide a report the addresses of places they DNA sample and finger and palm may visit for more than seven days. prints. Information published on a state Crimes Expanded and murdered in 1994 by a man who sex offender Web site must now States must also make failure to had two prior convictions for sexual include "sex offenders' names, register a criminal offense with a offenses. addresses or locations, vehicle maximum penalty of greater than descriptions and license plate one year in prison. Classifying Sex Offenders numbers, physical descriptions, sex Registration for criminal activity SORNA provides for a nationwide offenses for which convicted, and against an adult victim is no longer system of sex offender registration current photographs," according limited to sexual penetration, as that must be publicly available on to SORNA guidelines. Web sites crimes involving sexual contact are the Internet. States must establish a must be set up to allow for searches now also registrable offenses. 3 Public Safety Brief Winter 2010 EFTA01119331  New Rules for Juveniles Prior to the passage of SORNA, only juveniles prosecuted and SORNA provides convicted as adults were required to register as sex offenders. Under the for a nationwide act, juveniles adjudicated delinquent of certain serious sexual offenses system of sex offender are treated in the same manner as adult sex offenders, and must registration that must register with local law enforcement. In addition, information about them be publicly available can be released to the public. SORNA does not require regis- on the Internet. AP, tration for all juveniles adjudicated delinquent for all sex offenses, but does require registration for juveniles who are at least 14 years old at the time of the offense who are adjudicated delinquent for committing, attempting to commit or conspiring to commit serious have been convicted of sex offenses States that responded to the sexual assaults. The final guidelines in other countries or can scrutinize survey cited several factors impact- specify that in order for SORNA the way the conviction was attainted ing their ability to comply with requirements to apply, the act com- to determine the need to require SORNA requirements, including mitted must be one that, if perpe- registration of the offense. cost, the act's juvenile registration trated by an adult, would result in a and reporting requirements, and the Tier III classification. Romeo and Juliet Laws new registration requirements that SORNA allows states to reduce SORNA does not require regis- are retroactive. the registration period for such tration of people convicted of sex juveniles if the offender maintains a offenses involving consensual sexual Juvenile Sex Offenders clean record for 25 years. conduct between a victim who is least The must commonly cited barrier 13 and an offender who is no more to compliance was the act's juvenile Retroactivity than four years older. registration and reporting require- SORNA took effect immedi- ments, listed by 23 states. Under ately when the Adam Walsh Act was ISSUES WITH COMPLIANCE SORNA, juveniles as young as 14 signed, and applies to all sex offend- State policymakers have long could potentially be required to reg- ers in the federal system, regardless struggled to find a balance between a ister as a sex offender and be subject of date of conviction. Ostensibly, this public that wants to feel safe from sex to the same public disclosure as their is true for jurisdictions that adopt offenders and policy that is effective adult counterparts, making public SORNA requirements, which means in managing this class of offenders. their names, addresses, photographs, states will need to reclassify all of Passage of the Adam Walsh Act cre- and even the name and address their current sex offenders and apply ated additional pressures on states to of the schools they attend. But as new standards to their registration. modify their laws, resulting in heated discussed earlier, most states do use SORNA will also require sex debates among state policy officials their own discretion in making this offenders who have been out of the and the sex offender management information available on a Web site. system and no longer under regis- community. Advocates for juvenile offenders tration requirements to re-register None of the 47 states that re- argue that SORNA ignores signifi- should they commit another crime, sponded to a 2009 survey of states cant difference between adult and regardless of whether the new crime indicated they would meet the July juvenile sex offenders. Research is sexual in nature or not. 2009 deadline, which has since shows there are important develop- been extended until July 2010. That mental differences between juveniles Immigrant Offenders survey was conducted in February and adults, and as a result, juvenile and Foreign Convictions and March at the request of U.S. sex offenders do not pose the same SORNA amended the Immigra- Sen. Patrick Leahy of Vermont by public safety threat as adult sex tion and Nationality Act to make SEARCH, which is directed by a offenders. Because their brains are failing to register as a sex offender membership group consisting of a still developing until their early a deportable offense. States may governor-appointed representative 20s, juveniles are not fixed in their choose to register individuals who from each state.' sexual offending behavior and may 4 Public Safety Brief The Council of State Governments EFTA01119332  the most part, found the costs would Juvenile sex offenders have far outweigh the 10 percent cut in By- rne Justice Assistance Grant funding fewer numbers of victims they face in choosing not to comply. JAG funding is generally used to than adult offenders, and enforce drug laws and support law enforcement. on average, engage in less In recent years, Congress has slashed Byrne funding for state and serious and less local law enforcement from $520 mil- lion in 2007 to just $170.4 million in aggressive behaviors. 