The AWA is the controversial federal sex offender law intended to standardize sex offender laws across the country. The AWA is an attempt to pass minimum national standards and continuity in sex offender legislation. Every state must adopt the AWA or take a 10% cut in Federal law enforcement grants. As states debate whether or not to implement this act, the states that have thus far have brought up a number of challenges.
ILLINOIS LAWMAKERS ARE CONSIDERING LEGISLATION THAT WILL COST MILLIONS AND DO NOTHING TO INCREASE PUBLIC SAFETY! URGE YOUR OFFICIALS TO VOTE "NO" ON SB3359. THE FACTS DO NOT SUPPORT THIS BILL!
This year, Illinois is slashing the budgets of schools, prisons, police, human services, and even Medicaid. The House passed what has been described as a "bare bones budget," making "painful, painful" decisions. A bill, SB3359, has been passed in the Senate that will significantly increase the financial burden of the state by attempting to comply with an unfunded federal mandate that accomplishes nothing, but adds millions of dollars to the costs of the Illinois sex offender registration system.
The primary argument for introducing and defending this bill is that Illinois would lose 10% of its annual Byrne Grant allotment if it fails to comply with the Federal Adam Walsh Act, passed by Congress in 2006 but still not implemented in a majority of states. New information, however, shows that Illinois does not have to apply the massive overhaul included in SB3359 in order to retain its Byrne Grant allotment. The state of New York rejected the requirements of the Adam Walsh Act mandate, and was nonetheless able to retain its share of the grant simply by showing what it had done. One Senator, in opposing the bill, argued that this bill is not necessary and will cost the state far more to implement and defend in court than any money the state might lose for not complying. Simply put, he stated, ,"If it ain’t broke, don’t fix it!" Illinois laws are stricter than those of most other states, and would certainly qualify as being in "substantial compliance" without the added burden of SB3359. With a 93% compliance rate, Illinois is already doing a superior job with managing the state's registered sex offenders. Here are a few facts about SB3359:
The Justice Policy Institutes estimates it will cost Illinois over $20 million just to implement SB3359
The Illinois Department of Corrections stated that the costs of compliance would be "substantial as more sex offender registration violations occur"
Ohio spent many millions more defending over 7,000 lawsuits, only to have the law tossed out by the State’s Supreme Court, who called it "punishment" and "unconstitutional"
Over 10 years of research has consistently shown that stricter registration laws DO NOTHING to protect society or reduce recidivism
Many states, including New York, California, and Texas, have opted out of complying with the law because the costs far outweigh the benefits
The bill passed the Senate as a result of an impassioned speech drawing on inaccurate emotional rhetoric
Some states, like Missouri, are already re-thinking their decision to comply with the Adam Walsh Act and are in the process of repealing their laws
Illinois simply cannot afford to pass this expensive, ineffective, politically motivated bill
Don’t be fooled by the emotional rhetoric in support of this bill. Illinois Voices can provide you with a wealth of information that can help you make an informed and fiscally responsible decision on SB3359.
A summary of fact-based research regarding the AWA [click here].
The AWA places severe and unfair registration requirements and punishments on sex offenders and requires offenders to register without distinguishing between violent and non-violent offenders or evaluating the likelihood of recidivism (committing the crime again).
Non-violent offenders (including juveniles) that are considered "sex offenders" include the following:
Teen consensual sex (when there is a 2, 3 or 4 year age difference) (at least twenty-nine states require registration for teen consensual sex);
Children as young as 9 who are accused of sexual harassment in schools for arguably harmless conduct, including "playing doctor;"
Urinating in public (at least thirteen states require registration for public urination);
Adult prostitution (adults who sell sex to other adults) (at least five states require registration for prostitution-related offenses);
Exposing genitals in public (at least thirty-two states require registration for exposing themselves in public);
Teens posting nude or semi-nude photos of themselves on MySpace or other social networking sites;
Teens emailing or texting nude or partially nude photos of themselves or others.
Increasingly rigorous and over-inclusive requirements for sex offenders are almost universally accepted and easy for legislators and politicians to support because such measures are popular among the general public. As Congress passes act after act cracking down on sex offenders, experts and officials should be wondering whether the requirements of those acts even work to achieve the goals of legislators. The most recent act, the AWA, poses its own challenges as Congress again expands punishments and requirements of sex offenders, and brands many non-violent offenders who are unlikely to recidivate and pose little threat to public safety.
There is little evidence suggesting that laws have actually reduced sex offense threats against children. Sex offender laws are based on preventing the horrific crimes that inspired them – but the abduction, rape, and murder of a child by a stranger who is a previously convicted sex offender is a rare event. The laws offer scant protection for children from the serious risk of sexual abuse that they face from family members or acquaintances. Indeed, people children know and trust are responsible for over 90 percent of sex crimes against them.
Furthermore, there is no evidence that restricting where former offenders live and work protects children from sexual violence. "Indeed, the limited research to date suggests the contrary: a child molester who does offend again is as likely to victimize a child found far from his home as he is one who lives or plays nearby. Politicians didn’t do their homework before enacting these sex offender laws. Instead they have perpetuated myths about sex offenders and failed to deal with the complex realities of sexual violence against children."
Unfortunately, overworked and under-funded law enforcement agencies have problems keeping up with the offenders who are properly registering and keeping their information up to date. State and local law enforcement agencies do not have enough officers to verify sex offender addresses or enough funds to hire more officers. In short, law enforcement officials are overwhelmed and as a result, sex offenders slip through the cracks.
