[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
SEX OFFENDER NOTIFICATION AND REGISTRATION ACT (SORNA): BARRIERS TO
TIMELY COMPLIANCE BY STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 10, 2009
__________
Serial No. 111-21
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
BRAD SHERMAN, California TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California J. RANDY FORBES, Virginia
SHEILA JACKSON LEE, Texas TOM ROONEY, Florida
MAXINE WATERS, California BOB GOODLATTE, Virginia
STEVE COHEN, Tennessee DANIEL E. LUNGREN, California
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
----------
MARCH 10, 2009
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 40
The Honorable Pedro Pierluisi, a Representative in Congress from
Puerto Rico, and Member, Subcommittee on Crime, Terrorism, and
Homeland Security.............................................. 42
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 43
The Honorable Ted Poe, a Representative in Congress from the
State of Texas, and Member, Subcommittee on Crime, Terrorism,
and Homeland Security.......................................... 44
WITNESSES
Ms. Laura Rogers, previous Director of the Department of Justice
SMART Office, Washington, DC
Oral Testimony................................................. 46
Prepared Statement............................................. 48
Ms. Emma J. Devillier, Assistant Attorney General, Criminal
Division, Office of the Attorney General of Louisiana, Chief,
Sexual Predator Unit, Baton Rouge, LA
Oral Testimony................................................. 52
Prepared Statement............................................. 54
Ms. Madeline M. Carter, Principal, Center for Sex Offender
Management, Center for Effective Public Policy, Silver Spring,
MD
Oral Testimony................................................. 59
Prepared Statement............................................. 61
Mr. Ernie Allen, President and Chief Executive Officer, National
Center for Missing and Exploited Children, Alexandria, VA
Oral Testimony................................................. 74
Prepared Statement............................................. 77
Mr. Mark Lunsford, father of Jessica Lunsford, the victim of a
sex offense and murder, Homasassa, FL
Oral Testimony................................................. 86
Prepared Statement............................................. 87
Mr. Robert Shilling, Detective, Seattle Police Department, Sex
and Kidnapping Offender Detail, Sexual Assault and Child Abuse
Unit, Seattle, WA
Oral Testimony................................................. 89
Prepared Statement............................................. 90
Ms. Amy Borror, Public Information Officer, Office of the Ohio
Public Defender, Columbus, OH
Oral Testimony................................................. 104
Prepared Statement............................................. 107
APPENDIX
Material Submitted for the Hearing Record........................ 145
SEX OFFENDER NOTIFICATION AND REGISTRATION ACT (SORNA): BARRIERS TO
TIMELY COMPLIANCE BY STATES
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TUESDAY, MARCH 10, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Perluisi, Jackson Lee,
Gohmert, Poe, Smith, and Rooney.
Staff Present: Bobby Vassar, Minority Chief Counsel; Ameer
Gopalani, Majority Counsel; Mario Dispenza, Fellow, ATF
Detailee; Karen Wilkinson, Fellow, Federal Public Defender
Office Detailee; Jesselyn McCurdy, Majority Counsel; Veronica
Eligan, Majority Professional Staff Member; Caroline Lynch,
Minority Counsel; and Kimani Little, Minority Counsel.
Mr. Scott. The Subcommittee will now come to order.
I am pleased to welcome you today.
First of all, I want to apologize for being late. We had
votes that we just completed, but I am pleased to welcome you
here today to the hearing before the Subcommittee on Crime,
Terrorism, and Homeland Security on ``Sex Offender Registration
and Notification Act: Barriers to Timely Compliance by
States.''
In 2006, Congress passed the Adam Walsh Act, which included
the Sex Offenders Registration and Notification Act, known as
SORNA. That set forth a uniform national registration and
notification system for sex offenders that 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 Byrne Grant money.
With less than 4.5 months ago, not a single State, tribe,
territory or the District of Columbia has been found to be in
compliance with the provisions of SORNA. According to the
Office of Inspector General, it is unlikely the jurisdictions
will fulfill their requirements by July. The reasons for this
situation appear to be many, but one thing is clear: Everyone
has the same goal in mind, protecting the children and
communities. There may be differences of opinion on how best to
do that, but we all agree that protection must be a priority.
The purpose of this hearing is to learn more about why no
one has been found to have met the requirements of SORNA and to
determine whether congressional action is needed. The immediate
question before us is whether Congress needs to extend the
current deadline of July 27. Many States, organizations and
individuals, including some of the witnesses here before us
today, are urging us to do so, and hopefully, the information
received today will help us answer this question.
There are several issues that I hope our witnesses will
help us address. One is the fact that SORNA requires juveniles
as young as 14 to be placed on a public registry. This applies
not only to juveniles who are tried as adults but also to those
who are merely adjudicated of certain sex offenses in juvenile
courts. Inclusion in the public registry is mandatory, even
when the juvenile court judge does not believe it is
appropriate. This requirement is contrary to our traditional
criminal practice in treating juveniles differently from adults
and focusing on their rehabilitation. Juvenile sex offenders
have a low recidivism rate. In Virginia, data collected in 2006
found that none of the juvenile sex offenders released in 2005
had been re-arrested for a sex offense.
There are many groups and States that are urging Congress
to change how SORNA treats juveniles. I would like to hear
about any studies that address whether the mandatory inclusion
of such juveniles in a public registry furthers our purpose of
community safety and the effect that that inclusion has on the
rehabilitation of juveniles.
The juvenile adjudication procedures do not provide the
same procedural protections as adult courts. For example,
juveniles are not entitled to a jury trial, and placing
juveniles adjudicated in sex offenses under the same
registration and notification system as adults may raise
constitutional questions, particularly when SORNA is applied
retroactively. I am interested in learning of the legal
challenges that have been made to this aspect of SORNA and the
results of those challenges. I am looking toward to that
statement also.
SORNA classifies sex offenses into three categories.
Depending on the nature of the offense, these classifications
are critical because they determine what registration and
notification procedures are required for the sex offender.
Under the offense-based classification, the only consideration
is the code section of the underlying offense. There appears to
be a difference of opinion regarding whether SORNA's offense-
based classification is the best way to go. Some have argued
that a classification system based on individual risk
assessment provides greater protection to communities, and we
would like to hear what people have to say about that.
SORNA also applies to certain tribes. The National Congress
of American Indians, which represents 250 tribes as members,
has called upon Congress to amend SORNA. Their concerns focus
on tribal sovereignty and the delegation of Federal law
enforcement authority to States when no such delegation exists
in other areas of law, and there is the lack of funding. We
need to consider those concerns.
Now, there have been legal challenges to the constitution
of SORNA that either have or may have the impact on the ability
of States and others to comply with their requirements. We need
to know about these challenges. It is certainly unfair to
punish a State whose court has prevented it from implementing
SORNA. If certain portions of SORNA have been found to be
unconstitutional by courts, we need to know so we can address
that problem.
As States approach the deadline for implementation, some
are looking hard at the cost of implementation. Some have
estimated that it will cost California at least $37 million to
implement SORNA, and the Byrne Grant it might lose if it does
not implement SORNA will be approximately $2 million. In my
home State of Virginia, the implementation of SORNA has been
estimated to cost about $12 million while the loss of Byrne
Grant money would be only $400,000. So I have been told that,
after implementation, it will cost Virginia nearly $9 million a
year just to maintain compliance.
In addition to these implementation and operational costs,
there are costs of litigation. For example, the State of Nevada
passed a new sex offender registration law in an attempt to
comply with SORNA. The constitutionality of these laws was
challenged in court. The Federal District Court found that
these new State laws, which were retroactive, violated the ex
post facto, double jeopardy, due process, and Contract Clauses
of the Constitution and permanently enjoined Nevada from
enforcing its laws. Other courts have held the application of
SORNA to offenders who cross State lines before this law's
enactment violates the ex post facto clause.
At least six Federal District Courts have found SORNA to be
unconstitutional on the grounds that Congress exceeded its
authority under the Commerce Clause. No doubt these cases will
be appealed. There are but a few examples of the hundreds of
legal challenges that have been made in both State and Federal
courts. These litigation costs have yet to be quantified.
So, finally, the question is: How effective is SORNA in
protecting our children and communities? Do we increase safety
by requiring States to change their current registry system?
What does the research show? Even in today's economy, we will
pay whatever it takes to protect our children and communities
from these crimes, but we have to be sure that we are getting
the best protection possible for the money the we spend.
I am looking forward to hearing from all of our experts in
this area and to working together to ensure that we develop the
best approach for ensuring safe communities.
I know that there are many people who wanted to be heard
today but who could not be accommodated because of time and
space limitations on the panel. We hope to continue this
dialogue in the future and to provide all who wish to make
statements an opportunity to be heard.
To this end, several organizations and individuals,
including the American Bar Association; the National Congress
of American Indians; the Professional Advisory Board to the
Coalition of a Useful Registry; Beata Roberts; Laurie Peterson;
Charles McGonagle; the Association for the Treatment of Sex
Abusers; and the Mid-Atlantic Juvenile Defender Center have
submitted written statements, or transcripts, for the record.
