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House Subcommittee Examines Sex Offender Registration and Notification Act

On March 10, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing entitled, “The Sex Offender Registration and Notification Act (SORNA): Barriers to Timely Compliance by States.”

Chair Bobby Scott (D-VA) said, “In 2006, Congress passed the Adam Walsh Act [P.L. 109-248], which included the Sex Offenders Registration and Notification Act, known as SORNA. SORNA set forth a uniform national registration and notification system for sex offenders. It required states, tribes, the District of Columbia, and U.S. territories to comply with its mandates by July 27, 2009, or lose 10 percent of its [Edward] Byrne [Memorial Justice Assistance] Grant [program (P.L. 109-162)] money. With less than four and a half months to go, not a single state, tribe, territory, or the District of Columbia has been found to have complied with SORNA. And, according to the Office of the Inspector General, it is unlikely that jurisdictions will fulfill their SORNA requirements by July.”

Rep. Scott also discussed the financial concerns about SORNA’s implementation shared by many states: “As states approach the deadline for implementation, some are taking a hard look at the cost of implementation. Some have estimated that it will cost California at least $37 million dollars to implement SORNA, and that the Byrne Grant money it will lose if it does not implement SORNA will be $2.1 million. In my home state of Virginia, implementation of SORNA is estimated to cost more than $12 million, while the loss of Byrne Grant money will be only $400,000. I have also been told that after implementation, it will cost Virginia nearly $9 million per year to maintain SORNA.”

Ranking Member Louie Gohmert (R-TX) said, “Some states take issue with SORNA’s ‘offense-based’ approach of categorizing sex-offenders by their crimes and requiring individuals who committed similar crimes to have similar registration obligations. These states advocate a ‘risk-assessment’ approach to registration that utilizes actuarial tools to predict recidivism by taking individual criminal history, victim profile, and age into account. However, there is little consistency to these various programs. They are not uniform in the criteria they apply or in who performs the assessments. This creates discrepancies over which sex offenders should be tracked nationwide. Despite these discrepancies, risk-assessment states allege their approach is better than SORNA’s offense-based approach. Until there is some uniformity to these risk assessment programs and they demonstrate a better track record, I believe the most reliable approach is to track offenders by offense and to lock up those who fail to register…The suggestions that Congress ‘water-down’ or gut SORNA seem to be premature at this time. The first deadline has not passed, and all states can still seek extensions of time. Before we hastily pass judgment over the Adam Walsh Act, we must remain mindful of the need to effectively track sex offenders.” 

Ernie Allen, president and chief executive officer of the National Center for Missing and Exploited Children (NCMEC), explained SORNA’s background, stating, “In 1994 Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Predators Act [P.L. 103-322], mandating every state to implement a sex offender registration program. However, by 2006, even though all 50 states, the District of Columbia, and some U.S. territories and Native American tribes had created sex offender registries, there was still a striking lack of consistency and uniformity. In response, Congress passed the Adam Walsh Child Protection and Safety Act in July of 2006 in an effort to enhance and tighten the sex offender registration system. The Adam Walsh Act attempted to correct the serious discrepancies among the jurisdictions, eliminating loopholes in the laws that permitted sex offenders to cross state lines and remain undetected. By encouraging uniformity across jurisdictions, the Adam Walsh Act attempted to prevent sex offenders from ‘forum-shopping’ in order to remain anonymous. However, despite Congress’ intent, the goals of the Adam Walsh Act remain unmet today. Title I of the Adam Walsh Act is commonly referred to as the Sex Offender Registration and Notification Act (SORNA). The Sex offender Monitoring, Apprehension, Registration and Tracking (SMART) Office is authorized to determine whether a jurisdiction has substantially implemented SORNA or to grant an extension of the deadline. A jurisdiction must submit materials about its registration program to the SMART Office. The Adam Walsh Act permits jurisdictions to apply for up to two one-year extensions…Currently, there are no jurisdictions listed on the SMART office webpage as having achieved substantial compliance.”

Mr. Allen also discussed the barriers to compliance: “Cost appears to be the primary hurdle for compliance. It is difficult to determine a particular jurisdiction’s required costs to implement SORNA with accuracy. However, some jurisdictions are doing so in an attempt to weigh the costs of implementation against the loss of Byrne Grant funds… In order to come into compliance with the Adam Walsh Act, many jurisdictions must make fundamental changes to their sex offender registration systems. Yet, these jurisdictions simply do not have the resources to make the necessary changes, leaving us where we were prior to the enactment of the Act with inconsistency across the jurisdictions enabling some sex offenders to game the system. In order to help protect our nation’s children, we must improve our current registration system so that we know where all of the convicted sex offenders are. We must assume that those who represent the greatest threat are those least likely to be compliant. They are the most likely offenders to attempt to disappear.” He concluded, “We understand that resources are scarce and that there are many competing demands. However, it is hard to imagine a greater or more pressing priority. NCMEC urges lawmakers, law enforcement, and the public to take a serious look at the dangers threatening our children today, and to move decisively to help states create a seamless, coordinated, uniform system that works.”

Laura Rogers, former director of the Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking [SMART] office, said, “Special interest groups and individual jurisdictions find fault with sections of SORNA. Those with a myopic perspective often do not understand the significance of individual modifications that they seek. We must recognize that every jurisdiction is unique, with distinct issues. No single modification to SORNA will remove all of the hurdles to substantial implementation. As the SMART office has and currently does, each jurisdiction must be worked with individually to achieve success. However, a significant hurdle to substantial implementation that can be solved is the lack of funding provided to support the jurisdictions and the SMART office in their efforts.” 