The AWA exemplifies this problem in another way, too. Many states already classify sex offenders by their level of dangerousness and risk to the community. The states that do not already classify offenders will soon enough, as such classification is required under the AWA. Sex offender classification should allow law enforcement officials to give high-level offenders more priority. The AWA, however, still requires all offenders to register – even the most low-level offenders must register for at least ten years. Thus, law enforcement officials cannot focus their money, attention, and effort on the most dangerous offenders because the AWA requires the same treatment of all registered offenders.
If the states assessed and differentiated between violent and non-violent offenders, the states could then focus on supervision of the offenders that pose the greatest threat to the public. While law enforcement officials are aware that some offenders are more dangerous, police are still supposed to keep track of all the offenders, no matter their level. The law enforcement officials cannot keep track of all the offenders, which means that many Level 3 sex offenders, the most dangerous offenders, escape the system.
Limited law enforcement resources, however, will allow law enforcement officials to monitor carefully only the most dangerous offenders. As for the remaining majority of sex offenders, upon release from prison, law enforcement officials should authorize treatment and allow the offenders to reintegrate into society. Studies show that treatment reduces sex offender recidivism rates by over fifty percent. Law enforcement officials should allow offenders to rehabilitate, live in communities, and receive job placement assistance if needed. The AWA’s stringent requirements, however, are punitive rather than rehabilitative. Other than sex offenders, no offenders in the criminal justice system face national lifetime registries. Once convicted, even low-level, non-violent sex offenders enter a black hole with little to no hope of return.
For these reasons, the AWA requirements are overlong in duration and overbroad in scope. They call for former offenders to register when these offenders do not have a risk of future dangerousness. Furthermore, while the AWA requirements apply to all convicted sex offenders without regard to their threat to public safety, the requirements are also limitless as to the public’s access to the offenders’ information. Public notification without any sort of risk assessment or treatment of the offenders hinders rather than advances public safety.
A trend in the Illinois system exemplifies this problem. As Illinois residency restrictions allow sex offenders fewer places to live after their release from prison, the offenders are required to stay in prison even after their sentences. The result, therefore, is that the offenders stay in prison through their parole terms. The average parole term for sex offenders is three to five years. When sex offenders serve parole in society, parole officers monitor the offenders to "help ensure the sex offenders register and comply with mandated treatment." In contrast, when sex offenders serve parole in prison, treatment is optional. Law enforcement officials release sex offenders from prison after having served their parole terms, and their transition back into society is unsupervised. Parole agents do not mandate treatment or registry. Currently, approximately 540 sex offenders in Illinois are serving parole in prison. Soon, Illinois law enforcement officials will release these sex offenders; many will fail to register, and the state will not know their location.
Congress intended the AWA’s registration and notification requirements to be non-punitive, regulatory measures. Unfortunately, the requirements of the AWA do not have a rational connection to the non-punitive purpose of offender rehabilitation and public safety. Upon release from prison, the AWA’s requirements lead to tremendous occupational and housing difficulties for offenders. Regardless of their risk to the community, offenders are not free to change jobs or residences. Moreover, the stigma and harassment of offenders stemming from community notification through Internet sex offender registries substantially increases the instability of offenders and increases their rate of recidivism.
False statistics on sex offender recidivism has prompted both politicians and society to believe that more stringent sex offender requirements are necessary to ensure the protection of our society. To gain support for proposed sex offender laws, politicians often cite offender recidivism rates that are as high as eighty to ninety percent. Evidence actually shows, however, that recidivism rates for sex offenders are only around twenty-five percent. In fact, some studies show that as many as ninety-five percent of all new sex offenses are committed by individuals not required to be on any type of registry. Ninety percent of sex offenses against children are by family members or acquaintances. The sexual abuse of a child by a stranger previously convicted of a sex offense, therefore, is a rare event.
Community notification of sex offenders through public Internet registries gives the community a "false sense of security." Non-registered individuals commit ninety-five percent of all sex offenses. Registration requirements, therefore, have the potential to prevent only a very small fraction of future sex offenses.
Community notification allows any individual, corporation, or organization access to sex offender registration information. In many cases, activists discover offenders’ addresses through Internet sex offender registries. Offenders receive threatening mail and phone calls. Even worse, activists burn and vandalize offenders’ homes. Some offenders move and fail to update their registry information and vigilantes mistakenly target innocent homeowners because their addresses appear on the registry.
Furthermore, readily available personal information about former offenders allows neighbors, colleagues, classmates, employers, and others to shun and ostracize the offenders. Offenders cannot find employment and, when they do, employers fire them when the employers discover their employees are former offenders. Homelessness and joblessness not only makes the offenders more difficult for law enforcement to supervise, but also create recidivism and threaten public safety. The stigma and harassment of former offenders diminish the likelihood of a successful transition back into society.
For these reasons, the AWA’s registration and community notification requirements do not have a rational connection to the non-punitive purpose of offender rehabilitation and public safety. Thus, the severity of the AWA’s requirements unduly burden non-violent sex offenders who are unlikely to recidivate but who are included in registries and community notification information.
Click here for information, including the high cost to implement, the cases that were taken to court, the cases that won, news articles, and much more. More information located here.
