5 years later, states struggle to comply with federal sex offender law

[Walter Cronkite]

Five years ago this week, President George W. Bush signed the Adam Walsh Child Protection and Safety Act with the intention of making it the law of the land for keeping tabs on sex offenders.

Named for the 6-year-old whose slaying by a stranger galvanized child safety reforms and turned his father, John Walsh, into one of the nation's most recognizable victims' advocates, the law set forth the most comprehensive national standards to date for monitoring sex offenders in America's communities.

This week also marks a key deadline for states, tribes and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding, not exactly small change in tight economic times.

As of Wednesday, the 30th anniversary of Adam Walsh's disappearance from a Florida department store, 14 states, nine tribes and the territory of Guam had "substantially implemented" what's known as the Sex Offender Registration and Notification Act, or SORNA, provisions of the Adam Walsh Act. On the eve of the July 27 deadline, last-minute submissions were pouring into the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, known as the SMART office.

The law expanded the categories of crimes eligible for registration and increased the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states. It called for jurisdictions to retroactively register some adult offenders who'd already done their time on the registry. It also called for registration of certain juveniles who'd been shielded from the registry in the past, based on the notion that confidentiality offers them a greater likelihood of rehabilitation.

The goal was to corral the information into a national public registry and FBI database. But the act is still very much a work in progress.

Ground zero: Ohio

It's not from a lack of desire, said Susan Frederick, federal affairs counsel with the National Conference of State Legislatures. Since 2008, 48 states have enacted nearly 350 laws related to residency restrictions, sentencing and monitoring sex offenders, according to an NCSL database.

"States are very sympathetic to the need to supervise and penalize registered sex offenders. There's no softness on that population," Frederick said. "But any time you're going to be collecting and cataloging information on more people more often, that comes at a high cost. The question is whether it's worth it."

Many states don't want to change their laws; others believe the legislation's cost outweighs its predicted benefits, she said. Texas has put the estimated federal funding cuts at $1.4 million, compared to a cost of $38.7 million.

To see how the law has fared in practice, one need look no farther than Ohio, the first state to adopt the law in its original, most stringent form, in 2007.

Ohio's version of the Adam Walsh Act, SB 10, has resulted in more than 7,000 legal claims, according to the state public defender's office. It also has led to years of litigation, two state Supreme Court rulings and separate registry criteria for sex offenders whose crimes occurred before and after the law's enactment.

The slow unraveling of Ohio's law underscores some of the major criticism of the new federal scheme and the registry in general: that it stigmatizes offenders beyond hope of rehabilitation while giving the public a false sense of security.

The federal agency created to help the states implement the act acknowledges that compliance has been an uphill battle. It has also listened to the states' concerns and issued supplemental guidelines that offer states more flexibility than Ohio had when it adopted its law.

Controversial legal issues like retroactive registration -- requiring an offender who was sentenced before the legislation to follow the new rules -- and juvenile registration get the most notice. For most states, however, the biggest hurdles are implementing technology and adjusting statutes, said Linda Baldwin, director of the SMART office.

"What happens across the board is some states are finding it more difficult to implement SORNA depending on their starting point," she said. "We've found that states whose systems are not centralized and digitized have had to make great changes to their registry system, but those changes require an investment that states have been able to apply to our office for funding for."

Uniform laws and a centralized database enable law enforcement to share information and ensure offenders don't slip through the cracks, Baldwin said. Community notification makes information about released sex offenders broadly available through various means, such as postcards in the mail, phone calls, e-mail alerts and police going door to door.

Online registries don't include everyone who is a threat, she said, because not all dangerous predators are known to law enforcement. Online registries also are not a tool to reduce repeat offenses, she said.

"It's hard to measure whether these important public safety goals are being met and figuring out how to measure that is challenging and may take years for us to complete," Baldwin said. "But what we've found is, as an alternative, many people are focusing on registration notification programs as tools to reduce recidivism, which really is not a major goal of these laws."

She stressed that the registries are "primarily a law enforcement tool, an ability to allow the public to take measures to protect themselves."

Do sex offender registries work?

The effectiveness of registries -- for sex crimes and other offenses -- has long been a topic of debate. Supporters like Baldwin tout their public safety benefits, while critics say they can have the unintended consequence of destabilizing sex offenders.

"Public notification creates barriers to successful sex offender management and treatment and supervision," said Alisa Klein, Public Policy Consultant for the Association for the Treatment of Sexual Abusers and co-author of the report, "A Reasoned Approach: Reshaping Sex Offender Policy to Prevent Child Sex Abuse (PDF)."

Offenders re-entering the community need strong support systems to prevent them from reoffending, she said, through family, faith communities and a steady job.

