The OffenderWatch Initiative is actively involved in amending legislation to support more proactive and broad based community notification. Law enforcement agencies are required by law to make sex offender registration available for public record but do not have to actively notify the public. The Wetterling Act and Megan's Law do not require active community notification, only its passive release, meaning that sex offender information is only available to those who register to receive notification. Several states have extended the federal minimum passive release requirement to mandate some form of active community notification. OWI supports legislation that provides online public access to sex offender registrations, as well as proactively notifying the community through mail, media, and educational programs of where the sex offenders are living and working.
We Can Provide Example Legislation
The following is recommended by OffenderWatch Initiative and Erin Rosen to legislators and others interested in changes and improvements to state sex offender laws that help achieve consistency, reliability and provide a funding source for ongoing sex offender registration and management. These provisions support agencies to achieve compliance with laws such as the Jessica Lunsford Act, Adam Walsh Act and others.
Background of The Adam Walsh Child Protection and Safety Act of 2006
On July 27, 2006, President Bush signed Public Law 109-248, also known as the Adam Walsh Child Protection and Safety Act of 2006. The Adam Walsh Act (AWA) requires states to modify their sex offender registration state statutes within three years (2009) to comply with the federal Act or suffer a ten percent reduction of the state’s Justice Assistance Grant (JAG). The AWA made provisions for incentives to states that amend their statutes in a timely manner: 10% bonus of JAG funds is awarded to states that implemented the provisions within one year of enactment (July 2007) and 5% bonus is given for implementation within two years (July 2008).
The goal of the AWA is to bring consistency among the states’ sex offender registries to prevent offenders from falling through the cracks. According to a March 2007 report by the National Center for Missing and Exploited Children, of the estimated 673,989 registered sex offenders, there are over 100,000 who are missing or non-compliant.
Since the passage of the AWA, many states have attempted to comply with the new federal requirements for sex offender registration and notification; however, as of May 2009 none have achieved “substantial compliance”, as determined by the SMART Office within the US Department of Justice. Over the past three years since the enactment of AWA, the SMART Office has administered $16.1 million in grant funding to assist jurisdictions with implementation, but has not awarded even ONE jurisdiction compliance based on the SMART Offices guidelines.
With the July 2009 deadline looming, concern about the AWA compliance grew among legislators. On March 10, 2009, a Senate Judiciary subcommittee hearing was held to air-out some of the concerns and discuss resolutions. The former director of the SMART Office, Laura Rogers, testified that she believed that based on the current guidelines that every jurisdiction would reach compliance by July 2011, the ultimate deadline. This deadline is based on the additional two one-year extensions that each jurisdiction could apply for if necessary. Of the eight people that testified before this subcommittee, Ms. Rogers was the only person who shared that opinion.
With pressure from the legislature, recently U.S. Attorney General Holder issued a blanket one year extension, until July 2010, for all jurisdictions to come into compliance with AWA- thereby extending the ultimate deadline to 2012.
We at The OffenderWatch® Initiative believe that the extension of time granted by General Holder is not a complete resolution to the compliance problem.
There are a number of issues that are clear obstacles for most of the jurisdictions to achieve compliance. The first is the “strict compliance” standard used by the SMART Office, rather than the “substantially implement” standard set forth in section 125 of the AWA. In their Final Guidelines issued July 1, 2008, the SMART Office has set the standard too high for jurisdictions to achieve compliance. The SMART Office has indicated that to be considered “substantially implemented” for the provisions of the AWA, jurisdictions must meet ALL of the minimum criteria set forth in the Guidelines. This is not substantial compliance, but strict compliance. As previously stated several jurisdictions attempted to comply under the “substantial compliance” standard to qualify for the 10%/5% bonus money. Unfortunately these jurisdictions were left without any opportunity to challenge that standard because of the delinquency of the issuance of the Final Guidelines by the SMART Office.
Another prevailing issue is the legislation itself. Three specific areas have been deemed objectionable by jurisdictions: 1) retroactivity, 2) juveniles, and 3) offense-based classification.