And without objection, these will be included in the record.
[The information referred to follows:]
__________
__________
__________
__________
__________
__________
__________
__________
Mr. Scott. It is now my pleasure to recognize the Ranking
Member of the Subcommittee, the gentleman from Texas, Judge
Gohmert.
Mr. Gohmert. Thank you, Chairman Scott.
In 2006, Congress passed the Adam Walsh Act to protect the
public, particularly children, from sexual predators. The Adam
Walsh Act included the Sex Offender Registration and
Notification Act, or SORNA, which was enacted to create a
consistent and uniformed system of sex offender registries
throughout the country. This system would enable law
enforcement officials and the public to better track sex
offenders. SORNA would also prevent offenders from eluding the
authorities, especially when they move out of State.
The deadline for compliance by the States with SORNA is
July 27, 2009. The act directed the Department of Justice to
certify that States are compliant with SORNA, but it allows the
Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking--or SMART Office--to give States up
to two 1-year extensions to comply upon request. To date, no
State has been certified as SORNA-compliant, but a number of
States have requested an extension.
If a State does not comply with SORNA, the Department of
Justice may penalize the State by eliminating 10 percent of the
award of any Byrne JAG crime prevention grants for which the
State may be eligible. Regarding the cost, some States have
calculated that losing a portion of their Byrne JAG funds would
be far less expensive than meeting SORNA's requirements, just
as the Chairman mentioned.
However, considering that Congress has appropriated now
$2.225 billion in Byrne JAG funding for this year, compared
with last year's amount of $374 million, I would hope that many
State officials are rethinking that position. Clearly, this
huge increase of funding will do more to offset the cost of the
State implementation of SORNA.
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 an individual's 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.
Washington State uses the risk-assessment approach, but it
cannot properly track Darrin Sanford, a convicted sex offender
with a history of failure in registering as a sex offender.
Sanford had been identified as a person with a high likelihood
to re-offend, so much so that he was forced to wear a GPS
tracking device. Although Mr. Sanford was under Washington's
highest level of supervision, this did not stop him from
assaulting and killing a 13-year-old girl in Walla Walla last
month, a crime that he confessed to committing.
Until there is some uniformity to these risk-assessment
programs and they demonstrate a better track record, the most
reliable approach is to track offenders by offense and to lock
those up who fail to register.
Some States and advocates claim that SORNA should not
require that States register juveniles because they are more
amenable to treatment and are therefore less likely than adults
to become recidivists. I have great sympathy for that position.
However, SORNA does not track all juveniles but only those who
were tried as adults because of the severity of their offenses
or juveniles who were adjudicated delinquent for a sex offense
that involved the use of force, serious bodily harm or involved
a victim who was drugged or under the age of 12.
A number of lawsuits have challenged the constitutionality
of SORNA, as the Chairman mentioned. At least 18 Federal trial
court judges have upheld SORNA, while three others have found
it violated the Commerce Clause. However, the 12 Federal
Appellate Circuits, three of them--the 7th, 8th and 10th--have
addressed the Commerce Clause issue, and all have upheld the
statute. At this point, the courts have determined that SORNA
is constitutional. 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. We all know Mr. John Walsh for
his decades-long efforts as an advocate for missing children
and crime victims. As you know, Mr. Walsh has been a tireless
supporter of the legislation being reviewed here that bears his
son's name.
The 27-year-old investigation into the murder of his 6-
year-old son, Adam, was closed by Florida police in December of
last year. This, hopefully, brought some closure to the Walsh
family. I would have hoped that Mr. Walsh could have served as
a witness at this hearing, but he was unable to come today. He
has, however, submitted a written statement to the Subcommittee
in support for SORNA and for the other child protection laws in
the Adam Walsh Act.
I would ask unanimous consent that his statement be entered
into the record.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
Prepared Statement of John Walsh
On July 27, 2006, the anniversary of the abduction of my son Adam,
I was proud to stand alongside President Bush in the Rose Garden, along
with other parents who tragically lost their children to predators, for
the signing of the Adam Walsh Child Protection and Safety Act. My wife
Reve and I will always be grateful to the Members of both the House and
the Senate, Democrats and Republicans alike, for the way they all came
together to pass one of the toughest child protection laws ever.
This law was necessary because the patchwork of sex offender
registries around the nation made it too easy for predators to slip
through the cracks. There are about 100,000 of these sex offenders who
are not where law enforcement thinks they are. The lack of consistency
among the state laws makes it easy for them to disappear. These missing
sex offenders could be preying on someone's child at this very minute.
We cannot allow this situation to continue.
No one thought that the law named for my son would be an instant
solution to this problem. We knew that this would be just the first
step toward an improved system of keeping track of those who victimize
our children. But enacting the Adam Walsh Act by itself wasn't enough.
States want to do a better job of keeping our communities safe but they
are frustrated in trying to implement the Act because of the lack of
funding or because there are specific provisions in the Act that they
can't comply with. We need more time to work out these problems before
the states' deadline for compliance, in July of this year.
I know that the House and Senate Appropriations Committees want to
give the states the federal funding they need, and I applaud
Representative Mollohan, Representative Wolf, Senator Mikulski and
Senator Shelby for the efforts they're making to include Adam Walsh Act
funding in the 2009 appropriations bills. I urge Congress to make this
funding a priority in our nation's budget this year and every year.
I thank the Members of this Subcommittee for bringing attention to
the Adam Walsh Act and for helping to keep our children safe.
__________
Mr. Gohmert. Thank you, Mr. Chairman.
With that, I thank you. I thank the witnesses for being
here. As the Chairman said, I think we all want to protect
children. That is the bottom line. We just need to figure out
the best way to do it. Thank you.
I yield back the balance of my time.
Mr. Scott. Thank you.
The gentleman from Puerto Rico, did you have a statement?
Mr. Pierluisi. Yes, Mr. Chairman. Thank you very much.
I thank you for holding this timely and important hearing
on SORNA. Like you, I am eager to hear from our panel of
witnesses, so I will be brief.
SORNA, when it was enacted in 2006, established a national
sex offender registry. As we all know, the goal was to ensure
that convicted sex offenders could not evade detection simply
by moving from a State or territory with stricter registration
and notification requirements to a jurisdiction with less
burdensome requirements.
Accordingly, SORNA required each State and territory to
modify its sex offender registration and notification systems
to comply with extensive requirements set forth in the same.
The deadline for compliance is approaching, July 2009. Failure
to comply will result in a jurisdiction's losing 10 percent of
its Byrne grant funding. For many, perhaps most jurisdictions,
the cost of compliance is likely to be greater than the amount
of Federal funding that would be forfeited in the event of
noncompliance.
Mr. Chairman, what concerns me are the reasons cited by
some of the States and territories for their noncompliance to
date. In certain cases, the grounds given are not primarily
related to cost or to other logistical impediments. Instead,
the rationale offered by this these jurisdictions is rooted in
their profound misgivings over some of SORNA's substantive
requirements.
Let me say this from the heart and from my experience; I am
a former Attorney General. What troubles me the most is that,
clearly, this system is not working. When you have most, if not
all, of the States not complying, it speaks for itself. So it
sounds to me like we have no way other than extending this
deadline, but it should not be simply for the purposes of
extending it. We have to take a hard look at this and make sure
it works. We definitely need a national sex offender registry.
We definitely need to prevent these types of crimes, the worst
possible crimes I can think of.
Certainly, we have to look at things such as, for example,
the use of an offense-based classification system instead of
one based on the assessment of future risk. We have to also
look at the inclusion of certain juveniles who were not tried
as adults, yet were treated as such for purposes of the
registry, and the retroactivity aspects of this law, which have
cost some legal challenges before the courts.
So I am not happy. I would like the law to be enforced. I
would like to prevent these crimes from happening. This
registry makes all the sense in the world, but let us make it
better. Let us extend the deadline, but I will listen to you,
the witnesses, and hopefully, we can do it better the next time
around.
Thank you, Mr. Chairman.
Mr. Scott. Thank you.
The Ranking Member of the full Committee, the gentleman
from Texas.
Mr. Smith. Thank you, Mr. Chairman.
This past weekend, on Saturday afternoon, 13-year-old Esme
Kenney, from Ohio, went for a jog in her neighborhood. She took
her usual route along the water reservoir near her house.
Tragically, Esme never made it home. Her body was found on
Sunday morning.
Local police have arrested 40-year-old Anthony Kirkland for
her murder. Kirkland was previously convicted of sexually
soliciting another 13-year-old girl. Just last week, a warrant
was issued for his arrest for failing to update his address as
a sex offender. Kirkland also is a suspect in two additional
murders, one involving a 14-year-old girl and another involving
a 45-year-old woman. When Esme's family and friends grieve,
there are a lot of questions that need to be answered:
Why was a dangerous convict like Kirkland allowed to roam
the streets? Would Esme still be alive if Kirkland had
registered his current address? How can we prevent this from
happening again?