As this Note suggests, over-inclusive sex offender laws cause harm to both society and offenders. The AWA, the most recent and expansive sex offender law, will only magnify these problems. Politicians and other proponents of these laws continue to emphasize sex offender law enforcement, but are unable to find conclusive evidence that the public gains any safety benefits from the broad laws they are supporting.
The only evidence regarding sex offender laws suggests that they contribute to recidivism, make offenders more difficult to supervise, compromise offender rehabilitation, and financially burden the states. Despite that evidence, it is hard to argue that parents should not have a right to know whether a convicted rapist lives next door. Assuming sex offender laws can produce some public safety benefit, lawmakers should reform the laws to reduce their negative effects without compromising that benefit.
The AWA serves a laudable purpose, but is over-inclusive. The AWA applies to many offenders who are not dangerous, not likely to recidivate, and who committed non-violent crimes. The AWA does not have any safeguards to identify low-level offenders who do not pose a risk to public safety. Law enforcement officials should focus only on those offenders who committed severe offenses and who are likely to recidivate. Unfortunately, too many harmless former offenders fall under the umbrella of registered sex offenders that law enforcement officials are required to monitor. For this reason, the AWA’s requirements drain public resources and unnecessarily deprive offenders of their liberty.
Lawmakers should reform the AWA to allow law enforcement officials to focus on offenders convicted of violent crimes, lower the cost for the states to implement the AWA, and limit the burden on nonviolent offenders. In a specific example, while many states have difficulty keeping track of offenders, Vermont officials report that ninety-seven percent of offenders comply with registration requirements. Sex offender laws in Vermont are a good example of the potential for success achieved by narrowly tailored sex offender laws.
Out of the 24,000 registered sex offenders in Vermont, the state’s online registry only lists 282 of the offenders. The listed offenders include only "sexual predators"—those who committed sexually violent crimes and those determined by an independent court to have a certain degree of propensity to commit sexual crimes. Furthermore, the online registry lists the offenders for only as long as they continue to pose a high risk to the community. Vermont’s laws restrict unlimited disclosure of offender registration information to only those offenders convicted of committing a violent crime or those most likely to recidivate.
Similarly, lawmakers should reform the AWA to require registration for only offenders convicted of violent crimes, or those with a strong compulsion to re-offend. In Vermont, all offenders register, but the state’s online registry lists only one percent of the offenders – the state’s sexually violent offenders. If other states require registration for only violent offenders, a significantly lower number of offenders would require registration.
Narrowing the number of required registering offenders to only violent or compulsive offenders could benefit the states in several ways. First, states would minimize the costs of sex offender management. Law enforcement officials could focus on keeping track of fewer sex offenders, and states could actually spend more money on the offenders specified as violent or compulsive. States could also spend more money to determine whether an offender must register. Then, if an offender must register, states could focus their spending on treating that offender.
Therefore, even if states determined half of the convicted offenders are violent, likely to recidivate, and must register, the costs for managing those offenders (as compared to managing all offenders) would be reduced by half. States could double their expenditures on treating those offenders and their total sex offender expenditures would be less than current sex offender expenditures in many states, without considering the added burden the states will face in implementing the AWA. Cost reductions would come from many different areas, too. For example, law enforcement officials will take fewer photographs, update fewer profiles, track down fewer non-complying offenders, notify fewer neighborhoods, and arrange treatment for fewer offenders. States could implement the reformed AWA and not fear an unfunded mandate.
Furthermore, states would see more success with reformed sex offender laws. Tracking non-violent offenders overwhelms law enforcement officials and does little to protect society. Community notification of all convicted offenders does little to help residents identify the offenders who pose the most risk. Over-inclusive registration requirements burden non-violent offenders and do not support offender treatment and reintegration into society.
If the AWA required only violent offenders likely to recidivate to register, then non-violent offenders could serve their punishment and rehabilitate. Upon release from prison, non-violent offenders could find homes and jobs, and become active and prosperous members of society. Colleagues, neighbors, employers, and others would not shun them because of their past. They would not endure another punishment of uncontrolled disclosure in the online registry after serving their prison sentence. Non-violent offenders would be less likely to feel isolated, disempowered, hopeless, depressed, or forced to engage in other criminal activity. Allowing non-violent offenders to maintain their identity as functional, successful, rehabilitated individuals is beneficial to both the offenders and society as a whole.
There are two factors that the AWA should consider when determining whether a sex offender should be required to register: (1) the nature and severity of the offense committed, and (2) the likelihood of recidivism. A panel of experts should first consider whether the offender committed a violent or severe offense, and only if the offense meets a certain standard in nature or severity should the offender be subject to evaluation of the second factor. In evaluating the second factor, experts should test the offenders to determine their likelihood of committing another sexual offense. Only then, if the experts conclude through individualized recidivism and risk assessment tests that the offender is likely to recidivate, should the offender be required to register.
As mentioned above, assuming that the purpose of the AWA is to protect public safety and create uniformity throughout the states, this reform could help the AWA achieve that goal. Upon the AWA’s reform, law enforcement officials could focus their attention and resources on determining and monitoring the most serious offenders. High-risk offenders represent a very small portion of those required to register under the AWA. Thus, law enforcement officials will adequately supervise the offenders if states are able to spend the bulk of their money monitoring high-risk offenders.