Under the AWA, the US Attorney General was given authority to determine the retroactive application of the AWA to sex-offenders. In February 2007, 28 CFR72.3, was enacted which made the provisions of the AWA retroactive and provided two examples of retroactivity. Both of those examples, the offenders were convicted of a sex offense and released from prison with an existing duty to register. Neither of these examples presented much of a problem. The issue arose in the Final Guidelines, where for the first time, jurisdictions were instructed to register all sex offenders, who re-enter the criminal justice system regardless of when they were convicted, are now referred to as “super retroactivity”. An example of “super-retroactivity”: An offender convicted of Rape in 1974, serves 10-year prison sentence and successfully completes parole by 1989. In 2008, that same offender is convicted of felony drug trafficking. Under the super-retroactivity requirement, this offender now would be classified as a Tier III offender, with a lifetime duty to register.
The number one objection to this would be the Constitutionality of imposing a registration requirement retrospectively. At the time the offender was released from prison and completed his parole, there was no duty to register as a sex offender. Requiring registration when he re-enters for a non-sex offense is over-reaching. Obviously, had the offender re-entered the criminal justice system for a sex offense, the Court could and should consider the prior conviction in not only sentencing but in his registration requirements as well. Secondly, this scenario was not detailed in 28 CFR 72.3 when it was published for public comment, nor does it appear in the final rule. This “super-retroactivity” is a creation of the SMART Office in their Final Guidelines.
Serious objections and concerns have been raised as to broad application of the public registration requirements for juvenile sex offenders. The Final Guidelines limited the application of the AWA registration for juveniles 14 or older. These juveniles who are adjudicated for forcible sexual conduct/contact or where the victim was impaired with drugs/alcohol to facilitate the sexual conduct/contact, for several jurisdictions, this is still a significant divergence from their current practices. Many jurisdictions do not register juvenile sex offenders and those that do require registration do not post the juvenile’s registration information on their public websites. Some of the main concerns posed by juvenile advocates are that: 1) Juvenile sex offenders are more amenable to treatment and have significantly lower recidivism rates, 2) Juvenile court systems are different for a reason, predominately because juveniles are not fully aware of the consequences of their actions, 3) Exposure of the juvenile’s registration information on public website would subject them to considerable harassment and could possibly make them susceptible to older sexual predators.
- Conversion to “offense based classification”
Many jurisdictions have successfully instituted risk-based assessments to determine the necessary sex offender classification, which determines the frequency and duration of the offenders’ duty to register. The AWA requires these jurisdictions to essentially abandon their successful sex offender classification and management programs in order to convert to the offense-based tier classification set forth in the AWA. These jurisdictions successful programs were ignored in the drafting of the AWA. As currently written there is only one provision that allows jurisdictions to reduce an offender’s registration requirements. It is the completion of a certified sex offender treatment program and maintaining a clean record. This provision, however, is only made available to Tier I Adults and Tier III juveniles, with no explanation as to why other categories of offenders are not eligible. This is inconsistent, since classification is not based on risk and apparently eligibility is based on an unsubstantiated belief that a Tier I adult offender and a Tier III Juvenile offense are worthy of this reduction.
The first proposed solution would mandate that the SMART Office revise their “strict compliance” standard and adopt a more flexible “substantial compliance” standard.
The second proposed solution would propose legislation to amend AWA to simplify the process. The AWA and the Final Guidelines put too much emphasis on how the offenses and offenders are tiered rather than focusing on tracking the offenders themselves. The goal of better tracking sex offenders can be accomplished without creating the major obstacles that the AWA created in retroactivity, juveniles and offense-based classification.
The amended legislation would keep a 3 tier classification system, with Tier I requiring 15 years, Tier II 25 years and Tier III Life, including an appropriate list of offenses coinciding with the tier classification levels. Classification into a Tier would also need to be based upon the offense of conviction. Jurisdictions would be free to use either offense-based or risk-based classification into one of the three tiers. Once the offender is classified into a tier, the tier classification follows the offender wherever he may live or work. This tier level would then apply across jurisdictional lines regardless of what the receiving jurisdictions’ law might be had he been convicted in that jurisdiction. As it stands now under the AWA, the offender’s tier classification could vary depending on how the receiving jurisdiction classifies the offense into their tier system. Currently jurisdictions are free to classify offenses into higher or lower tiers which allows for inconsistency between neighboring jurisdictions. The jurisdictions would be required to recognize the tier classification of the original jurisdiction. This would help eliminate the opportunity for offenders to benefit from moving from a restrictive jurisdiction to one less restrictive. For example an offender could move from one county to another or one state to another based on that jurisdictions tier classification.
In regards to super-retroactive application to offenders and juveniles, this should be left to the individual jurisdictions to decide. Once classified, the other jurisdiction would recognize the duty to register the offender or juvenile. An option to not post a juvenile’s information on the public-website or similar limitations should be considered because registration is key to tracking the juveniles, not necessarily posting on a public website.