This sad story is all too real for one of our witnesses
today. Following the murder of his own daughter, Mark Lunsford
has begun a nationwide crusade to protect our children. He has
fought for legislation to provide more stringent tracking to
released sex offenders and has urged legislatures to adopt
longer sentences for criminals who sexually abuse children.
This type of legislation, often called Jessica's Law in
remembrance of Mr. Lunsford's daughter, has been introduced or
adopted in 42 States, a real credit to him.
As we listen to the statement and consider congressional
action, we must remember Esme, Jessica and thousands of other
young child victims. We have a solemn duty to protect the most
vulnerable among us. Congress should take additional steps to
give law enforcement officials the tools they need to keep our
children safe.
In 2006, Congress passed the Adam Walsh Act to better
protect children from sexual predators. A number of the Adam
Walsh Act grant programs that were authorized to help States
improve sex offender registration will expire at the end of
this year. These programs were established to enable the
Justice Department and State and local law enforcement agencies
to track and to apprehend absconders from the sex offender
registry, individuals like Anthony Kirkland. That is why I and
others introduced legislation to reauthorize these programs for
the next 5 years. I am hopeful that, after today's hearing,
many of our colleagues on both sides of the aisle will join us
as well.
One of the six programs reauthorized by this legislation is
the Jessica Lunsford Address Verification Grant Program. This
program provides grants to States, counties, cities, and Indian
tribes so they can verify the addresses of registered sex
offenders. Unfortunately, many of the Adam Walsh Act programs,
including the Jessica Lunsford grant program, have received
insufficient or no direct funding from Congress. Congress is
willing to tackle the economic crisis and budget issues, but we
should not lose sight of other congressional priorities.
Keeping children safe from sexual predators is not about
partisan politics. It is about children like Esme, Jessica, and
the thousands of other child victims nationwide.
Today we should begin a bipartisan effort that will help
protect children tomorrow. It is my hope that, as a result of
the sex offender registration legislation, fewer families will
have to face the loss of a child in the future.
Thank you, Mr. Chairman. I yield back.
Mr. Scott. Thank you.
We have been joined by the gentleman from Texas and the
gentleman from Florida.
Does the gentleman from Texas have a statement?
Mr. Poe. Yes, Mr. Chairman.
Thank you, Mr. Chairman. I appreciate all of you being
here, especially Mark Lunsford and Ernie Allen for being here.
In my former life, I was a trial court judge of criminal
cases for 22 years. I saw about 25,000 people work their way to
the courthouse, charged with the worst crimes that can be
imagined, and those crimes continue to occur, including that
which occurred against Jessica.
Mark, that is the reason you are here today.
Those victims are prey. They are picked by some criminal.
It crosses all races, all ages and both sexes, and they become
prey. Some of them suffer death because of the crime. Some of
those people who commit such bad crimes have done it before,
and unless the law intervenes, they will do it again. We know
all of the statistics that, when a child molester goes to the
penitentiary, most of them get out, and most of them re-offend
as soon as they can. They just do.
Congress needs to be aware of the real world. Sometimes we
forget about the real world because we are doing other things,
but it happens to families throughout the country every day. I
am disappointed that the States have not been able to comply
with the requirements. It seems like bureaucracy is getting in
the way of justice, and I am talking about the Federal
bureaucracy.
These people need to be registered, and we need to be able
to track them wherever they go in the United States because
they give up the right for us--or not for us to follow them
when they commit that crime against a child, and Congress
should make sure that we fund this program completely so there
are no problems in the future.
It seems to me that we as a society are never going to be
judged by the way we treat the rich, the famous, the important
folks. We are going to be judged by the way we treat the
innocent, the weak, the elderly, and the children. In some
ways, we are the only voice they have, and it is important that
Congress gets with the program and appropriates the appropriate
money to track these sex offenders.
The Adam Walsh Child Safety Act is one of the best pieces
of legislation to ever come out of Congress, and now we need to
make sure it is implemented so that it works.
I would yield back the remainder of my time. Thank you.
Mr. Scott. Thank you.
Does the gentleman from Florida have a statement?
Mr. Rooney. No, Mr. Chairman.
Thank you.
Mr. Scott. Thank you. We will begin with our witnesses
then.
Our first panelist is Laura Rogers.
In December 2006, she was appointed by President Bush to be
the founding director of the newly established SMART Office of
the Department of Justice, which was responsible for overseeing
the implementation of SORNA. She served in that position until
earlier this year. Prior to that appointment, she was the
director of the National Institute for Training Child Abuse
Professionals. She has also worked for the American Prosecutors
Research Institute's National Center for Prosecution of Child
Abuse, and for the District Attorney's Office in San Diego. She
received her Bachelor of Arts degree from Santa Clara
University and her Juris Doctorate from the California Western
School of Law.
After she testifies, our next panelist will be Deputy
Attorney General Emma Devillier. She has worked in the Office
of the Attorney General for Louisiana for 12 years. She
currently serves as chief of the Attorney General's Sexual
Predator Unit and oversees the Sex Offender Registration and
Notification system for the State of Louisiana. She has served
as a Louisiana State representative and as an assistant
district attorney prosecuting sex crimes. She is a graduate of
Louisiana State University, having received a BA in foreign
languages and a Juris Doctorate from LSU School of Law.
Our next panelist will be Madeline Carter, who is the
principal with the Center for Effective Public Policy, and is
the founding director of the Center for Sex Offender
Management. She has published widely on critical criminal
justice issues, including offender reentry and sex offender
management. She holds a Bachelor of Science degree and a Master
of Science degree in criminal justice from the American
University in Washington, DC, and has conducted postgraduate
work in organizational development at Johns Hopkins University.
Next will be Ernie Allen, who is the cofounder of the
National Center for Missing and Exploited Children. He has
served as its president and chief executive officer since 1989.
He is also the founder of the International Center for Missing
and Exploited Children, and serves as its CEO. He has received
numerous awards for his work in this field, and he is a
graduate of the Brandeis School of Law.
Our next panelist is Mark Lunsford. He is the father of
Jessica Lunsford, who, at the age of 9 years old, was the
victim of a sex offense and was murdered. He is the founder of
the Jessica Marie Lunsford Foundation, which advocates for
tougher laws for crimes against children. He is a board member
of Stop Child Predators and is a member of the Surviving
Parents Coalition.
Next will be Detective Robert Shilling, who is a 27-year
veteran of the Seattle Police Department. He leads the
department's Sex and Kidnapping Offender detail and has
instigated over 300 cases of sexual abuse. He serves on two
INTERPOL groups, the INTERPOL specialist group on Crimes
Against Children and the INTERPOL Sex Offender Management Theme
group. He has received numerous awards and has authored a
chapter on sex offender registry and community notification,
published in the INTERPOL Handbook of Best Practices.
Our final panelist will be Amy Borror, who is a public
information officer with the Office of the Ohio Public Defender
where she is the office's primary contact for media and the
public. Prior to her work, she has worked for the Ohio House of
Representatives and the Ohio State Bar Association. She is a
graduate of the University of Toledo.
So we will begin with Ms. Rogers.
TESTIMONY OF LAURA ROGERS, PREVIOUS DIRECTOR OF THE DEPARTMENT
OF JUSTICE SMART OFFICE, WASHINGTON, DC
Ms. Rogers. Good afternoon, Mr. Chairman and Members of the
Subcommittee. Thank you for the opportunity to join you today.
My statement this afternoon concerns progress in
implementing the Sex Offender Registration and Notification Act
and how this progress undermines some of the special interest
groups' and jurisdictions' criticism of the law.
Special interest groups and individual jurisdictions find
fault with sections of SORNA. Those with 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 resolve 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 of substantial
implementation that can be solved is the lack of funding
provided to support the jurisdictions and the SMART Office in
their efforts.
The facts show that sex offender registration and a public
registry are highly valued by the public. In the calendar year
of 2008, the National Sex Offender Public Web site had nearly 5
million users, and over 772 million sex offender sheets, or
files, were hit on. SORNA provides a comprehensive system that
gives our children and families access to the same minimum
level of information regardless of where they live, work or go
to school.
I am going to focus on three issues today: the challenge to
achieve SORNA compliance, the flexibility for jurisdictions
with SORNA and the resources that are needed to fully achieve
SORNA's vital purpose.
My first point is that 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. Congress set July 27 of 2009 as the initial
compliance date. It also built in two 1-year extensions,
extending the final deadline to July of 2011.
When I left office in January, no jurisdiction yet had
achieved substantial compliance. However, several
jurisdictions, including Ohio, had been working quickly and
were extremely close to achieving substantial compliance years
in advance of the deadline. Numerous jurisdictions have already
demonstrated enough progress to be granted extensions.
Jurisdictions still, realistically, have 2 years and 4
months to substantially comply with SORNA. The final national
guidelines on sex offender registration and notification were
only published July 1 of 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 to the SMART Office. The
Attorney General, who was deemed by Congress to have the
authority to identify compliance by the jurisdiction, delegated
that responsibility to the SMART Office.