Furthermore, sex offender registration would not give communities a false sense of security. While parents do have a legitimate desire to know whether dangerous sex offenders live next door, law enforcement officials should only notify parents if a high-risk offender lives in the parents’ neighborhood. This notification should come directly from law enforcement officials so the parents can have their questions answered and be educated on what to watch out for and how to protect their children. The threat to public safety would be reduced if sex offender registrants were limited to those who present a real danger to the community.
Under such a system, law enforcement officials would be able to accurately monitor a manageable amount of offenders, and residents would be able to focus their concern on only the dangerous offenders. Furthermore, the liberty interests of non-violent former offenders would be protected because their private information would not be readily accessible to everyone in the country, and they would be given a chance to reintegrate into society.
A reform of the AWA could make it successful. If a sex offender commits a heinous offense, is truly sexually violent, and is likely to recidivate, then the AWA should require the offender to register. However, if the sex offender is not dangerous, not violent, and not likely to recidivate, then the AWA should not brand the offender with a scarlet letter and require registration for life as a sex offender.
The information listed above was taken from the report of Lara Geer Farley (B.A. 2005, Wichita State University; J.D. Candidate 2008, Washburn University School of Law) titled "The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century." For the full report, click here.
Congress’ well-intentioned effort to protect our children by expanding sex offender registries won’t work because registries fail to recognize the complex realities of sexual offending. A large percentage of sex offenses are committed by people known to the victim — including family members. A U.S. Department of Justice study shows that, among youth who were victims of sexual violence, almost half (49 percent) of youth under age six and 42 percent of children ages six to 11 in the study were sexually assaulted by a family member. Overall, the study concluded that 34 percent of youth victims (0–17 years old) were sexually assaulted by a family member and 59 percent were assaulted by acquaintances. In other words, only 7 percent of youth victims in this study were assaulted by strangers. Since most people who commit sex offenses are "first-time offenders," meaning that they have never been convicted of a sex offense, the majority of people committing sex offenses would not already be on the registry. Having a registry can therefore create a false sense of security within families and communities, who might rely on the registry to identify people who may be a threat to their safety. Being on a registry can hinder a person’s ability to access rehabilitative services needed to lead a productive life and engage in appropriate, legal behavior. Registries can impede access to employment, housing and education, which have been shown to be an integral part of the re-entry process and a necessity for young people who are trying to turn their lives around. Instead of funding preventative programs, registries burden our already over-taxed law enforcement resources and create public safety hazards. [Click here for report]
The purpose of this study was to better understand the impact of sex offender registration and notification laws on the family members of registered sex offenders (RSO). An online survey was utilized to collect data from 584 family members across the U.S. Employment problems experienced by the RSO, and subsequent financial hardships, emerged as the most pressing issue identified by family members. The likelihood of housing disruption was correlated with residential restriction laws; larger buffer distances led to increased frequencies of housing crisis. Family members living with an RSO were more likely to experience threats and harassment by neighbors. Children of RSOs reportedly experienced adverse consequences including stigmatization and differential treatment by teachers and classmates. More than half had experienced ridicule, teasing, depression, anxiety, fear, or anger. Unintended consequences can impact family members’ ability to support RSOs in their efforts to avoid recidivism and successfully reintegrate. Implications for criminal justice policy and practice are discussed. [Click here for report]
Sex offense recidivism rates are much lower than commonly believed. The best estimates suggest that 5-14% of known sex offenders will commit a subsequent sex crime within three to six years, and after 15 years, three-quarters will not have recidivated. These recidivism rates are far lower than those for other types of criminals. It is also important to note that as time in the community lengthens, an offender’s likelihood of committing a new sex offense diminishes each year. Some sex offenders will repeat their crimes, however, and therefore public safety can be enhanced when states adopt empirically derived risk assessment schemes to validly and reliably identify high risk individuals. By reserving public disclosure for those who pose the greatest threat, resources can be more efficiently allocated, citizens can be appropriately warned, and reintegration obstacles can be minimized. The stigma of sex offender notification is known to impede successful community re-entry, ironically exacerbating the factors (e.g. housing instability, unemployment) known to correlate with increased criminal recidivism. The offense-based classification system mandated by the Adam Walsh Act is not empirically grounded and is unlikely to correctly classify risk. Public safety is best enhanced when crime prevention policies employ research evidence in their development and implementation. [Click here for report]
Congress must take action and repeal or revise the AWA Amendments. Imposing mandatory pretrial release conditions on all defendants charged with sexual offenses against children is not only unconstitutional, as many courts have found, but also inconsistent with the entire regulatory scheme of bail set forth in the Bail Reform Act (BRA), and very costly. Rather than automatic imposition of pretrial release conditions, Congress should change the language of the AWA Amendments so that, consistent with §3142(e), the defendant can avoid imposition of the AWA Amendments’ now mandatory pretrial release conditions if he can demonstrate they do not need to be applied to him to ensure the public’s safety. This is not only consistent with the BRA, but clearly constitutional and, most importantly, consistent with Congress’ original intent in enacting the AWA Amendments – protecting the public from sexual predators. [Click here for report]
This Note joins this critical examination by exploring the constitutionality of the federal prosecution of sex offenders who traveled in interstate commerce prior to the enactment of the Adam Walsh Act for failure to register as a sex offender pursuant to the Act. In the rush to protect children, has America forsaken its fundamental commitment to the maxim nullum crimen sine lege ("no crime without law")? [Click here for full report]
One of the fundamental features of our government’s structure is that the states have a general police power, while the federal government is limited by its enumerated powers. Over the past fifty years, Congress has vastly expanded the federal criminal law via the Commerce Clause. Because regulating criminal activity is primarily the responsibility of the states, many scholars perceive the rapid expansion of the federal criminal law as clashing with federalism values. The Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act"), once described as "the most comprehensive child crimes and protection bill in our nation’s history," is an example of this conflict.