She continued, “SORNA compliance is challenging, but it is achievable and it is on track. The fact that no jurisdiction has yet met substantial compliance does not mean that SORNA, as currently constituted, is too burdensome or unachievable…Numerous jurisdictions have already shown enough progress to be granted extensions. Jurisdictions still, realistically, have two years and four months to comply with SORNA. The final national guidelines on sex offender registration and notification were only published July 1, 2008, by the SMART office. Dozens of jurisdictions have already submitted new or amended legislation, compliance packages, tiering structures, extension requests, and other items for review [by] the SMART office.

Emma Devillier, assistant attorney general of Louisiana, Criminal Division, and Chief of the Sexual Predator Unit, discussed Louisiana’s efforts to come into compliance with SORNA. “After passing House Bill 970 [Louisiana’s version of SORNA], Louisiana submitted the legislation to the SMART office for determination of substantial compliance. Despite best efforts, in late fall of 2007, the SMART office determined that though the State of Louisiana had made ‘substantial efforts to achieve compliance with SORNA,’ the state had ‘not achieved substantial compliance with SORNA.’”

Ms. Devillier explained the specific difficulties Louisiana faced in implementing SORNA: “This entire experience has been difficult for several reasons. First, Louisiana received very little guidance from the SMART office. Though Louisiana tried very hard to work with the SMART office, we received no clear instruction or guidance on whether the legislation we were proposing was sufficient or even close to being in ‘substantial compliance’ with SORNA. Second, the SORNA final guidelines are not practical. We experienced great difficulty in determining which of our state’s substantive sex crimes belonged in which tier. The elements of Louisiana’s sex crimes do not fit neatly into the elements of each tier proposed by SORNA. The Final Guidelines do not take into account the elements of a sex crime that vary from jurisdiction to jurisdiction. Third, it is quite obvious that the SMART office interprets ‘substantial compliance’ to mean ‘actual’ or ‘strict’ compliance. The SORNA Final Guidelines determined that SORNA offered jurisdictions a ‘floor’ in which to comply, not a guideline. In this vein, Louisiana was even advised in its compliance audit by the SMART office that it would have to amend some of its substantive sex crimes in order to comply. Fourth, as a prosecutor who has specialized in sex crimes, I can tell you that SORNA’s offense-based (at least as interpreted by the SMART Office), retroactive system is over-inclusive, overly burdensome on the state, exorbitantly costly, and will actually do more to erode community safety than to strengthen it. This is generally true, I am advised, not just for Louisiana, but for most states.”

Bob Schilling, a detective in Seattle’s Special Victim’s Unit, Sex and Kidnapping Offender department, offered his views on SORNA and community involvement: “I ask that you consider how the Sex Offender Registration and Notification Act impacts the public safety aims of effectively managing sex offenders in the community. SORNA does not mandate community education as a component of community notification. This is a recipe for disaster and leaves citizens trying to sort out fact from myth, truth from emotion, and what to do next. This creates public safety concerns and does not have the citizens invested in offender success. It has the opposite effect…The community deserves to know who the high-risk sex offenders are in the community, about the relatively low sex offender recidivism rates, and what research tells us. Citizens can and will act responsibly if we are honest with them. They are better able to protect themselves and their loved ones when we educate them about sex offenders.”

Det. Schilling also discussed SORNA’s tier system: “SORNA mandates offense-based tiering, which is a faulty alternative to actuarial risk-based tiering used in over 20 states. Citizens have grown used to level one sex offenders being low risk, level two being moderate risk, and level three being high risk. Under SORNA, most sex offenders will be [listed as] tier three. That will cause great confusion and anxiety for the citizens, as they believe each of these offenders is a high risk to re-offend. That is just not true. Sex offenders differ greatly in their level of impulsiveness, persistence, risk to the community, and their desire to change their deviant behavior. Assigning sex offender tiers based on crime of conviction tells us very little about who this sex offender is and what his or her risk for re-offense may be. In Washington state, I have the ability to aggravate someone’s risk level if dynamic risk factors indicate an escalation in risky behavior. I won’t have that ability under SORNA. Their tier [will be] their tier. It is not an effective way of doing business with the public.”

In response to a question from Rep. Scott about the best way to prioritize resources for SORNA, Det. Schilling stated, “Target resources to the highest risk offenders…[which should be listed] using actuarial risk-based assessment models.”

Resident Commissioner Pedro Pierluisi (D-PR) asked Ms. Rogers how many states she believes will be in compliance by July 2008, the original deadline for compliance. Ms. Rogers stated, “There may be none; every jurisdiction knows they have two one-year extensions available and they’re taking full advantage.” Ms. Rodgers also suggested increasing Byrne Justice Assistance Grants to states, as well as boosting law enforcement personnel to assist states in coming into compliance. In response to a question from Rep. Ted Poe (R-TX), Ms. Rodgers stated that money was not the only impediment; some “jurisdictions…don’t want to modify their registration system.” 

Also testifying were Amy Borror, public information officer from the office of the Ohio Public Defender; Madeline M. Carter, director of the Center for Sex Offender Management and principal at the Center for Effective Public Policy; and Mark Lunsford, whose daughter Jessica was abducted and murdered by a convicted sex offender in 2005.

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