Law and Criminal Justice - Sex Offender Registration Correspondence July 30, 2007

Law and Criminal Justice Committee

July 30, 2007

Ms. Laura L. Rogers
Director, SMART Office
Office of Justice Programs
United States Department of Justice
810 7^th Street, NW
Washington, DC 20531

RE: Proposed Guidelines To Interpret and Implement The Sex Offender Registration and Notification Act.
Docket ID: OAG Docket No. 121

Dear Ms. Rogers:

I am submitting the following comments to the proposed guidelines to Public Law 109-248 for the record on behalf of The National Conference of State Legislatures (NCSL). NCSL is the nation’s oldest and largest organization representing the 50 state legislatures, the District of Columbia and the U.S. Territories.

The national sex offender registration standards were first created by the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act of 1994. However, with the passage of the Adam Walsh Child Protection and Safety Act of 2006, Congress imposed new requirements on the states in an area which had been traditionally regulated by the states. P.L. 109-248 therefore, placed additional burdens on the 50 state legislatures, the District of Columbia and the U.S. Territories in order to comply with the new mandates.

NCSL states for the record that the proposed guidelines compound the burdensome, preemptive scheme of the underlying law they seek to clarify. As such, the guidelines promote a burdensome, preemptive scheme for the states. In addition, without the appropriations of funds authorized, the act and its implementation guidelines represent a large unfunded mandate for states. Further, the additional amounts and kinds of information on each registered sex offender that states are required to collect are imposed under the authority of the Attorney General, thus representing a regulatory expansion of what is already a legislative preemption of state law. It is NCSL’s assessment that each and every state legislature will have to undergo detailed and extensive review of its laws against the provisions of the Act and implementation requirements of the guidelines. Required changes to state policy in areas traditionally within the purview of states will be likely in all states and extensive in some.

NCSL expresses concern that guidelines implementing the minimum sex offender registration standards being imposed on states were prepared absent any current federally funded analysis as to what extent each jurisdiction has policies and procedures that comply with Title I of Public Law 109-248, and the amount and kinds of adjustments to state policy and practice that will be required in order to comply and avoid a 10 percent reduction to Byrne law enforcement assistance grants. Additionally, NCSL, as a representative of the entities for which these guidelines apply to, is deeply concerned by the refusal of the SMART office to include them in the drafting and decision-making process. The drafting process should be a dialogue between the SMART office personnel and the impacted stakeholders, such as NCSL, and not the product of unelected government officials’ unilateral decisions. NCSL believes a group of advisors, consisting of those entities and organizations with a stake in the outcome of the drafting process, should be in place to assist the SMART office in determining the best and least preemptive impact on the 50 state legislatures, the District of Columbia and the U.S. Territories.

NCSL’s specific concerns about the guidelines as drafted are: 1. the retroactivity of offender registration, 2. the definitions of the offenses for which offenders are required to register and in-person reporting requirements, 3. the penalties for failing to register, 4. the registration and publication requirements, 5. the collection of information detailing foreign convictions, 6. the requirements for the registration of juveniles, 7. the feasibility of the Indian tribes’ compliance with the national registration requirements, 8. the requirements regarding digitized information, 9. the shifting of responsibility for offenders from federal or military custody to the states and 10. the issue of the sealing of criminal records. Each of these will now be discussed individually.

1. NCSL is deeply concerned about the effects that will be caused by several of the Sex Offender Registration and Notification Act (SORNA) mandates including the retroactivity of offender registration. In addition to the different state laws defining the elements of the crimes for which registration is required for offenders, states have rules in place governing the process, length and information that needs to be obtained from the offenders. Furthermore, states have differing rules in place for how long they must maintain the information on each offender who registered. The new federal registration requirement is said to not include offenders who were convicted pre-SORNA and who are no longer under state supervision, but if such a person ever reenters the state criminal justice system, states would be required to enter this person into the sex offender registry at that time. The National Conference of State Legislatures is firm in our belief that the retroactivity provision should only apply to currently registered sex offenders in the states and not to those no longer registered so as to respect state sovereignty over the treatment of sex offenders as laid out in each state’s respective sex offender registry provisions.