This Note argues that neither provision is necessary and proper to execute the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses. Furthermore, neither provision is necessary and proper to execute the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster. [click here for full report]
"It’s a couple hundred thousand dollars," said Sen. Kyrsten Sinema, D-District 15. "We've decided that amount we'll lose is less than the amount of money it'll cost to comply. In addition, we feel like complying is not a good idea in some areas, as it actually makes Arizona law worse." [Click here for article]
The California SOMB recommends against complying with AWA. "Current effective California state law and practice related to offender risk assessment, juvenile registration, and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes. Instead of incurring the substantial – and un-reimbursed – costs associated with the AWA, California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act. Any funding cuts to the JAG / Byrne grants to local law enforcement should be offset with other funds to ensure that the vital public safety work of those programs is continued. In addition to a significant number of lawsuits initiated in other states related to compliance, a case addressing the constitutionality of the AWA is pending in the Ninth Circuit Court."
They identified the following issues as problematic:
A national chorus of state government groups and research institutions has raised concerns about the way the federal law treats juvenile offenders, potential constitutional conflicts, and data showing sex offender registration doesn’t prevent repeat offenders. [Click here for article]
In September 2008, the Colorado Sex Offender Management Board issued a White Paper on the AWA. The Sex Offender Management Board submitted this White Paper to the Multi-Agency Implementation Committee for consideration in their final conclusion and recommendations regarding SORNA implementation. This White Paper concludes that the AWA should not be implemented in Colorado and that implementation costs are far greater than the 10% non-compliance penalty.
White Paper on the Adam Walsh Child Protection & Safety Act of 2006:
Research regarding registration for adult sex offenders and juveniles who have committed sexual offenses and community notification for adult sex offenders have not been demonstrated to reduce risk.
The tiered system is based on the offense of conviction and not an actuarial risk assessment for re-offending. Sex offenders do not fit into a standard profile. Charge of conviction, while perhaps containing elements relevant to risk, does not in and of itself accurately predict risk.
Many of these issues are currently being litigated. Some have been found unconstitutional. Issues include separation of powers, ex-post facto, due process, double jeopardy, and the right to an evidentiary hearing prior to registration. The retroactivity provision applies to all sex offenders including juveniles, regardless of when they were convicted.
Committee has been working on a cost-benefit analysis of implementation of the AWA and is estimating that the cost of implementation to one individual mid-size law enforcement agency may be comparable to the $240,000 annual penalty.
Registering of school and place of employment information, in addition to residence, may have adverse impact on community integration, placement options for children under social service/court jurisdiction, and increased zoning difficulties and efforts to build continuum of care for youth (foster homes, group homes, and residential treatment centers). In addition, requiring separate registration in different jurisdictions for residence, school, and employment places a significant financial burden on registrants given that many jurisdictions charge a fee for registration.
The State of Colorado should not pass the AWA as currently written. Colorado is currently connected to the National Sex Offender Registry and should participate in the efforts to enhance inter-jurisdictional communication related to registrants. This can be accomplished outside of any legislative initiative.
The State of Colorado should continue to update its sex offender management strategies, as prescribed by the SOMB, to reflect current research, best practices, and enhanced outcomes.
The price of implementing the federal law – about $38.8 million, according to one state estimate – far exceeds the $1.4 million in federal money the state would lose if it didn’t comply.
Allison Taylor, executive director of Texas’s Council on Sex Offender Treatment, an advisory body with a governor-appointed board: The federal Act "contradicts what our research over 30 years indicates. Public safety would not be enhanced." [Click here for article]
Retaining the 10% of federal funding is not adequate incentive because the cost to implement the changes to registries would cost much more than states would lose. In Texas the loss would be $1,404,571, where as the cost is assessed at $38,771,924. The major cost of the AWA is the result of modifying registration requirements. The most significant change to Texas would be the required registration of offenders with offenses that are not currently included in the list of offense requiring registration. An example of this is kidnapping of a child. Currently an individual only has to register if there is an element of sexual intent or if an assessment is done that indicates the individual is a risk for sexual misconduct. AWA does not call for the utilization of risk assessments and relies solely on offense. This would cause the number of people on the registry to increase greatly. The AWA also increases the number of times an offender has to verify their information with law enforcement. The number of times is determined by the tier they are in. There are three tiers; three is the most severe. Another major change is that sex offenders not only have to submit fingerprints and information, but also DNA to law enforcement. The length of required registration is also modified by AWA. Tier I people would have to register for 15 years; tier II for 25 years; tier III for life.
There are recent stories out of Dallas illustrating how the current system is already backed up. Staff shortages in law enforcement agencies have led to sex offenders being turned away when they go to update their registry information which they are required by law to do. The increase in required information reporting mandated by AWA will only add to the strain on law enforcement agencies and they, as illustrated by the situation in Dallas, are already struggling.