Prior to my departure from the SMART Office, I put into
formation the establishment of an appeals process for
jurisdictions which disagreed with compliance decisions. During
my tenure, we resolved all issues through simple discussion. I
expect that this informal and pragmatic process will continue
over the next 2 years until most, if not all, of the
jurisdictions are in substantial compliance.
My second point is that SORNA, as it has been implemented,
offers significant flexibility to the jurisdictions. Though
SORNA in its statutory language appeared somewhat inflexible,
the SMART Office resolved many problematic issues and built
greater flexibility into the system. The final guidelines
reflect these efforts.
An example: Initially, the juvenile registration
requirement was highly problematic and did not make sense to
many jurisdictions and to other stakeholders, including myself.
Working within the confines of the law, the final guidelines
allow jurisdictions complete jurisdiction now regarding
registering juveniles who engage in the low-end ``consensual''
sexual activity. Now only older juveniles who are forcible
rapists, are forcible sodomists and the like, are mandatory
registrants under SORNA. Jurisdictions have complete
discretion--I repeat, complete discretion--and are not required
to register statutory rape-type offenders.
Another example is the clean record example. As written,
SORNA seemed to require mandatory implementation, thereby
forcing jurisdictions to completely overhaul their already
well-functioning registration systems that predated SORNA. This
was clearly not SORNA's intent. Through the guidelines, the
SMART Office gave jurisdictions far greater flexibility and
discretion.
A final example is SORNA's recordkeeping requirement. SORNA
appropriately requires all information to be collected in a
digital format or to be digitally linked. Many jurisdictions
balked at the expense of reacquiring all existing fingerprint
and palm prints in digital format. After consulting numerous
subject matter experts, the SMART Office afforded all
jurisdictions the flexibility to simply scan existing ink
prints, allowing them to avoid the significant costs of
purchasing live-scan systems to achieve the same goal. I would
add that this is one of the major cost items in California's
budget for implementation.
As these examples demonstrate, SORNA, as it is being
implemented, is far from an inflexible system that its critics
paint it to be.
My final point is that SORNA is affordable. Though it is
affordable, far more resources are needed to achieve its
promise. During my tenure, the SMART Office created, paid for
and provided a secure communication portal system to all 253
SORNA registration jurisdictions to allow for full compliance
with SORNA for immediate communication and information sharing.
We created the Tribal and Territory Sex Offender Registry
System, TTSORS, which we provided to each tribe and territory
and an individual digital sex offender registry system fully
connected to the National Sex Offender Public Web site. We
created an automated community notification system to allow for
proactive notification to the public when sex offenders
register, and we provided mapping and other types of
information.
These points undermine the chief arguments raised against
SORNA. SORNA is retroactive, but it does not require
jurisdictions to proactively seek out sex offenders who are not
currently registering but only those who are convicted of a new
offense, who were convicted of a sex offense prior to SORNA.
SORNA does not control where sex offenders live and go to
school. It has nothing to do with residency restrictions.
Finally, there is no workable alternative to the system
like SORNA. SORNA requires registration based on the fact that
the sex offender has already assaulted a real person. Risk-
assessment tools remain available for treatment purposes but do
not determine if a convicted sex offender should register or
guess whether they will offend again. Rightly so, Congress
recognized that risk assessments are not foolproof and are not
useful for juveniles. Only a minority of jurisdictions use them
for registration purposes, and an insufficient amount of
trained professionals are available to administer these tools
properly.
I am happy to answer any questions you have regarding
SORNA-related topics. Thank you for your time.
[The prepared statement of Ms. Rogers follows:]
Prepared Statement of Laura L. Rogers, former Director of the SMART
Office, Department of Justice, Washington, DC
Mr. Chairman and members of the sub-Committee, thank you for the
opportunity to testify and submit this statement for the record. Until
recently, I served as director of the Sex Offender Sentencing,
Monitoring, Apprehending, Registering and Tracking (SMART) Office in
the Depart of the Justice. Prior to my appointment, I prosecuted child
homicide and child sexual abuse cases for over a decade at the San
Diego District Attorney's Office. In have tried over 120 jury trials as
a prosecutor, and have a 92% success rate. Additionally, I served as a
senior attorney for the National District Attorney's Association's
National Center for Prosecution of Child Abuse for 5 years where I
trained front line child abuse prosecutors, police, doctors, first
responders and others on how to investigate and prosecute child
homicide (including shaken baby syndrome cases) and child physically
and sexual abuse cases. After leaving NDAA, I established a consulting
firm, the National Institute for the Training of Child Abuse
Professionals (NITCAP), and continued to train frontline child abuse
professionals in the United States and around the world. In short, I
have dedicated my entire professional career to protecting children,
and holding perpetrators accountable.
Protecting children is not a partisan, or political issue. It is
simply the right thing to do. The Adam Walsh Act, which I had the
privilege to help implement, is part of a larger framework in our
country to protect children. It is not the only law designed to protect
children, nor is it the most important law, but it is sound public
policy. It should be supported by this body, financially and otherwise.
Like many laws, it is not perfect, and there is room for improvement.
The Adam Walsh Act was signed into law on July 26, 2006. Since that
day, there has been much progress throughout this nation in the
implementation of the Sex Offender Registration and Notification Act
(SORNA). However, the momentum with which this progress is being made
stands to be undermined if special-interest groups' and individual
jurisdiction's myopic criticisms of the law is allowed to change the
statutory language of SORNA. Individuals who do not have a national
perspective do not understand the significance of the jurisdiction-
specific modifications they seek.
Congress intended to give this country and its citizens a
comprehensive system for sex offender registration and notification
under SORNA. SORNA recognized that every jurisdiction is unique, with
distinct systems and issues, and SORNA provides significant flexibility
that will allow for the comprehensive nature of the Act to be achieved,
while still requiring jurisdictions to meet or exceed equivalent
minimum standards.
Modification to SORNA will not resolve all hurdles to substantial
implementation. Modifications to SORNA will create new and different
issues. As the SMART Office currently does, each jurisdiction must be
worked with individually to achieve success in a unique way.
The facts show that sex offender registration and a public registry
are highly valued by the public. In Calendar Year 2008, NSOPW had
nearly 5 million users and over 772 million sex offender files were
accessed. Currently SORNA provides a comprehensive system that gives
our children and families access to the same minimum level of
information regardless of where they choose to live, work and go to
school. SORNA was created because of the fact that sex offenders do
reoffend. It was never intended to reduce recidivism rates--because
only sex offenders themselves can change this statistic. SORNA and the
public registry are intended to allow families and individuals to
inform themselves regarding which sex offenders, both adult and serious
juveniles offenders lurks in their communities and, based on this
knowledge, to allow for informed decision making to occur. SORNA is
about accountability.
This statement will focus on three issues:
(1) the challenge to achieve SORNA compliance
(2) flexability for jurisdictions within SORNA, and
(3) the resources that are needed to fully achieve SORNA's
vital purpose.
1. SORNA compliance is challenging but achievable and on-track.
Currently, no jurisdiction has met substantial compliance. However,
this does not mean that SORNA, as currently constituted, is too
burdensome or unachievable. All this indicates is that the deadline for
compliance has not yet arrived.
Congress set July 27, 2009, as the initial compliance date. It also
built in two one-year extensions, extending the final deadline into
July 2011. When I left office in January 2009, several jurisdictions
had been working quickly and were extremely close to achieving
substantial compliance years in advance of the final deadline. Numerous
jurisdictions had already demonstrated enough progress to be granted an
extension. Information on the SMART Office website reveals that several
more jurisdictions have been granted since my departure.
The reality is that jurisdictions still have two years and four
months to substantially comply with SORNA. The Final National
Guidelines on Sex Offender Registration and Notification were only
published July 1, 2008. Dozens of jurisdictions have already submitted
new or amended legislation, compliance packages, tiering structures,
extension requests and other items for review to the SMART Office.
Jurisdictions will work within whatever time frame is available.
Extending the current time line will assure that many jurisdictions
will delay in the process of substantial implementation. The issue of
the necessity for an additional extension in addition to the two
already provided for in SORNA is not yet ripe.
The Attorney General is responsible for determining substantial
compliance by the jurisdictions with SORNA, and that duty was delegated
to the SMART Office. Prior to my departure from SMART, I was working
with the Office of General Counsel to put into formation the
establishment of a formal appeals process for jurisdictions which
disagreed with compliance decisions. During my tenure, we resolved all
issues through simple discussion. I expect that this informal and
pragmatic process will continue over the next two years until most or
all jurisdictions are compliant.
As a practical matter, the term substantial compliance means just
that; complying with the minimum standards as required by SORNA. It
does not, and has never in practice, meant total compliance. States
such as Louisiana, whom I had the privilege of working with, have held
an unreasonable and incorrect understanding of ``substantial
compliance.'' To ``substantially comply'' with SORNA, at jurisdictions,
at minimum must require persons convicted of offenses included under
SORNA to register in accordance with the minimum standards set by
SORNA.