2. Another troubling provision focuses on the definitions of the offenses for which offenders are required to register and the offender in-person reporting requirements. Crime classifications and definitions differ widely in each state’s criminal code. For example, Idaho is struggling with how to comply with the new classification system while maintaining their current laws. Under Idaho’s current law, the most serious offenders are classified as Violent Sexual Predators. Violent Sexual Predators are subject to increased supervision and a greater duty to report and keep their registration information current. However, the Idaho-specific law will be preempted by a federally mandated tier system that will classify the offenders according to different criteria. It is unclear in the guidelines how these differences will be reconciled in determining state compliance, and in Idaho’s situation, how the Violent Sexual Predator status can be maintained. Similarly, with regard to the tiers called for in the Act, the guidelines state the tiers are provided for substance, not form. However, in substantively meeting the requirements of the act in state sex offender registration law, there is little room for state flexibility in determining which offenses and categories of offenders are suitable for various requirements.

The requirements regarding immediate and in-person reporting of sex offenders are particularly burdensome for states and localities, with no flexibility built into the guidelines or funding provided for law enforcement agencies to develop this capacity.

3. Penalties for non-compliance with the registration requirements also vary by jurisdiction. For example, in North Carolina, an offender currently faces only a low-level felony for failing to register. However, under SORNA, jurisdictions are required to provide a criminal penalty that includes a maximum term of imprisonment greater than one year.

4. The registration and publication requirements mandated create a concern because every jurisdiction has laws in place detailing how offenders are to register and to what extent the registration is to be made public. For example, in New Jersey, registered sex offenders may petition court to terminate their registration and in Massachusetts, the law requires a hearing to determine whether the individual must register. In Hawaii, there is a constitutional right for notice and an opportunity to be heard prior to public notice of sex offender status, and in Iowa, an offender is entitled to an evidentiary hearing as part of the risk assessment process. SORNA would not only conflict with the constitutional provisions mentioned here but numerous others. The proposed guidelines make no attempt to account for the vast differences in registration and publication requirements in the states, and do not “guide” states in how best to reconcile their differences with the required federal scheme.

5. According to SORNA, another piece of information that must be collected is information detailing any foreign convictions if the information was not obtained with sufficient safeguards for fundamental fairness and due process for the accused. The federal government is the entity best equipped to make this determination. However, states are the ones expected to shoulder the burden of determining the validity of foreign convictions which is clearly out of the realm of their expertise. How can the Department of Justice expect states to become experts in analyzing the due process standards of other nations?

6. SORNA also does not require registration for juveniles adjudicated delinquent for all sex offenses for which an adult sex offender would be required to register, but rather requires registration only for a defined class of older juveniles who are adjudicated delinquent for committing particularly serious sexually assaultive crimes or child molestation offenses. This provision would create a problem for the states as many jurisdictions have statutes in place that mandate the same treatment for juveniles as they do for adults and states would have to substantially alter their statutes in order to comply. The guidelines fail to adequately address how states should comply with this mandate when their state laws authorize similar treatment for juvenile and adult offenders. For example, the provision will have a great impact on how Ohio manages and safely supports adjudicated juvenile sex offenders in its communities. In Ohio, under their proposed new child welfare laws, the addresses, locations and other information of foster homes are not public record. Ohio’s implementation of the SORNA provisions will require that the juveniles’ information must be placed on the state and national registry if the juvenile offender goes back in to the child welfare system. Requiring that this information is accessible to the public will create substantial confidentiality and constitutional concerns as Ohio has privacy laws in place which would be preempted by a national registry mandating what states must make available to the public.

7. State-tribal relations issues are also raised in the guidelines, without adequate clarity. The Indian Tribes will be affected by SORNA as they must either comply with its sex offender registration by July 27, 2007 and notifications or delegate that function to the state in which it their tribe located. This would create an unfair burden on the Indian tribes by requiring them to either fully implement and fund a federal requirement in which they do not have the funds or expertise to implement, or delegate their sovereignty to the state in which they reside. Upon delegation, the state would become fully responsible for carrying out the SORNA notification and registration functions and states would have the permission, and obligation, to oversee tribal court rulings and to perform full law enforcement functions on tribal lands (for purposes of this Act.) Not only will this shift to the states the long-standing law enforcement role of the federal government on tribal lands, but it promises to be a large unfunded mandate as well.