Currently the state of Texas allows for a judge to decide whether a juvenile has to register. It is done on an individual basis, which many would argue is the proper way to do it. AWA mandates that all juveniles would have to register for sex offenses. There was major concern with this change because of how it effects the privacy of juvenile records.
Testimony from the Senate Criminal Justice Committee public hearing on June 10, 2010.
Allison Taylor, Executive Director, Council on Sex Offender Treatment, "Texas has been working to narrow the sex offender registry to dangerous sexual offenders. Compliance with AWA would undo this work and place or keep many low-risk offenders on the registry. The registry has already grown substantially over the years making it hard and costly to maintain for law enforcement. The sheer numbers on the registry increase the difficulty of monitoring the dangerous offenders. Under AWA, registration would be determined by the category of one’s offense, not the nature and risk factors."
Liles Arnold, Chairman, CSOT, also testified regarding AWA and SORNA. He stated that one concern the council has with AWA is its emphasis with establishing a nationwide sex offender registry. This is a concern because recent research shows that registration is not protecting the public and reducing recidivism rates. He stated that there are 57,000 sex offenders currently registered in Texas. The current registry consists of unequally dangerous sex offenders; the concern is the large numbers affect how successful law enforcement is at monitoring the dangerous offenders. Arnold stated that registration for sex offenders has many negative side effects for individuals and their families. It leads to difficulty finding employment and housing, both of which are crucial for rehabilitation. He discussed a study done in Michigan which demonstrated that citizens were not even utilizing the registry that was the cause of so many negative consequences. Arnold’s recommendation to the committee was that Texas should not comply with AWA.
Gregory Moss, Lieutenant, Austin Police Department (APD), testified regarding the cost to comply with AWA for local law enforcement agencies. He also explained that AWA would provide national standards, removing the responsibility of converting offenses from other states from local law enforcement. He stated that while APD attempts to focus on those that are in noncompliance or will re-offend, the public assumes all registered sex offenders are predators. AWA would only increase the number of people on the registry whether they were predators or not. Moss testified in support of risk assessments and a de-registration process. He states that if low-risk offenders were able to de-register that approximately 10% of the Austin registry could be removed. This would increase their ability to monitor the predators.
Allison Taylor, "If this statue is not repealed then Texas cannot progress in its efforts to implement legislation passed in previous sessions to allow for a de-registration process. Instead Texas may have to add offenses in order to be in compliance."
Philip D. Taylor, a sex offender treatment provider, stated that not only do sex offender registries not protect the public, but according to research they are not cost effective. He also stated that barring sex offenders from certain areas does not protect the public; it only makes it difficult for sex offenders to find homes and creates sex offender ghettos. In addition, he stated that reviewing recidivism rates indicates that 75-80% of sex offenders are low risk. Taylor’s recommendation was to bar local governments from creating sex offender exclusion zones.
Repeal Article 62.402 (A) and (B) of the Code of Criminal Procedure to enable Texas not to be bound to the federal minimum for registration requirements.
Establish a minimum standard for registration requirements, which includes the current process for de-registration for those approved by the CSOT.
Not to implement AWA.
Require that all registered sex offenders have risk assessments done.
Continue working to improve communication between states regarding registered sex offenders who present a significant risk to community safety.
While the stated goals of AWA are essentially the same as those provided in the original 1990 Washington Community Protection Act, Washington’s laws differ in the implementation of these goals. Adopting many of the requirements of the AWA in Washington would have a profound effect on the current system. In particular, Washington’s system for classifying sex offenders is risk-based while SORNA is strictly crime-based.
Under SORNA, sex offenders are divided into three tiers depending entirely on the crime of conviction and sentence length. Within each tier, SORNA requires that the offender is subject to the same minimum duration of registration, frequency of in-person verifications, and extent of website disclosure. Washington’s registration and notification system is similar in that the duration of registration is offense-based, but it also evaluates each offender’s risk level to determine the frequency of in-person address verification and the extent of their information disclosure on the "Offender Watch" website. An offender’s risk level is determined by factoring the current offense, the offender’s criminal history, and particular elements of their conduct. As such, Washington’s leveling system, though not strictly offense-based, is closely related. Furthermore, studies have shown that a risk-based model is a better predictor of recidivism than the SORNA offense-based model.
The Washington Association of Sheriffs and Police Chiefs (WASPC), by statute, have been responsible for hosting the publicly accessible website for registered sex offender information. In 2009, WASPC adopted a new program which was codified by the legislature, now known as the Sex Offender Notification and Registration system (SONAR). In 2010, the legislature also codified the WASPC sex offender address verification program ensuring that addresses are verified every 12 months for level I offenders, every six months for level II offenders, and every three months for level III offenders. Homeless or transient offenders are required to check-in weekly and provide a list of all the places he or she has stayed in the past seven days. This tracks the verification requirements in SORNA in that the state levels correspond with the federal tiers in frequency of verification. This does not, however, address the underlying problem of level versus tier. There are also more extensive public disclosure requirements under SORNA, such as the requirement that all sex offenders be posted on the website, regardless of risk level, and the addition of employer address, school address, and vehicle license plate numbers and description, which Washington does not currently supply on Offender Watch.