Further, Congress included in SORNA a method to resolve any
conflicts that might exist between SORNA and a jurisdiction's
constitution. Prior to my departure, only two jurisdictions had
submitted potential conflicts to the SMART Office, and upon thorough
review, neither met the requirements for relief under SORNA.
2. SORNA offers significant implementation flexibility to
jurisdictions. The statutory language of SORNA, with respect to certain
sections was initially somewhat inflexible. Through the Final
Guidelines, I resolved many problematic issues and built in greater
flexibility to the system. The SMART Office received over 650 pages of
comments to the Proposed Guidelines. Those comments were quite helpful
and instructive. The open comment period, and the feedback we got
during that timeframe, guided us in the drafting of the Final
Guidelines. As a frontline child abuse prosecutor, I know how important
it is for guidelines and regulations to assist practitioners, not
hinder them.
Of all of the issues, the most common refrain we heard during the
public comment period to the proposed guidelines was the requirement
that juvenile sex offenders register. Congress originally wrote the
juvenile registration requirement to include registration of
adjudicated juveniles 14 years or older who committed acts of rape,
sexual acts against unconscious or intoxicated individuals and sexual
conduct against children under 12 years old. As written by Congress,
this section was highly problematic and did not make sense to many
jurisdictions and other stakeholders. I found the provision
particularly troubling. The comments provided during the publication of
the proposed guidelines echoed the same concerns. Working within the
confines of the law, I worked to ensure that the Final Guidelines allow
jurisdictions complete discretion regarding registering juveniles who
engage in low end ``consensual'' sexual conduct against children under
age 12. Now, only older juveniles who are forcible rapists and the like
are mandatory registrants under SORNA.
Congress wisely provided jurisdictions complete discretion to not
register statutory rape type offenders. Cases involving participants
are at least 13 years old with a partner not more than 4 years older
are not required to register under SORNA's registration scheme. If
consensual sexual activity does occur between partners with more than 4
years of separation, then prosecutors have several options: charge the
case as a felony qualifying as a tier II offense under SORNA; charge
the case as a misdemeanor;, or decide not to file the case. In many
cases, the best result from a local prosecutor exercising wise
discretion is not to file a case in the first case. SORNA does not
require any prosecutor to file any case. In most cases, when charged
most severely, the offender would be no more than a tier two-type
offender, but often a tier one offender and therefore not necessarily
required to be on a public registry.
Another example is the clean-record example. The clean record
exception allows tier one and adjudicated juvenile tier three sex
offenders to discontinue their registration obligations after
successfully completing four criteria as set out in the statutory
language of SORNA. As written, SORNA seemed to require mandatory
implementation by individual jurisdictions. Because some jurisdictions
that have registration systems that far exceed the minimum requirements
of SORNA, mandatorily requiring implementation of this exception would
cause some jurisdictions to completely overhaul their already well
functioning registration systems. Clearly SORNA's intent was to allow
great flexibility to the jurisdictions and not force already well
functioning systems to revamp. Through the Final Guidelines, we made
sure to give those jurisdictions far greater discretion and
flexibility.
A final example is SORNA's recordkeeping requirement. SORNA
appropriately requires all information be collected in a digital format
or be digitally linked. Many jurisdictions balked at the expense of
reacquiring all existing finger and palm prints in digital format.
After consulting numerous subject matter experts, we afforded
jurisdictions the flexibility to simply scan existing ink prints,
allowing them to avoid the significant costs of purchasing live scan
systems to achieve the same goal. This decision was made for two
reasons; first, it was good policy; and two, this decision can
significantly reduce the costs jurisdictions, such as Californias'
claim they must shoulder in order to be in substantial compliance.
These are just a few of the myriad examples of the flexibility that
we built into the Final Guidelines. As these examples demonstrate,
SORNA, as it is being implemented, is far from the inflexible system
that its critics paint it to be.
However, there is a significant hurdle to substantial
implementation that can be solved by Congress: the lack of funding.
Congress should provide resources to support the jurisdictions and the
SMART Office in their ongoing efforts.
3. My final point is that although SORNA is affordable, far more
resources are needed to achieve its promise. During my tenure, the
SMART Office created, paid for, and provided a secure communication
portal system to all 253 SORNA registration jurisdictions to allow full
compliance with SORNA for immediate communication and sharing of
information. On January 20, 2009, we made available to relevant
jurisdictions the Tribal and Territory Sex Offender Registry System
(TTSORS), which provides each tribe and territory an individual digital
sex offender registry fully connected to the NSOPW. In only a couple of
months, tribes have embraced this opportunity and approximately 35
tribes are currently testing the software and three tribes have
requested to be connected to the system. We created an automated
community notification system to allow for proactive notification to
the public when sex offenders register in a community, the ability to
conduct an email address search, a several mile radius search map where
sex offenders live, work and go to school and we renovated the NSOPW.
We did this all with a limited amount of staff and money; imagine what
we could have been achieved with adequate resources.
Another controversial issue is the retroactivity of SORNA. Congress
intended SORNA to provide a national blanket of comprehensive
standards. The only way to achieve this goal is to require all sex
offenders who are currently active in the legal system to be required
to register. Blindly excluding all sex offenders convicted prior to
July 2006 would significantly impact SORNA's effectiveness. The United
States Supreme Court has determined that retroactivity is
constitutional, as it regulatory and is not a punitive measure.
To clarify how the retroactive component works, SORNA does not
require jurisdictions to proactively seek out sex offenders that have
completed their registration requirements and that are not currently
registering or on some type of criminal supervision (parole/probation).
Only sex offenders currently registering, who are currently being
supervised or who are convicted of another crime are captured under
SORNA requirements. The retroactivity issue, though controversial now,
will ultimately fade away as more sex offenders receive convictions
post implementation.
SORNA does not control where a sex offender lives, works or goes to
school. It has nothing to do with residency restrictions which are all
the result of state and local legislation.
There is no workable alternative to a system like SORNA. SORNA is
an evidence-based system that requires registration based on the fact
that the sex offender has ALREADY been convicted of assaulting a real
person. There is a movement afoot however, to remove the evidence based
component of SORNA and replace it with a soft (and unproven) artifice
called ``risk assessments.'' Congress wisely recognized that risk
assessment tools should not used to determine if a convicted sex
offender should register--by guessing whether they will re-offend.
Rightly so, Congress recognized that risk assessments are not foolproof
and are not useful for juveniles. However, ``risk assessment'' tools
remain available for treatment purposes. Currently, only a minority of
jurisdictions use them for registration purposes, and it should remain
that way for good reason. For one reason, besides the obvious (they are
not reliable) there are an insufficient amount of trained professionals
available to appropriately administer risk assessment tools to all the
sex offenders in the United States.
SORNA is a strong law. It is part of the tool kit that child abuse
professionals need to protect children. It provides for a standardized
minimum level of sex offender registration and notification throughout
the United States. SORNA is not meant to be a panacea for sexual abuse,
assault, rape and sexual murders. It is meant to and does provide
information that allows parents and others to make informed decisions
regarding adult sex offenders and serious juvenile sex offenders who
reside, work and go to school in their communities. The amount of use
of the NSOPW demonstrates that the public has embraced the type of
knowledge and information that SORNA provides.
Thank you for the opportunity to provide my thoughts, and I am
eager to work with the Congress on this important issue in the future
in any way I can be of assistance.
__________
Mr. Scott. Thank you, Ms. Rogers.
We neglected to point out the timing device that is on the
table. We would like the witnesses to try to confine their
remarks to 5 minutes to the best of their ability.
Ms. Devillier.
TESTIMONY OF EMMA J. DEVILLIER, ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA,
CHIEF, SEXUAL PREDATOR UNIT, BATON ROUGE, LA
Ms. Devillier. I am here on behalf of Attorney General
Caldwell and the State of Louisiana. I am grateful to the
Chairman, to the Ranking Member and to the other esteemed
Members of the Subcommittee for the opportunity to testify
regarding the current barriers to the implementation of SORNA.
We are very grateful for your commitment to exploring and to
crafting the sex offender registration and notification policy
that works to enhance public safety.
I come before you this afternoon as someone who has been
and is currently a front-line prosecutor and is a
representative of an Attorney General who has 30 years of
experience as a front-line prosecutor. We understand the
difficulties involved in prosecuting child sex cases. We also
understand how registration issues affect our ability to
administer justice in those cases, and as parents, we
understand that we want to know if a predator lives next-door
to us, but we have to balance all of these interests. We
believe very strongly that SORNA did not get it right.
SORNA is not the pinnacle of good policy for sex-offender
tracking. In fact, in some respects, it is not good policy at
all. We all believe in mandatory sex offender registration and
in child predator registration. The devil, however, is in the
details. I am here to tell you why no State will be able to
come into compliance with SORNA, as defined by the current
Federal guidelines, by July of 2009, and I am here to
respectfully implore you to extend the deadline and to take a
hard look at what it will take to have an effective public
policy that will accomplish the goals of SORNA. It is important
to remember that all States will lose millions of dollars in
critical law enforcement funding through the Byrne Grant
program when we do not meet the July deadline.