The Act says that if the tribes do not make one of the above choices or do not comply, the state becomes responsible. The guidelines are unclear as to how adding such responsibility to states affects state compliance (or non-compliance and loss of Byrne Grant funding, as the case may be) and funding. The burden on the states in this situation would be great. Investigative caseloads could increase markedly and the costs and complications of developing and integrating the tribal electronic tracking system into the state system promises to be considerable. Even for those states not required to accept the delegation of enforcement authority, the tribes can – and most likely will – elect to join the states registries rather than create their own. Under the requirements of the Act, this means states will have to integrate into their registries the tribal offenders’ physical descriptions, current photographs, criminal histories, fingerprints, palm prints, and DNA sample. In addition, many tribal lands transverse several state borders. How do the states determine which jurisdiction will be responsible for the enforcement functions on tribal lands? The challenges will be many and will, of necessity, be borne at least in part by the states.

8. The requirement regarding digitized information, the immediate transmittal of information to specified individuals and entities and the requirement regarding the search capabilities of sex offender web sites will also substantially burden the states in their attempt to comply. The National Conference of State Legislatures is concerned that requiring the implementation of this provision necessitates adequate funding for which no money has been given. States cannot be expected to revamp their current systems to comply with a national registry if they do not have the additional funds in place to help pay for the costs of compliance. In addition, if the states do not comply with this requirement, they will be forced to use substandard equipment or possible use their Byrne Grant funds which would reduce the funding for other vital state programs.

9. NCSL also opposes the requirement in the act and the lack of clarification in the guidelines regarding the provision that sex offenders released from federal or military custody become the responsibility of states to which they are released for purposes of all of the onerous sex offender registration requirements under the Adam Walsh Act.

10. Further, the issues created by mandating the sealing of criminal records are raised in the act, indicating that an expungement of a criminal record under state law does not exclude the individual from the requirements of the Adam Walsh Act. However, the guidelines fail to address how a crime record sealed by a state at the same time is to be made available for the public, including on the internet and as part of the national sex offender registry.

The National Conference of State Legislatures believes that Congress must allow the states flexibility to shape public policy. Creative solutions to public problems can be achieved more readily when state laws are accorded due respect. State legislators believe that state laws should never be preempted without substantial justification. Preemption may be warranted in specific instances when it is clearly based upon provisions of the U.S. Constitution authorizing such preemption and only when it is clearly shown (1) that the exercise of authority in a particular area by individual states has resulted in widespread and serious conflicts imposing a severe burden on national economic activity or other national goals; (2) that solving the problem is not merely desirable, but necessary to achieve a compelling national objective; and (3) that preemption of state laws is the only reasonable means of correcting the problem.

The exercise of authority by the individual states in determining the configurations of their independent registries would not impose a severe burden on national economic activity or goals. Further, requiring all jurisdictions to comply with the national registry standard is not necessary to achieve the national objective. The important public safety purposes for which the Act is trying to achieve could still be met by allowing states more flexibility in the design of their individual registries and thus the preemption of state laws is not the only reasonable means of correcting this problem. Thus, preemption is not warranted and the state laws should be accorded due respect.

The SMART office has a duty and obligation to discuss the implementation with every impacted jurisdiction through a notice and consultation process in which all parties are equal partners. In addition, each affected jurisdiction should be provided additional notices and assurances that they have complied and the process by which compliance is determined should be made public so the jurisdiction will be able to accurately access whether they have substantially implemented SORNA. To reiterate, the process should be a give and take and not a decision made in a bureaucratic vacuum without the knowledge and expertise of those who would be impacted the most by such an obtrusive and overtly preemptive requirement. If you have any questions or require additional information, please contact NCSL staff Susan Parnas Frederick(202)624-3566, susan.frederick@ncsl.org. Thank you.

Sincerely,

Carl Tubbesing
Deputy Executive Director
NCSL