Also of concern, SORNA mandates that its registration and notification requirements be applied retroactively to any offender who is currently in custody or under supervision or if an offender should reenter the justice system with a conviction for any crime. Earlier this year, the Supreme Court found two sections of Ohio’s version of the AWA to be unconstitutional. State v. Bodyke, Slip Opinion No. 2010-Ohio-2424) These sections had authorized the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law. The Court held that the challenged provisions violate the separation of powers doctrine of the Ohio Constitution. In addition to separation of powers, Washington would face extensive legal challenges based on ex post facto (retroactivity), double jeopardy, due process, equal protection, right to contract violations, and cruel and unusual punishment violations.
In addition to the costs associated with these legal battles, the costs of implementation would be enormous. The Justice Policy Institute estimates that it would cost Washington State almost $10.5 million to be in compliance with AWA. This includes the expense of new personnel, software, additional jail and prison space, court and administrative costs, law enforcement costs, and the legislative expense to craft and adopt new legislation. The cost of not complying, a loss of 10% of state Byrne Grants, would have been $549,742 in 2010. In Washington, state Byrne grants are primarily used to fund local drug task forces. While a loss of 10% would be difficult to absorb, especially in the current economic conditions, the cost of implementation far outweigh this loss.
The SOPB has been involved in this analysis since the inception of the Board in 2008. In a January 2009 memo, it summarized the numerous issues involved in implementing AWA and the Board has revisited many of these issues in the past two years as it worked to integrate some elements of AWA in its Recommendations to the legislature and monitored the legal challenges in other states. SOPB staff continues to work with the federal Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART), which assists states with implementation of AWA, to identify the barriers to substantial compliance and determine if a compromise is possible. [Click here for report]
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive. The statutory scheme has changed dramatically since this court described the registration process imposed on sex offenders as an inconvenience "comparable to renewing a driver’s license." And it has changed markedly since this court concluded in Ferguson that R.C. Chapter 2950 was remedial. . . The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, "impose new or additional burdens, duties, obligations, or liabilities as to a past transaction."
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. AWA violates separation of powers by requiring executive branch to reclassify sex offenders already classified by court order.
United States v. Crowell, 06-1095, 2006 WL 3541736 (W.D.N.Y. Dec. 7, 2006): Challenging bail provisions of AWA. On December 7, 2006, Magistrate Judge Leslie G. Foschio held that the AWA’s requirement that specific pretrial release conditions be imposed on all defendants accused of certain crimes violates the Fifth Amendment’s Due Process Clause, the Eighth Amendment’s Excessive Bail Clause, and separation of powers. The case was resolved before the district court could rule on Magistrate Judge Foschio’s decision, but the opinion and the briefs filed by AFPD Marianne Mariano of the Western District of New York provide a good reference point for challenging the mandatory pretrial release conditions.
United States v. Winslow, No. 3:07-CR-00072-TMB-DMS at 7.(D. Ala. Jan. 28, 2008): Victory under the discovery restriction provision of the AWA. On January 28, 2008, Judge Smith (D - Alaska), found that the government’s conditions for the defense’s review of the computer hard-drive seized in the case violated the defendant’s due process, fair trial and Sixth Amendment rights. As a result, the court ordered the government to provide the defense attorney with a copy of the hard drive, under specified conditions.
United States v. Knellinger, 471 F.Supp.2d 640 (2007): On January 25, 2007, Judge Payne (E.D.-Virginia), found, based on extensive expert testimony, that a reasonable computer expert would not agree to take a case in which s/he was required to examine the hard drive on government premises because of the expense and difficulty of moving their equipment to a government facility and the inability to provide adequate assistance under those conditions. Thus, the court held, because "ample opportunity" for inspection was not available at a government facility, a mirror image had to be provided to the expert. Reading the statute in this way allowed the court to avoid the constitutional question presented if it were read otherwise.
Carr v. United States, (No. 08-1301), the Supreme Court held that SORNA (18 U. S. C. §2250) does not apply to sex offenders whose interstate travel occurred before the Act went into effect. Because the court held that the statute itself cannot be interpreted to cover pre-SORNA travel, the Court did not reach the ex post facto question.
United States v. Bobby Smith, 481 F. Supp. 2d 846, 2007 (ED Mich., Mar. 8, 2007); United States v. Jackson, 480 F. 3d 1014 (9th Cir. 2007. Ex post facto argument against AG regulation if defendant traveled before July 27, 2006; provision used word "travels" (future) not "traveled" (past tense).
United States v. Kapp & Duncan, 487 F. Supp. 2d 536 (MD Pa. May 16, 2007); United States v. Marvin L. Smith, 2007 WL 1725329 (SD W. Va. June 13, 2007): Offenders could not be tried for violating AWA because Interim rule had not applied at the time.
State v. Boyd, 160 Wash. 2d 424, 158 P 3d 54, 59 n. 4 (2007); State ex rel. Tuller v. Crawford, 211 SW 3d 676, 679 (Mo. Ct. App. 2007): Defense access to computer data in child porn cases cannot be restricted.
United States v. Comstock et al., Case 5:06-hc-02195-BR [US Dist. Ct. ED N. Car. Sept. 9, 2007)]: Held civil commitment standards must be "beyond a reasonable doubt" rather than by "clear and convincing evidence."
Evans v. Ohio, CV-08-646797 (Cuyahoga Co. OH, May 9, 2008): Ohio court rules AWA violates ex post facto and cannot be applied retroactively.
ACLU v. Masto et. al, Case # 2:08-0822 (So. Dist. NV Sept. 2008): In Sept. 2008, a Federal Judge ruled AWA cannot be applied retroactively in Nevada.
