Sex Offender Law:  Down to the Wire: June 2011

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State Legislatures graphic for June article

As the deadline approaches to comply with federal rules on sex offenders, some states are saying “no thanks.”

By Donna Lyons

While some states scramble to comply with portions of the federal sex offender registration law by its July deadline, others think the law’s rewards are just not worth the costs.

The new requirements are extensive. The Sex Offender Registration and Notification Act (SORNA)—a portion of the Adam Walsh Act that passed in 2006—expands the categories of offenders that states and tribes must register to include juveniles who commit certain serious crimes and some adult offenders convicted before the law was enacted. Some consider the amount and kind of information that states must now collect, regularly verify and share as onerous.

The legislation sets requirements for which offenses and offenders must be classified, lengthens how long they must stay registered, adds a requirement for periodic appearances by offenders for verification, and sets the penalties states must impose on those who fail to register. States that don’t meet what the U.S. Department of Justice terms “substantial implementation” will lose 10 percent of their Byrne law enforcement assistance grants. 

Some policymakers, however, question the value of all these requirements. State sex offender registries already contain names, addresses, photos, vehicle, job and other identifying information on hundreds of thousands of convicted sex offenders. If public safety is the goal of maintaining all these public registries, it’s not clear if all the information makes communities safer or if the most dangerous predators become lost among a growing swell of electronic information. 

State lawmakers have enacted some 250 bills related to SORNA since 2007, but to date only Delaware, Florida, Ohio, South Dakota and two tribes have met “substanial implementation” standards. Although it’s likely more states will comply by the July deadline, lawmakers in other states have studied SORNA and believe their current sex offender registration policies and processes best address the needs in their states.

“Our system has been developed, refined and reworked over the course of more than a decade and a half,” Representative Pat Colloton of Kansas told members of a U.S. House subcommittee in February. “Legislative committees like mine have worked exhaustively with researchers, public safety professionals and community members to make our laws respond to the specific and unique needs of Kansas.”
Colloton also points out that states have not really had several years to implement the SORNA rules because final, supplemental federal guidelines were not issued until earlier this year.

State Systems Are Better

A recent study by the Texas Senate Criminal Justice Committee found the loss of 10 percent of federal justice funding is an inadequate incentive to comply with SORNA. State officials estimated it would cost $38.7 million to comply, but the state would lose only about $1.4 million in Byrne funds if it refused. The costs would come from adding more offenders to the registry, some for longer periods of time, and needing more law enforcement personnel to verify information at required, frequent intervals. 

Even so, the Senate recommendation in Texas not to comply was based on public safety, not cost. Senator John Whitmire, chairman of the Criminal Justice Committee, says the federal mandates are no better than Texas’ laws that restrict parole and commit or supervise offenders based on their dangerousness.  

“No one needs to show Texas the way to deal with sex offenders,” he says.

Texas is one of the states that classify sex offenders and set their registration requirements based on a risk assessment. SORNA, instead, has states using a three-tier classification system based solely upon the offense. Experts in treating sex offenders expressed their concerns with categorizing sex offenders only by their offense. A scientific risk assessment, they argue, would more likely lead to both low- and high-risk offenders being properly categorized. They said work in Texas to narrow the sex offender registry to those who are most likely to be dangerous would be undone by SORNA’s rules. 
Officials in the federal Sex Offender Monitoring, Apprehending, Registering and Tracking (SMART) office in the Justice Department told a U.S. House Judiciary subcommittee in February that SORNA’s tiered classification system is a barrier for at least 11 states.

One of those states is Kansas. Lawmakers are working to reclassify crimes, change notification practices, and improve the ability for electronic information sharing among law enforcement and other agencies.

Federally provided software—called SORT—is helping 105 counties in Kansas enter and update offender information. State officials also say the Justice Department’s national exchange portal is a valuable tool for exchanging information state-to-state about sex offenders. 

Even so, Kansas’ Colloton says she can’t be sure these “Herculean efforts” will meet compliance requirements. 

Juvenile Registration

The most significant barrier, according to SMART officials, is the juvenile registration requirements. Juveniles involved in serious sex offenses must register and their information must be shared with the national database, law enforcement, and in some circumstances with supervision agencies and registration authorities in other jurisdictions.