Let us talk about some of those major goals. I encourage
all of you to please ask me questions so I can expound upon
this, but because of the limited time, I am going to have to
hit the highlights.
The final guidelines were not promulgated until June of
2008. That is 2 full years after SORNA was passed. The States,
therefore, have only had since June 2008 to be finally told
what it is they have to do. Louisiana has been working since
2006 and, actually, did not wait until the final guidelines
came out to attempt compliance, and yet we still stand here
today, having been found not to be in compliance.
The second hurdle is that the guidelines, once we did get
them, are impractical. Once the guidelines were published, it
became abundantly clear that what was expected of the States by
the SMART Office was impractical, ill-conceived, not advisable
for the good of the criminal justice system and, in some
instances, was not required by the congressional act itself.
Let me explain.
One of the impracticalities is that it requires all child
sex cases 25-year registration or lifetime registration. This
will definitely and has in Louisiana resulted in the lack of
ability to get pleas in difficult child sex cases. Remember
that registration of a sex offender presupposes that we have
convicted that person.
When you tell me that I have nowhere to go; I have a 7-
year-old-child telling me, ``Ms. Devillier, please do not make
me go to trial. Please find a way to get this guy to plea,''
and even though the courts have said this is regulatory and not
punitive, defendants do not see it that way. When that 25-year
registration or lifetime registration is an impediment to
getting a plea in a difficult case that I believe I will lose
or, because of which, I will re-victimize this child by putting
him through a public trial, I have got to have somewhere to go.
Right now, what is happening is that we are going to some
prosecutors outside of sex crime offenses to get that plea and
are just requiring registration as a condition of supervision.
It is a real problem, and it does not effect the policy that
you want to effect with SORNA. The requirement that tiering
should be based on underlying facts which are not necessarily
an element of the offense does not afford due process, and it
limits the flexibility that prosecutors must have in dealing
with tough cases involving traumatized child victims.
The guidelines say we have to look at the actual age of the
victim as to whether or not that is an element of the offense.
How can that possibly afford due process? That ties my hands as
a prosecutor in trying to get pleas.
The third hurdle is that the SMART Office's determination
in the guidelines deemed the substantial compliance in the
language of the act itself to be actual or strict compliance.
Basically, they are telling us that you have to adopt every
aspect of SORNA, or you are not going to be in compliance. This
leaves no room for the States to maneuver around and to
accommodate our unique criminal statutes and existing policies,
laws and procedures with regard to sex offender registration,
which many States have invested large amounts of resources
developing. And I submit to you that it completely ignores the
actual language of the act, which only requires substantial
compliance and not actual or strict compliance.
The fourth hurdle has been retroactive application of the
act. This will interfere with obtaining pleas in non-sex-
offense felony cases because it says, when a defendant comes
back into the criminal justice system, you can renew his old
registration requirements. It will affect being able to get
pleas in other types of felony cases.
And also, retroactive application will allow defendants
whose plea agreement legally included waiver of registration
because, before 1999, you could waive registration legally, it
will allow them--the courts in Louisiana have rules that they
can withdraw their pleas if you try now to make them do this,
because that was an inducement for them to give up their right
to a trial.
In conclusion, A.G. Caldwell and I urge the Members of the
Committee to consider an extension of the deadline for the
States to comply with the act, to establish task forces that
invite those like me and the other members of this esteemed
panel to talk to you about the issues involved and have the
input.
Even Ms. Rogers, the former director of the SMART Office,
has admitted, even though the intentions of those who crafted
the Adam Walsh Act were good, that they did not consult front-
line prosecutors, like myself, in that process. Not to do so
now would jeopardize the viability of the overall goal of
SORNA, and it would put States at imminent risk of losing vital
Byrne Grant dollars for worthy law enforcement programs
beginning in July of this year.
Thank you for your time. I welcome any questions that would
allow me to expound upon these comments.
[The prepared statement of Ms. Devillier follows:]
Prepared Statement of Emma J. Devillier
My name is Emma Devillier. I am here on behalf of Attorney General
James D. ``Buddy'' Caldwell, as an Assistant Attorney General for the
State of Louisiana where I serve as Chief of A.G. Caldwell's Sexual
Predator Unit. I come before you this afternoon as someone who has been
a frontline prosecutor of sexual offenders for over a decade and also
as a representative of A.G. Caldwell, who has thirty years of
experience as a frontline prosecutor. It should first be said that A.G.
Caldwell and I believe that establishing some uniformity among the
states regarding sex offender registration laws is a worthwhile goal.
Ultimately, a reasonable degree of uniformity will lead to increased
compliance by offenders and fewer legal defenses for those who continue
to be non-compliant. A.G. Caldwell and I also speak to you today as
parents, who want to know if there is a predator next door. As
prosecutors and parents, we understand what it takes to successfully
prosecute sex offender and child predator cases, how registration
issues affect the administration of justice in some of those cases and
we understand a parent's desire to have information that will allow
them to protect their children against such predators. We, however,
believe very strongly that SORNA, did not get it right. SORNA is not
the pinnacle of good public policy where sex offender tracking is
concerned. In fact, in some respects it is not good policy at all. When
you look at what Louisiana has done to craft and implement a tough and
targeted policy of mandatory sex offender registration which maintains
the integrity of the criminal justice system and does not impede the
administration of justice, it will become abundantly clear to you where
SORNA falls short of the mark and why states are having difficulty
adhering to it.
We all believe in mandatory sex offender and child predator
registration, but if we do not do it right we are helping the true
predators go undetected. The devil is in the details. I am here to tell
you why Louisiana has not and why other states probably will not come
into compliance with the current legislation and to respectfully
implore you to take a hard look at what it will take to have an
effective public policy that accomplishes effective tracking of sex
offenders and child predators while not impeding the administration of
justice.
A.G. Caldwell and I are grateful to Chairman Robert C. ``Bobby''
Scott, Ranking Member Louie Gohmert, and the other esteemed members of
the subcommittee for the opportunity to testify regarding the current
Barriers to Implementation of the Sex Offender Registration and
Notification Act (hereinafter referred to as ``SORNA'') and for your
commitment to exploring and crafting sex offender registration and
notification policy that works to enhance public safety.
The Office of the Attorney General of Louisiana suggest that the
Subcommittee delay the July 27, 2009 enforcement date of SORNA and
create task forces to examine the significant barriers to implementing
the Act. This is not just an arbitrary suggestion. It is an informed
and educated analysis developed over time.
The Hurdles of Implementing SORNA in Louisiana
I was the Assistant Attorney General responsible for coordinating
Louisiana's efforts to implement SORNA compliant legislation. In fact,
I was one of the first Assistant Attorneys General in the country to
work with the SMART Office when it first opened for business. Between
late 2006 and mid-2007, my office worked closely with all stakeholders
(District Attorneys, Sheriffs, Corrections officials, etc) to help
craft Louisiana's version of SORNA, House Bill 970, which passed in the
2007 Regular Session of the Louisiana Legislature which session
concluded in June of 2007. Because Louisiana was trying to comply
within the first year of passage of the Adam Walsh Act, key members of
the Louisiana Legislature and I had the dubious charge of trying to get
SORNA compliant legislation passed before the release of the SORNA
Final Guidelines. After passing HB 970 in the 2007 Regular Session,
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.'' Former Director of the SMART Office, Laura Rogers, stated that
Louisiana had failed to enact all provisions of SORNA.
In our Compliance Audit by the SMART Office, Louisiana was told
that in some instances HB 970 had exceeded what is required by SORNA.
By this time, Louisiana had no choice but to wait for the release of
the final guidelines to be issued before making another attempt at full
compliance. However, some, though not all, of the changes recommended
in the compliance audit were enacted in the 2008 regular session of the
Louisiana Legislature. The Final Guidelines were not released until
July 1, 2008, after the 2008 Regular Session of the Louisiana
Legislature and a full year after Louisiana had originally submitted HB
970 to the SMART Office. Additionally, Louisiana takes issue with the
guideline's interpretation of the substantial compliance language in
the Act to mean actual ( strict) compliance is required. There is a
huge difference in substantial compliance with the intended purposes of
the Act, versus actual compliance with the poorly drafted and
illogically formulated provisions of the final guidelines as
hereinafter discussed.
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 overinclusive, 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.
FIRST HURDLE: LACK OF TIMELY AND ACCURATE GUIDANCE
Louisiana seeks this extension because the implementation phase has
been delayed by lack of proper guidance from the SMART office. As
outlined previously, though perhaps through no fault of the SMART
office, there were undue delays by the SMART office in responding to
the request for guidance from Louisiana. Though our criminal statutes
were outlined to the SMART office before the beginning of our
legislative session in 2007, we did not get a response until well after
the session was over. Additionally, this response was not a firm one as
the final guidelines were not published until after the end of the 2008
legislative session. After reviewing the final guidelines, Louisiana
believes in some instances they are ill conceived and are not practical
or advisable for the good of the criminal justice system and Louisiana
seeks this extension in order have an opportunity to discuss these
issues with the Congress. Even former Director of the SMART office,
Laura Rogers, in her recent comments to the Surviving Parents
Coalition, agrees that though the drafters of the Adam Walsh Act had
good intentions, ``they did not consult professional child abuse
prosecutors or those with frontline experience and knowledge.'' Having
been a legislator, I am acutely aware that even with the best
intentions and the best attempt to consult all stakeholders, mistakes
in the drafting of legislation is difficult to avoid, particularly when
it is as comprehensive as the Adam Walsh Act. Those mistakes are
inevitable and understandable. What would not be understandable is not
addressing those mistakes once they become apparent.