Spangler v. State, 2009-Ohio-3178 (11th App. Ct. Ohio, 2009): Ohio’s 11th Circuit Court of Appeals rules Ohio SB 10/AWA violates the "separation of powers" clause.
There are more cases like the ones above. We are currently working to provide this information.
Employees from the county's court services department urged county board members to lobby against pending state legislation to bring Illinois in compliance with the Adam Walsh Child Protection and Safety Act . . . some of the groups charged with administration and enforcement of the proposed three-tiered system say the federal law, and Illinois' proposals to comply with it, are deeply flawed. Organizations like the Association for the Treatment of Sexual Abusers said there is no scientific research supporting sex offender registration as a successful method to reduce future sex crimes by past offenders. Employees from Kane County's Court Services Department joined that outcry. [More Here]
A state attempt to comply with federal sex offender law could end up a costly measure . . . the County Board Legislative Committee heard about the potentially damaging effects that a third piece of legislation, Senate Bill 1040, would have on court services and the sheriff’s department. The bill would require a heightened compliance from the county system, but without funding to do the required work. It will create a drastic increase in man-hours and personnel to reach compliance, officials said, so the committee decided not to support the bill in its current form. [More Here]
Estimates of how much Illinois risks losing for its noncompliance with SORNA range from $900,000 to $1.6 million. But the loss of Byrne Grant funds may not be enough of an incentive for Illinois or other states to pass legislation such as SB 1040. The reason: implementing SORNA has, for some states, proved far more costly than failing to comply. Ohio, for example, the first state to become fully compliant with SORNA, has had to defend more than 7,000 legal claims as a result, according to its office of the public defender, as quoted in a report dated July 28, 2011, from CNN. The Ohio Supreme Court has found its statute's retroactive registration requirement unconstitutional twice. Texas, which, like a majority of states, including Illinois, has yet to comply, has conducted studies that suggest that complying with SORNA would require the state and its cities and counties to expend an additional $38.7 million, compared with losing only $1.4 million in federal funds for noncompliance. [More Here]
Though the guidelines to SORNA indicate that it is the result of many amendments to the Wetterling Act, it must be noted that Ms. Wetterling herself has stated serious concerns about the current act and the use of the registry as mandated. She stated in a June 18, 2007 interview that, “We’re setting up an environment that is not healthy. It’s just anger driven, anger and fear. It’s not smart and it does not get us to the Promised Land.” ATSA agrees and believes there are more effective and less expensive means to safer communities. The introduction of the SORNA guidelines makes bold claims about the goals that registration and public notification can achieve. These claims have little foundation given that all available data indicate that registration and notification have had little to no impact on the rates of sex crimes in general or recidivism rates. [More Here]
NACDL opposes sex offender registration and community notification laws but also believes that if such laws are passed they should classify offenders based upon true risk, with full due process of law. The Adam Walsh Act includes the Sex Offender Registration and Notification Act (SORNA). SORNA sets forth a federal supervisory program that, if implemented by the states, is likely to significantly de-stabilize offenders, cause substantial confusion over registration and notification requirements and eventually make our communities less safe. Unfortunately, in enacting SORNA Congress failed to recognize several important facts about sex offenders. Sex offenders, as a class, exhibit low recidivism rates and are less likely to re-offend than other convicted criminals. Additionally, research suggests that community notification laws do little to reduce recidivism. Requiring the same registration and notification provisions for all sex offenders diminishes the ability of the community to ascertain the truly dangerous sex offender. It also undermines the ability of the non-dangerous sex offender to maintain employment, family ties, and treatment programs. NACDL believes that a determination of offender risk must be based upon the individual characteristics of the offender and not solely on the offense for which the offender was convicted. In fact, many states now have registration and notification programs that are tiered upon the basis of individual risk assessment studies performed by competent mental health professionals.
In enacting the Adam Walsh Act and SORNA Congress succumbed to myths about sex offenders which are not supported by the existing scientific and social science research. The proposed regulations in this docket fail to protect important constitutional rights of sex offender registrants and go beyond the statutory authority granted to the Attorney General to promulgate regulations that implement a registration system. The system created by the confluence of SORNA and these regulations is a non-judicial system of supervised released coupled with the ever present specter of additional prison time for even the most minor of violations. [More Here]
I understand that at a recent hearing of the Committee on the Judiciary, a witness stated that Ohio expended a mere $400,000 to implement SORNA. That figure, which unfortunately has been touted by the SMART Office, is a gross understatement of the true costs experienced by the State of Ohio in its efforts to comply with SORNA. It may be impossible to provide a definitive total of Ohio’s implementation cost, but a better estimate—one that factors in the costs to local sheriffs, prosecutors, and courts—would easily be in excess of ten million dollars. Since the June 2010 decision was issued, Ohio has had to undo much of the reclassification that took place in November 2007. This has involved untold hours of work at the Ohio Attorney General’s office, county courts, county sheriff offices, county prosecutor offices, and the state and county public defender offices. And the state now has the ongoing costs of maintaining essentially two registry systems: one registry for those convicted before Ohio’s SORNA law, and another for those convicted after Ohio’s SORNA law went into effect. The duration of registration, frequency of verification, and amount of information required varies between the two registries. [More Here]
Click here for a time line of actions taken to stop SB3359.