"Going on a public registry creates an immediate stigma. It can prevent employment, prevent them from living with families, get them thrown out of faith communities; it has the consequence of putting someone in an emotional state that may make them more likely to reoffend," she said.

Some states have attempted to evaluate the benefits of SORNA. In Texas, home to more than 60,000 registered sex offenders, a 2010 report from the Senate Criminal Justice Committee (PDF) concluded, "It is clear registries do not provide the public safety," noting the issue contained "gray areas."

The California Sex Offender Management Board also recommended against implementing the provisions of the Adam Walsh Act, stating, "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."

People on both sides of the debate agree that truly dangerous sexual predators, such as pedophiles and rapists, need to be monitored closely if they're going to be released into communities.

The federal law uses a three-tiered system based on the sex crimes offenders are convicted of to determine the length of time they must remain on the registry and the frequency with which they must check in with law enforcement. Critics say that using offense-based registration instead of an approach based on risk-assessment -- favored by states like Texas and California -- pulls too many offenders onto the registry and overburdens law enforcement, preventing police from keeping a close eye on the worst of the worst.

"I think we would have a better use of our time if we could determine who the most dangerous ones are," said Sheriff Jeff Grey of Mercer, Ohio. "Sometimes we get tied up registering the ones who are trying to do the right thing and don't have time to look for the ones that are out of compliance, but just because someone's registering and doing everything he's supposed to doesn't mean he's not going to reoffend."

In Ohio, law enforcement is working closely with the state Attorney General's Office to explore ways that technology can streamline the process. Sheriffs' departments use software that sends e-mail notifications to offenders or calls them seven days before they have to register. If the e-mail bounces back or the call goes to the wrong person, law enforcement knows an offender is not complying, Grey said.

The state also recently released an iPhone app -- Shaquille O'Neal is its spokesman -- that locates registered sex offenders in a given area. Authorities in Ohio also are looking into kiosks to allow offenders to self-register through iris and fingerprint scans at the sheriff's department if the technology proves reliable.

"We need to keep up with the technology because it's there to help us do the job," said Grey, chairman of the sex offender registration and notification committee for the Buckeye State Sheriff's Association.

Besides Ohio, states that have adopted SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, South Carolina, South Dakota, and Wyoming. The number of offenders on Wyoming's registry increased from 125 to 1,450 after the state moved from risk-based assessment to a tier system for registration, said Kevin R. Smith, deputy director of the state's Criminal Justice Information Services.

The biggest change for Wyoming involved juveniles, who were exempt from registration under old state law. New guidelines passed in January 2011 allowed Wyoming to exclude juveniles from appearing on the online registry, but they're still subject to community notification, he said.

"It's always been a difficult decision for the Legislature, the need to register juveniles for public safety versus the idea of confidentiality to rehabilitate juveniles." Smith said. "Wyoming didn't want to be seen as any more or any less restrictive than the national standard. ... We didn't want to be seen as the place to come to that was easier on sex offenders."

Myths and realities of "stranger-danger"

There's a saying among critics of the registry, that the rare cases of "stranger-danger" inspire the most sweeping legislative reforms. The slayings of Adam Walsh, Jacob Wetterling, Jessica Lunsford and Dru Sjodin, all sparked legislation that has been incorporated in the Adam Walsh Act.

Sadly, it often takes a tragedy to inspire needed reforms, said Linda Walker, Sjodin's mother. She thinks if the Dru Sjodin National Sex Offender Public Website had existed in 2003, it might have saved her daughter's life.

Neither Sjodin, a University of North Dakota student, nor her mother knew that a sex offender considered likely to reoffend was living across the border in Crookston, Minnesota. Alfonso Rodriguez was released from prison in May 2003 after serving 23 years for sexual violence against a Crookston woman. He abducted Sjodin from a mall parking lot in Grand Forks, North Dakota, on November 22, raped and murdered her. Rodriguez is awaiting execution on federal death row.

Sjodin's death inspired Dru's Law, which required convicted child molesters to be listed on a national online database and face a felony charge for failing to update their whereabouts. It was included in the Adam Walsh Act and signed into law the same day, five years ago.

Sjodin's mother has become a member of a club no one wants to belong to: The Surviving Parents Coalition. The group advocates for legislative initiatives in areas of child safety education, the expansion of DNA laws and national standards for sex offender legislation -- Walker's main focus.

She maintains that the Adam Walsh Act sets minimum standards, not a ceiling, so the public can protect itself.

"Our borders, we don't see them, and we're such a mobile nation, we move to different communities frequently, so this gives you a better awareness of who you might be living among," she said.

"I get so angered that we humanize these people who choose to victimize. We give these offenders two, three, four different chances -- what does that say to the victims?"

Collateral effects

Some people would rather die than face a lifetime on the registry. One of those people, Roy Martin, hanged himself in his garage after learning he would be reclassified as a Tier III offender in Ohio.