Many states exclude juveniles from registration requirements, particularly information that is made public, or allow a judge to decide whether a juvenile must register. Not only do SORNA provisions conflict with some state laws about confidentiality of juvenile records, they prompt concerns about whether registration requirements are in sync with the goals of rehabilitating juveniles.

Supplemental guidelines released in 2010 and made final by the SMART office in early 2011 provided states with discretion to exempt juvenile delinquency adjudications from public website postings and certain other disclosures.

Senator Joni Cutler of South Dakota, one of the four states to have complied so far with SORNA, said the Legislature had to make some difficult decisions around juvenile issues.

“Juvenile matters were the most sensitive,” she says, “and we had to balance the opportunity for rehabilitation with responsibility and culpability of offenders, including some juveniles, who commit certain forcible crimes.”

Lawmakers agreed to a petition process that allows some offenders to be removed from the registry after 10 years. 

Cutler said the South Dakota attorney general’s office coordinated SORNA work across the state and with federal officials.

“From the start,” she says, “they approached this as: ‘We are going to find a way to comply.’  ” 

Money's An Issue, Too 

Reviews in other states also have found the benefits of the federal approach don’t outweigh the drawbacks. California’s Sex Offender Management Board advised the state not to comply. Created by the Legislature, the board was charged with guiding policymakers on the best ways to manage adult sex offenders living in the community. In a 2009 report, it found that existing state policies related to risk assessment, juvenile registration and monitoring of sex offenders were more consistent with proven, effective practices and more likely to result in greater public safety. The board also cited an assessment by the state attorney general’s office that the costs to implement SORNA provisions far exceeded the penalty of reduced justice assistance funds. 

The California report also criticized the inadequate federal funding accompanying the requirements. The Justice Department’s SMART office says that to date only about $39 million has been given to 43 states for SORNA compliance.

While Kansas strives to meet the federal requirements, Colloton sees a disturbing disconnect in withholding funds that support services for victims of domestic violence and sexual assaults and help community corrections agencies collaborate. 

“It is troubling that states that don’t have the resources to accommodate what is a tremendously costly unfunded mandate will have to watch as the very services our criminal justice systems rely upon are cut even further,” she says.

“Particularly in this economy, no state can afford a significant new unfunded mandate to change public safety approaches already undertaken.”

Donna Lyons is the director of NCSL's Criminal Justice program.

Clash on Capitol Hill, Too 

The disagreement among states over whether to comply with the Sex Offender Registration and Notification Act (SORNA) or face a loss of some federal money is reflected in Congress.

At a hearing in February of the House Subcommittee on Crime, Terrorism, and Homeland Security to review the Adam Walsh Act, of which SORNA is a part, Chair James Sensenbrenner, a key backer of  SORNA, expressed his displeasure with the vast majority of states that have not complied with the law so far.

Despite that, he and other subcommittee members said there might be room for change, including scaling the amount of federal money states will lose based on the degree to which they’ve complied with the law. If a state, for example, is 80 percent compliant with the law’s requirements, it wouldn’t incur the entire 10 percent reduction in Byrne law enforcement assistance grants.

U.S. Representative Bobby Scott  offered a different perspective. SORNA is “unworkable in the vast majority of jurisdictions,” he said, “and even compliant states are having trouble with implementation.”
The obstacles include the cost to states to comply and issues over handling juvenile offenders, classification of offenders, retroactivity and tribal sovereignty.

A representative of the Sex Offender Monitoring, Apprehending, Registering and Tracking  office refused to acknowledge any hurdles and insisted the issues Scott mentioned were only state “opposition to SORNA requirements.”

Subcommittee members discussed whether to extend the SORNA compliance deadline for two more years—since states have not had the full time intended by Congress to comply because it took so long for guidelines to be issued—or whether that would only give states an excuse to ignore the law entirely. Committee members did not make a decision on an extension.

Acknowledging studies that show juveniles respond better to treatment than incarceration, members questioned the benefit of requiring them to remain on a registry for a long time, concerned that may do more harm than good. Some members also argued SORNA does not provide enough flexibility for states that use risk assessment as a means of classifying offenders rather than the tier approach favored under SORNA.
—Susan Parnas Frederick, NCSL