2008, with upwards of $2.5 billion cut since 2001, according to the National Criminal Justice Association. The American Recovery and Reinvest- ment Act of 2009 recently allocated an additional $2 billion in the grant funding. While Recovery Act money respond well to treatment. Juvenile the legal consequences of acts com- will boost Byrne grants, the funding sex offenders have fewer numbers of mitted prior to the enactment of the increases may only be temporary and victims than adult offenders, and on law. States, however, are not required still may not be enough to offset the average, engage in less serious and to comply with provisions that would costs of compliance with SORNA. less aggressive behaviors.2 violate their constitutions, as deter- According to an analysis by the In addition, critics of the provisions mined by the state's highest court. Justice Policy Institute, in all 50 related to juveniles argue that they To reconcile differences between states, the first year costs of imple- contradict the rehabilitative intent SORNA's requirements and the menting SORNA would exceed the and confidentiality that is inherent state's constitution, the state must act cost of losing 10 percent of the Byrne in the juvenile justice system. There in good faith with the U.S. attorney grant funding) States can expect to is also a concern that the harsh new general. The jurisdiction is still re- incur significant costs as they attempt registration laws for juveniles could quired to implement alternative laws to comply with SORNA, includ- lead to a decrease in the reporting of that fulfill the intent of SORNA. ing the costs of new personnel, new juvenile sex crimes. A federal appeals court panel software, additional jail and prison ruled Sept. 10 that juveniles con- space, court and administrative costs, Retroactive Registration victed of sex offenses in federal court and law enforcement costs. The ond most frequently before SORNA took effect in July For example, a comprehensive cost referenced SORNA barrier cited by 2006 cannot be retroactively required analysis in Virginia found the first the states (20 states) is retroactive to register under the law. The panel year of compliance with the registry registration. SORNA requires regis- ruled the registration requirement requirements alone would cost ap- tration to be retroactive for certain was an unconstitutional additional proximately $12.5 million.' After the offenders whose convictions predate punishment and would violate the first year, Virginia estimates the cost enactment or implementation of the confidentiality rules and the reha- of SORNA compliance at nearly $8.9 act in a particular jurisdiction. Spe- bilitative purpose of most juvenile million. The amount of Byrne grant cifically, the act requires the registra- court proceedings. In the ruling, funding Virginia would lose due to tion of sex offenders who remain in Judge Stephen Reinhardt of the 9th noncompliance would be approxi- the system as prisoners, supervisees Circuit Court of Appeals wrote that mately $600,000.5 or registrants, and those who re-enter the registration "requirement serves Similarly, Ohio found the cost of the system through a subsequent to convert a rehabilitative judicial implementing new software needed criminal conviction, even if it is not proceeding, sheltered from the public to create the registry would ap- sexual in nature. eye, into a punitive one, exposed for proach $500,000 in the first year States are concerned about apply- all to see, and with long-lasting sub- alone. The software would then ing the provisions retroactively, both stantially adverse and harsh effects." cost $85,000 annually thereafter. In in terms of the cost and time involved Costs of Implementation addition, Ohio estimates certifying in re-evaluating all the sex offenders Seven states were concerned with treatment programs based on the currently on the registries. the cost of implementing SORNA, new standards and complying with In addition, the retroactive provi- as the federal government has yet to increased notification laws would sions violate the constitutions of provide funds to support its imple- cost another $100,000 annually. This many states, which prohibit ex post mentation. States that have examined is in addition to other estimated facto laws that retroactively change complying with SORNA have, for increased costs, including salaries S Public Safety Brief Winter 2010 EFTA01119333  and benefits for new personnel, new Critics contend that offense-based In determining whether or not to court and administrative costs, and categorization has several inher- comply with SORNA, states may costs to counties and municipalities. ent problems, most notably that find that the costs of implementa- If Ohio were not to comply with the crime for which an offender is tion may outweigh the benefits. If SORNA, it would lose approximate- charged may not reflect the serious- states choose to comply, it is likely ly $900,000.6 ness of the underlying offense. This that these new laws will face con- could lead to an underestimation of stitutional challenges, in