SECOND HURDLE: GUIDELINES ARE NOT PRACTICAL
The final guidelines indicate that all state sex offenses must be
``tiered'' by comparing the state sex offense to the described federal
offense to determine if the state sex offense is comparable to or more
severe than the federal offense. This is fairly consistent with the
AWA. However, the problem comes in the interpretation as to how that
comparison is performed. The problem in trying to compare our offenses
to the federal offenses is that the federal offenses differentiate
seriousness based on facts not necessarily made elements in the State
definition of the crime.
To understand the problem you will first have to understand that
the Federal statutes to which the state statutes are to be compared are
distinguished between sexual acts and sexual contact and require
categorization based on the method used (physical force/drugs) to
complete the sexual act or contact and the age of the victim. For
example the guidelines require that any offense which involves force
and penetration must fall into tier 3 and require lifetime registration
and any offense involving penetration or any type of sexual touching
(through the clothes or otherwise) of a child under 12 requires
lifetime registration whether or not force or drugs were used to
accomplish the task. Given that requirement, in which tier should
Louisiana's indecent behavior statute be categorized? The indecent
behavior statute in Louisiana requires lewd and lascivious behavior
upon the person or in the presence of a child under the age of
seventeen when there is an age difference of greater than two years
between the child and the perpetrator. The elements of the indecent
behavior do not necessarily include a sexual act (penetration or direct
touching of the genitals) or sexual contact (fondling of genitals
through the clothing). Indecent behavior could be accomplished by
performing a sexual act in the presence of a child. A good prosecutor
will not list the nature of the lewd or lascivious behavior except to
state that it happened upon the person OR in the presence of a child
and that the child was under the age of sixteen and the perpetrator was
more than two years older. The prosecutor will always only plead the
facts he necessarily has to prove because he will be held to whatever
facts are alleged.
The SMART offices compliance audit of Louisiana's 2007 legislation
stated that Indecent Behavior should not be listed as a tier I crime
(requiring 15 years of registration) because it could involve a sexual
act or contact with a minor. The audit stated that this crime should be
listed as a tier II (requiring 25 years of registration) and, if the
victim was under the age of 12, it should be listed in tier III
(requiring lifetime registration). The audit and the final guidelines
state that the age of the victim should be controlling as to the tier
of the offense, whether or not it is an element of the offense. This is
not enforceable. If the age of the victim is not in the bill of
information how will you hold the offender accountable for a fact that
has not been established in a court of law? The guidelines state that
you will have to look at the underlying facts of the offense to
determine the age of the victim. How does this possibly afford due
process? Basically, the guidelines seem to be stating that we must
allow some bureaucrat to determine what the underlying facts of a
conviction were and then apply the appropriate tier to that offense
based on the determination of this bureaucrat. We are essentially
basing an offender's future legal obligation to register on facts that
have not been established in a court of law. Because SORNA requires
that time period of registration and number of in-person renewals per
year be tied to the elements of the offense of conviction, the
Louisiana legislature thought it necessary to have a judicial
determination of these facts. Therefore, we placed offenses in tier I
which did not necessarily include the types of elements described in
SORNA for tier II and tier III placement. The SMART office's test was
the opposite, if the elements of tier II or tier III were not
necessarily excluded, then it should be placed into the higher tier.
This means all offenses involving a child victim must require a 25 year
or lifetime registration period.
If no crimes against children are left in tier I, i.e., indecent
behavior with a juvenile, prosecutors who run into difficulty with a
reluctant and terrified victim will have to go outside of the sex
offense statutes to accomplish a plea where there will be no resulting
sex offender/child predator registration required. Even though the
courts have ruled that registration is regulatory and not intended to
be punitive, the courts did recognize that registration does have
punitive effects. When these punitive effects interfere with getting a
plea in a child sex case because the offender refuses to plead to
anything that requires 25 year or lifetime registration and you have no
sex offense in tier I that you can offer because your victim is seven
and traumatized about trial, the prosecutor will go outside of the
child sex crimes statutes to effectuate a plea. This is not based on
laziness or not caring, it is based on the realities of what we, as sex
crimes prosecutors, deal with on a regular basis in trying to seek
justice while not re-victimizing the victim.
Registration is supposed to be a product of a conviction. In order
to maintain prosecutorial discretion which is essential for the
administration of justice, if registration is to be offense based, it
must be based on the facts as alleged in the bill of information. If
the facts in the bill of information leave doubt as to the specific act
involved or the specific age of the victim which would establish that
the offender's actions were of the type described as a tier II or tier
III offense, then the offense should be categorized in tier I.
Sex cases involving minor victims are the most difficult cases to
prove. Often your whole case comes down to the word of a child versus
that of an adult. Many of these offenses are not reported until the
perpetrator (often a family member) is separated from the victim
through divorce or a change in living circumstances. There is rarely
any physical evidence. The child is often reluctant to participate in a
public trial. We cannot mandate sex offenders register until we convict
them. Good public policy will not impede a prosecutor's ability to get
a plea is these most difficult cases. The current requirements of SORNA
will impede this process much to the detriment of public safety and
criminal justice.
THIRD HURDLE: SMART OFFICE DETERMINATION THAT SUBSTANTIAL COMPLIANCE
MEANS ACTUAL (STRICT) COMPLIANCE
Louisiana addressed some of its concerns outlined above by banking
on the ``substantial compliance'' language of the act. The substantial
compliance language, we thought, would allow us to leave certain child
sex cases in tier I so that prosecutors would have a place to go in
child sex cases in which the victim recants or indicates that a trial
is not something they can handle and registration for 25 years or life
was a deterrent to getting a plea as charged. Again, even though the
courts have found that registration is not part of the punishment for a
crime but is regulatory, offenders surely do not see it that way. It is
particularly burdensome in Louisiana because we require, in addition to
publication of the information on the registry, that the offender send
a post card with his picture and the details of his conviction to all
of his neighbors within a certain radius of his home. This must be done
every time the offender changes addresses and every five years, whether
or not the offender has a change of address. Additionally, we require
offenders to carry a driver's license or identification card with SEX
OFFENDER in red letters across the bottom of the offender's photo.
Also, in Louisiana, no matter the tier of your first sex offense
conviction, a second conviction will require lifetime registration.
Still further, if the offense of conviction requires registration for
any period less than life, the prosecutor upon showing by a
preponderance of the evidence that the offender poses a substantial
risk of re-offending, the court may order the offender to register for
life. All of these additional provisions go far beyond what is required
by SORNA. By determining that ``substantial compliance'' means strict
compliance, the SMART office has taken away Louisiana's ability to
address the problems outlined above in a fashion that does no harm to
the intent of the act. To the contrary, we believe that what Louisiana
has done actually enhances public safety by maintaining prosecutorial
discretion and targeting resources towards the worst offenders.
Louisiana submits that no where in the Adam Walsh Act does the Act
require strict compliance or suggest that these are minimum standards
which must be adhered to religiously. Such a requirement is unrealistic
and impractical.
FOURTH HURDLE: RETROACTIVE APPLICATION OF THE ACT
With respect to sex offenders whose convictions predate the
enactment or implementation of SORNA, the Guidelines require that a
jurisdiction register the following offenders: (1) those who are
incarcerated or under supervision for the registration offense or for
some other crime; (2) those who are already subject to a pre-existing
sex offender registration requirement; and (3) those who subsequently
reenter the jurisdiction's justice system for a conviction for some
other crime, even a non-sexual offense.
One of the practical problems with this retroactive provision is
that it fails to give proper guidance to enable law enforcement to
identify such offenders and to classify them in a tier. When the
requirement of retroactive application of SORNA is taken into
consideration, the problem of ``tiering'' offenses becomes even more
evident. Even if the age of the victim or specific facts relating to
the offense are put forth in the Bill of Information, law enforcement
agencies tasked with enforcement of registration laws will spend
countless man hours tracking down bills of information, often from out
of state convictions, trying to ascertain the facts alleged in each
bill rather than just looking at the criminal statute violated in the
conviction to determine if it necessarily includes a forced sexual act
or sexual contact with a child under the age of 12.