Martin was released from prison in 2004 after serving 10 years for raping a female relative, though he maintained his innocence, said his lawyer, Shimane K. Smith.

Under the state's Megan's Law, which took effect in 1997, a judge classified Martin a sexually oriented offender, which meant he had to register once a year for 10 years after his release. Then he received a letter in November 2007 from the Ohio Bureau of Criminal Identification and Investigation notifying him that under Ohio's SB 10, he would be reclassified effective January 1, 2008, as a Tier III offender.

For the rest of his life, he would have to check in every 90 days with law enforcement to confirm his home address, employer, school address and Internet identifiers and vehicle make.

His sex offender status was already a source of deep shame for the introverted, 50-year-old construction worker, who was prone to drinking in times of despair, said his companion, Denise Sees.

"You go to get a job, they know your record, they don't want you. Everybody knows who you are. You're marked for life," she said.

She never suspected he was capable of killing himself. But upon reflection, there were signs to indicate he had prepared for it, she said. He cleaned up the garage, organized his tools, finished an addition to the house. Then, early in the morning of February 27, 2008, he came home smelling of alcohol.

"I went to bed; told him we didn't have to talk about it. In the middle of the night, I heard coughing. I thought he was smoking a cigarette. I woke up the next morning and was calling for him. He was in the garage. He had hung himself with a cord," she said.

He didn't leave a note, but she knew that the prospect of lifetime registration was too much to bear.

"If you've not been involved in it you do not know what it's like," she said. "I just think him having that label on him, he couldn't take it anymore. I think he thought that was his best choice."

Since Martin's suicide, retroactive registration under SB 10 has been found unconstitutional by the Ohio Supreme Court in two cases, including a July 13 ruling that found imposing "current registration requirements on a sex offender whose crime was committed prior to the enactment of SB 10 is punitive."

Ohio Attorney General Mike DeWine said he does not agree with the court's decision in State v. Williams (PDF), but his office will not appeal the ruling. He does plan to seek clarification on how the panel reached its decision and how that could apply to cases down the road.

DeWine, a former U.S. senator and representative, continues to support public registration. His next step is to figure out how to make sure offenders retain their pre-SORNA classification.

"The public has an interest in making sure these people check in with police and that we know where they are," he said. "The public policy goal of the attorney general's office is to make sure that the sex offenders who were classified before remain classified."

The juvenile issue

The recent court ruling creates a cliffhanger ending for those watching three juvenile cases that raised similar claims regarding retroactive registration.

"We think with the court's finding that SB 10 can't be applied retroactively to adults should lead to the same finding for children," said Brooke Burns with the Ohio Public Defender's Office, who represents two juveniles in claims that retroactive application of the law for juveniles is unconstitutional.

The cases underscore concerns nationwide that placing teens on a public registry will stigmatize them and hamper their chances of moving beyond the offense.

Given juveniles' positive response to treatment and room for cognitive development, the juvenile system has traditionally been regarded as rehabilitative, unlike the adult system, which counts punishment among its goals, Burns said.

"The court's finding that registration is punishment opens the door for us to start advocating that juveniles cannot be given a punishment because they're in juvenile court, which in itself is a rehabilitative system," she said.

Another scenario she hopes for is that the court might consider terminating the requirement to register at 21, the age at which the juvenile court loses jurisdiction over an offender -- except when it comes to the registry, Burns said.

"The only penalty that sticks beyond the juvenile system in and of itself is registration," she said. "We hope with (the court calling the registry) punishment, perhaps the court will find ... that you cannot impose a lifetime punishment on children or a person when the court that imposed it only has jurisdiction on a person 'til 21."

The use of the word "punitive" in the ruling has been a source of hope to opponents of the registry, who disagree with case law that says sex offender registration does not constitute cruel and unusual punishment because it is a civil remedy intended to protect the public.

Critics of the registry say it perpetuates fears that strangers are most likely to commit sex offenses on children, when research shows the most frequent perpetrators are relatives and acquaintances. Victim advocacy groups and policy think-tanks cite volumes of academic research and a Department of Justice study to support the argument that registries are not a cure-all for preventing sex crimes against children.

"It's such a misleading statement to send to the public that we somehow have a notion of where all sex offenders are and that we can keep the public safe from them because we have a registry," said Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault. "It's fueled by awful things that happened to children and very understandable, but unfortunately that's not a fix that makes sense for most offenders."

Sex crime prevention begins in the home, she said, by instructing parents of the warning signs and teaching children not just about good touches and bad touches, but also about basic respect.

"Primary prevention is very long-term work that involves a cultural shift in terms of how we deal with children, what we teach children, the messages communities send toward children and women," she said. "There are still a lot of cultural norms that allow for the victimization of people who are vulnerable."

Source: CNN