There is a clear need to better track sex offenders, as many have fallen off the radar due to inconsistencies among varying jurisdictional requirements. The AWA has not accomplished what the initial intent of the law was and with the expenditure of millions of dollars in grant funding the SMART Office has still not awarded any jurisdictions AWA compliancy. Our proposed solutions would not only achieve the goal of the AWA, but it would appease the concerns raised by many jurisdictions.
Sex Offender Accountability Act
What is the Sex Offender Accountability Act? It is an initiative to provide a funding source for States and local Law Enforcement Agencies to support and enforce current and future sex offender legislation regarding registration, management, and community notification.
Current Sex Offender Legislation
Since the enactment of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act in 1994, all states, the District of Columbia and two territories currently have some form of a sex offender registration and notification program. On July 27, 2006, President Bush signed into law the Adam Walsh Child Protection and Safety Act which dramatically enhanced the effectiveness of current programs by establishing a new comprehensive set of minimum standards for sex offender registration and notification.
Prior to 1994 few states required convicted sex offenders to register their addresses with local law enforcement. As recognition of the severity of this problem grew, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act, 42 U.S.C. §§14071, et seq. ("Wetterling Act"). This requires state implementation of a sex-offender registration program or a 10 percent forfeiture of federal funds for state and local law enforcement under the Byrne Grant Program of the U.S. Department of Justice. Today, all fifty states and Washington, D.C. have sex offender registries.
The realization that registration alone was not enough came after the tragic murder of 7-year-old Megan Kanka by a released sex offender living on her street. The public outcry created a call for programs to provide the public with information regarding released sex offenders. In 1996 Congress passed a federal law mandating state community notification programs. Megan's Law, section (e) of the Wetterling Act, requires all states to conduct community notification but does not set out specific forms and methods, other than requiring the creation of internet sites containing state sex-offender information. Beyond that requirement, states are given broad discretion in creating their own policies.
The Jessica Lunsford Act revises sexual predator criteria; requires twice yearly re-registration by sexual predators; provides criminal offenses for failing to re-register, failing to respond to address verification, failing to report or providing false information about sexual predators, and harboring or concealing a sexual predator; and requires electronic monitoring for certain offenders placed on conditional release.
Despite states' implementation of the Jacob Wetterling Act, the increased mobility of our society has led to "lost" sex offenders. The "lost" are those who fail to comply with registration duties yet remain undetected due to the inconsistencies among state laws, coupled with the burden faced by authorities to keep track of the increasing number of offenders. The U.S. Congress recognized this problem and acted with the Adam Walsh Child Protection and Safety Act. This sweeping new law mandates specific registration requirements for sex offenders in all states. Once all the states come into compliance with the Adam Walsh Act (July 27, 2009 is the deadline), the disparities among the state registration laws will be eliminated and sex offenders will no longer be able to slip through the cracks in the system. In addition, the Adam Walsh Act mandates that specified information about sex offenders must be released to the public. Each state must create a publicly-accessible and searchable website that provides consistent information about the offenders in its registry. This will create a better tool for the public in their efforts to protect themselves from sex offenders living in their communities.
There are currently 673,989 registered sex offenders in the United States. Sex offenders pose an enormous challenge for policy makers: they evoke unparalleled fear among constituents; their offenses are associated with a great risk of psychological harm; and most of their victims are children and youth. As policy makers address the issue of sex offenders, they are confronted with some basic realities:
- Over 90% of the public feel that tough punishment for sex offenders especially those involving children should be a top national priority for state and federal policymakers.
- Most sex offenders are not in prison, and those who are tend to serve limited sentences
- Most sex offenders are largely unknown to people in the community
- Sex offenders have a high risk of re-offending
- Registering and monitoring sex offenders is very costly to the responsible local law enforcement agency and they rarely receive funding from the state or federal government to properly enforce the laws.