both state Effectiveness of the risk of offenders who plead to and federal court. Consequently, the Sex Offender Regiskalion Laws a lesser offense. As a result, many national debate over proper manage- Despite the high costs of compli- lower risk offenders could potentially ment of sex offenders is certain to ance with SORNA, there is little be erroneously classified as high risk continue. empirical proof that sex offender and publicly identified while danger- registries and notification make ous offenders with more favorable REFERENCES communities safer. court outcomes will have fewer ' SEARCH. "Survey finds no state in position In 1999, University of Memphis limits placed upon them. There is to comply with July 2009 deadline for Walsh researchers conducted a survey of no empirical research that indicates Act's expanded sex offender monitoring." Available from lutp://www.search.org/about/ psychologists, social workers and the crime of conviction is related to news12009/survey.asp. Accessed 19 Septem- counselors who treat sex offenders. the risk of recidivism, but it will be ber 2009. The study revealed that nearly 70 extremely expensive for states to re- I National Center on Sexual Behavior of percent of those surveyed felt that assess all their current sex offenders Youth. "Fact Sheet: What Research Shows About Adolescent Sex Offenders" July 2003. Internet sex offender registries cre- based on their offense. Available at: lutp://www.nrsby.org/pages/pub- ate a false sense of security. The au- lications/What%20Research%20Shows%20 thors presented possible reasons for Notable Legal Challenges About%20Adolescent%20Sex%20Ofiend- this false sense of security, including SORNA continues to face mul- ers%20060404.pdf. Accessed 19 September 2009 the fact that not all offenders are tiple challenges in both federal and Justice Policy Institute. "What Will It Cost included on every site, sex offend- state courts. States to Comply with the Sex Offender ers may move often, not all sex For example, Senate Bill 10 passed Registration and Notification ActrAvailable offenders comply with their registra- by the Ohio legislature to comply at http://www.juslicepolicy.oreitnages/ upload/08-08_FAC_SORNACosts_ltpdt tion requirements, and those who with SORNA has faced numerous Accessed 19 September 2009. have committed sex crimes against legal challenges since its adoption ' 3 Virginia Department of Planning and Bud- children but were never caught will in 2007. In 2009, the Ohio Appel- get 2008 Fiscal Impact Statement (Richmond. not be included in the registry. The late Court found in Spangler v. State VA: Department of Planning and Budget. 2008). same group of respondents was even that the compliance legislation to s Office of Justice Programs. U.S. Department more unconvinced of the effective- be a violation of both the Ohio and of Justice. "Justice Assistance Grant (JAG) ness of registry sites, with more than U.S. Constitutions. Program: FY 2009 Allocations and Disparate 80 percent saying they did not think In Nevada, U.S. District Judge Information."Available at http://www.qp. usdotgovalA/grant/09jagallocations.html. the sites would result in a decrease James Mahan has issued a perma- Accessed 19 September 2009. in the incidences of child sexual nent injunction barring the state "Office of Justice Programs. U.S. Department abuse? Little research has been from applying two new sex offender of Justice. "Justice Assistance Grant (JAG) done to examine the effects of on- laws retroactively. He ruled that the Program: FY 2009 Allocations and Disparate Information."Available at IttipiAvww.ojp. line registries on recidivism rates. laws, which the Legislature passed usdolgovilLIMrant/09jagallocations.himl. At least half the states currently in 2007 to bring the state into com- Accessed 19 September 2009. categorize sex offenders using pliance with the Adam Walsh Act, ' Alvin Malesky & Jeanmarie Keirri, Mental risk-based assessment to evalu- violated the U.S. Constitution under Health Professionals' Perspectives on Sex Of- fender Registry Web Sites. 13 Sexual Abuse: ate known risk factors and screen both the Due Process and Ex Post A Journal Of Research & Treatment 53.58 offenders into categories based on Facto clauses. In his ruling, Judge (2001); sec also Peter Finn. Sex Offender their likelihood to re-offend. When Mahan found that "the application Community Notification, National Institute of used correctly, such risk-based of these laws retroactively is the Justice. NCJ-162364 (1997), available at http:// www.gpoaccess.gov. assessment tools better predict the equivalent of a new punishment "ACLU V. Masto. October 7, 2008. Available likelihood a sex offender will com- tacked on to the original sentence — at www.kg.state.nvais/75th2009/exhibits/As- mit another offense, help identify sometimes years after the fact —in sembly/CPP/ACPP623E.pdf. specific risk factors and monitor violation of the Ex Post Facto and This project is supported by Award No. 2006-WP- treatment. Under SORNA, offend- Double Jeopardy Clauses of the BX-K003. awarded by the Bureau of Justice Assis- ers are categorized based on their U.S. Constitution, as well as the tance. Office of Justice Programs. U.S. Department of Justice. Points of view in this document are those offense, rather than by their risk to Contracts clauses of the U.S. and of the author and do not necessarily represent the re-offend. Nevada Constitutions.", official policies of the U.S Department of Justice. 6 Public Safety Brief The Council of State Governments EFTA01119334