Solution-What the Sex Offender Accountability Act Accomplishes
While community supervision and oversight is widely recognized as essential, the system for providing such supervision is overwhelmed. This Act is intended to inform legislators and other interested parties of The OffenderWatch® Foundation’s recommendations regarding changes and improvements to state sex offender laws that help achieve consistency, reliability and provide a funding source for ongoing sex offender registration, management, and community notification. These provisions can help agencies achieve compliance with federal laws such as the Adam Walsh Act as well as provide funding sources for Sex Offender Registration and Management, GPS monitoring units and possibly DNA testing for sex offenders:
I. Establish the $5.00 Sex Offender Technology & Registration Fund: This provision provides an on-going source of funding state registries and software for local agencies to register and manage offenders in their jurisdictions. Sex offenders represent a cost to the state and taxpayers for at least fifteen years and in many cases for the life of the offender. Local law enforcement lacks the necessary tools to maintain consistent registration and reporting practices and therefore many offenders fall through the “supervision and registration cracks.”
As established by the Adam Walsh Act all states are required to have a sex offender state registry available to citizens on the World Wide Web. Most states employ a Sex Offender Web Page to meet community demand for information but at whose expense?
- The $5 Bill establishes a Sex Offender Technology & Registration Fund.
- The fund will accumulate state monies by requiring ALL offenders under Probation and Parole supervision to pay a $5.00 per month or $60.00 annually supervision fee for the time period they are required to report to the Dept of Probation and Parole.
- These fees are to be allocated first toward both the provision of a state registry to house sex offender data at the state level and to provide a web-based registry, and ALSO to provide local law enforcement agencies with a software tool to enable the registration, electronic updates to the state, address verification, continuing compliance management and community notification of sex offenders.
- Local law enforcement agencies will provide free e-mail sex offender notification to citizens who register important addresses, thereby promoting the spirit of the law.
II. Establish the $60.00 Sex Offender Supervision and Registration Fee: Registering and monitoring sex offenders and verifying their addresses on a periodic basis is a very costly expense for the local law enforcement agency in dollars (salary, overtime, fuel, etc…) as well as man power/hours. The $60.00 annual fee establishes a Sex Offender Supervision and Registration Fee · At the conclusion of state sponsored supervision convicted sex offenders shall be required to pay an annual supervision and registration fee of $60 to the local law enforcement agency in the county where they reside.
- The $60.00 annual supervision and registration fee will help offset costs incurred with registration and verification for the local law enforcement agency responsible for registering and verifying the sex offenders.
- The $60.00 fee shall be collected 10 days prior to their initial registration anniversary date. The sex offenders shall be required to pay the annual registration fee for so long as they are required to register as defined by their state’s statute.
III. Amend Sex Offender Registration to include: When registering with the local law enforcement agency the offender must produce:
- Two proofs of valid address
- Registration of vehicles information to include but not limited to, make, model, year and color.
- Money order or cashier check of $60 for the supervision fee and estimated dollar amount for the “Community Notification” mailings
- Signed statement that the information provided is accurate
- Failure to provide and meet any obligation is a felony.
- Those offenders representing “indigent” with an inability to make financial payment are to be classified so and shall conduct 100 hours of community service as defined and specified by the local law enforcement agency office.
Failure to register results in these actions:
- For a first offense, the sex offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days, or fined not more than five hundred dollars, or both;
- For a second offense, the sex offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years, or fined not more than one thousand dollars, or both;
- For a third or subsequent offense, the sex offender is guilty of a felony and, upon conviction, must be imprisoned for not more than five years, or fined not more than five thousand dollars, or both.
A local government may not enact an ordinance that contains penalties that exceed or are less lenient than the penalties contained in this section.
IV. Amend Community Notification statutes to require community notification for all offenders:
- All registering Sex Offenders shall conduct a “Community Notification” mailing, at their expense within the first 21 days of registration, and at least once a year every year on their anniversary.
- The sheriff of the county where the offender is registering is responsible for assuring the notification mailing is completed.
- Failure to conform to community notification shall result in a violation of the law and punishable incarceration or a fine not to exceed $1,000.
- “Community Notification” mailings shall state the offenders name, address, physical description, photo and nature of conviction and date of release from incarceration or date of supervision
Mailings shall be sent to at least every residence within a .3 mile radius in an urban area and a 1 mile radius in a rural area:
- Notification to be specified as delivered to residents by US mail with defined rural and urban parameters
Included in the 1 mile radius are mailings to:
- Licensed day care and pre-school center operators
- Elementary, Middle, and High School Principals
After the initial community notification, the following provisions apply:
- High risk predators shall conduct mailings, at their expense annually for life or for as long as they are required to register and every time the offender moves
- Medium risk offenders shall conduct mailings, at their expense annually for 25 years or for as long as they are required to register.
- Low risk offenders shall conduct mailings, at their expense annually for 15 years or for as long as they are required to register.