Retroactivity as required by the guidelines is also problematic in
that it requires an offender who has long ago finished his legal
obligation to register to register once again if he is subsequently
convicted of any felony. States do have the discretion to give the
offender credit for the time that has elapsed since he last registered,
but that is small solace to an offender who under SORNA will have to
register for life if convicted of the subsequent felony. Prosecutors
have real concerns about the effect of this provision on the ability to
get pleas in cases having nothing to do with a sex offense. For
example, an offender who has a felony theft charge pending who twenty
five years ago was convicted of indecent behavior with a juvenile under
the age of 12, will, if convicted of the felony theft charge, have to
register again for the rest of his life, under the current requirements
of the guidelines. Louisiana, therefore, adopted a limited
retroactivity provision making the new registration periods applicable
to all sex offenders who were under an active obligation to register as
of the effective date of the act. Retroactivity was also limited in
Louisiana because prior to 1999, a Judge could legally waive sex
offender registration and many did, as part of a plea agreement. There
was real concern that convictions could be overturned if the new
registration statute was made to apply to these offenders. There is
Louisiana case law supportive of the offender's right to withdraw his
plea if the waiver was part of the plea agreement.
Furthermore, I ask you, how will juveniles who never had an
existing duty to register be subjected to the Act? How would we find
them? Louisiana, therefore, adopted a prospective only application for
a very limited number of juvenile offenders age 14 and above
adjudicated or convicted of only the most heinous acts--aggravated
rape, forcible rape, 2nd Degree Kidnapping of a child under 13,
aggravate kidnapping of a child under 13, aggravated incest involving
penetration and aggravated crime against nature.
Another issue stemming from the retroactive provision of SORNA is
the ``recapturing'' of offenders. Once a jurisdiction enacts SORNA
legislation, that jurisdiction is required to ``recapture'' and
register ``retroactive'' sex offenders within the following time
frames'' Tier I offenders within one year; Tier II offenders within six
(6) months; and, Tier III offenders within three (3) months. How is
this to be accomplished? We can barely keep up with the ones we know
about now given our limited resources.
Compliance Issues Plaguing Other Jurisdictions
I participate in a national sex offender management listserv and
have engaged with other offices of Attorneys General through the
National Association of Attorneys General to discuss issues related to
SORNA implementation. Through this process I have learned that not only
Louisiana but many other states are experiencing the same or similar
difficulties as evidenced by the failure of any state to achieve
substantial compliance as of this date. In addition to the above issues
faced by Louisiana, discussions with other States through NAAG and
otherwise, have raised other issues with regard to AWA compliance which
need to be considered:
1) Many States currently have risk-based assessment schemes to
determine the length and conditions of registration rather than
offense-based schemes in which they have invested lots of time
and money and which they believe accomplish the same goal as
the AWA but just arrives there through a different avenue.
These States have indicated that, at least informally, the
SMART office has indicated that they will have to switch to an
offense based scheme or be deemed to be non-compliant.
Massuchusetts has jurisprudence which establishes that sex
offenders have a state constitutional right to a risk
assessment before being placed on a public registry.
2) Most other States have indicated similar problems with
retroactivity as faced by Louisiana.
3) Some States are concerned that the inclusion of the sex
offender's employment address and school address will impede
reintegration of sex offenders into the community by making it
much more difficult to obtain employment, de-stabilize
offenders and be counter productive to public Safety.
4) Some States are concerned that quarterly registration will
divert law enforcement resources away from the more important
public safety task of compliance checks to do less important
administrative tasks.
5) The requirement that the States get palm prints which can
only be provided by agencies that use Livescan technology will
prove too expensive and difficult for all registering agencies
to acquire.
6) Whether those States who allow a sex offender to be
relieved of the obligation to register by obtaining a
certificate of rehabilitation will, due to the retroactivity
requirement, have to revive those obligations. (The SMART
office has now said any provisions to relieve an offender from
registration before the allotted time periods in the AWA would
not be in substantial compliance with the AWA)
7) The significant cost of compliance versus the loss of Byrne
funds. SORNA Compliance motivated by loss of Byrne Funds
8) Some States have significant concerns about juvenile
registration based on their constitutions, on public opinion or
on their juvenile systems which are design to not permanently
label a child in hopes of rehabilitation.
Conclusion
As a State AG, we support the idea of having more homogeneous sex
offender registration laws across the nation. Louisiana specifically,
submits that it has achieved ``substantial compliance'' as required by
SORNA because we disagree with the SMART office's interpretation of
that language in the ACT to mean strict compliance. However, any such
federal attempt to help all state's achieve this goal must take into
consideration the varying states' current substantive criminal statutes
and the varying sex offender registration laws and policies with the
goal of making enforcement of such laws when an offender crosses state
lines more feasible. To ensure that federal legislation in this regard
is based on sound public policy and that it will be effectively
implemented, all stakeholders must be brought to the table.
In addition to the issues highlighted above there are many more
which need discussion. Not the least of which is SORNA's inadequate
provision of sex offender registration computer programs to
jurisdictions. The program made available only addresses the needs of
the central registry in each jurisdiction. SORNA fails to recognize
that the central registries would have no information but for the
information provided by local law enforcement agencies which actually
register the offenders. In order to meet the time restrictions required
by SORNA on transfer of registration information from the local sex
offender registrar to the central registry, local law enforcement must
have the ability to transfer this information electronically. No
provisions in the act address this essential element. Louisiana has
addressed this by imposing a fee on all felony probationers which is
paid into a technology fund to support the implementation of a web-
based program for the collection, storage and transfer of this data to
our central registry at no cost to the tax payer. We not only believe
we are substantially compliant with SORNA we believe we have far
exceeded its goals.
Respectfully, Attorney General Caldwell and I urge the members of
this Subcommittee to consider an extension of the deadline for states
to comply with the Act, the establishment of a task force comprised of
prosecutors, law enforcement, state registries, corrections, experts in
the field of sex offender management, victims and all other
stakeholders in this complex issue to examine the practical effects of
the Act on public safety and possible reform to address the concerns
raised here and those recommended by the task force. Not to do so would
jeopardize the viability of the overall goal of SORNA and would put
states at imminent risk of losing vital BYRNE grant dollars for worthy
law enforcement programs beginning July of 2009.
__________
Mr. Scott. Thank you.
Ms. Carter.
TESTIMONY OF MADELINE M. CARTER, PRINCIPAL, CENTER FOR SEX
OFFENDER MANAGEMENT, CENTER FOR EFFECTIVE PUBLIC POLICY, SILVER
SPRING, MD
Ms. Carter. Thank you.
Good afternoon, Chairman Scott, and Members of the
Committee. I want to thank you for convening this hearing and
for offering me the privilege of speaking to you.
I want to acknowledge the enormous respect I have for the
other witnesses at this table. Each of us comes to this table
with a unique background. As a result, we may see this issue of
sex offender management through a different lens and perhaps
have divergent thoughts about the most beneficial public policy
approach. I am certain, however, that we all share the same
goal, to prevent sexual victimization.
I am a principal with a nonprofit organization. For 26
years, we have worked with government officials across the
country to advance sound policy solutions in criminal justice.
Twelve years ago, we were awarded funds by the Justice
Department to establish the Center for Sex Offender Management.
I am its director.
Our mission is to prevent further victimization by
improving the management of adult and juvenile sex offenders.
We have worked with professionals throughout the country to
understand and to translate research into practice. Our goal is
to support efforts to end sexual violence. As a professional,
as a mother, and as the victim of an attempted rape when I was
a youth, I, like you, have a major stake in the safety of
victims and of potential victims. I have five points to share
that I believe can guide us in our collective thinking on this
matter.
Point one, sex offender policy and practice should be
evidence-based. Today, following three decades of extensive
research, we have a wealth of knowledge about the factors
associated with re-offense risk and methods to intervene with
and to reduce that risk. This research should shape our public
policy because it can result in fewer new crimes. It has shaped
practice in local communities across the country for more than
a decade. The results are promising and in need of ongoing
support and study.
Point two, not all sex offenders are alike. One of the
fundamental problems in our field is that we tend to paint all
sex offenders with the same brush. Professionals have long
recognized key differences among them. These differences relate
to the types of crimes they commit, to the victims they target,
to their risk for re-offense, and to the types of interventions
that will most likely reduce their risk.
These differences have important implications. For example,
among adult sex offenders, while some are extremely dangerous,
others can be safely managed in the community. Research further
distinguishes adult sex offenders from juveniles who are
developmentally quite different from adults. These findings
suggest that a one-size-fits-all approach is inappropriate. A
more tailored approach is called for. I respectfully recommend
that this Committee support further examination of the
differences between these offenders and the interventions
needed to prevent future crimes.
Point three, risk assessment is an important tool in our
management arsenal. A one-size-fits-all approach is not
appropriate. We need a way to distinguish among offenders.
Until recently, we had no choice but to categorize offenders
primarily on the basis of the offenses they had committed.
Risk-assessment instruments offer a scientifically based method
to distinguish among individuals. Today, many States use
actuarial tools to differentiate between offenders. I encourage
you to establish a commission to examine the use of risk
assessment to guide the tiering of sex offenders for the
purposes of registration and notification.
Point four, there is no silver bullet. We want desperately
to find the silver bullet that will solve the problem, but
there is no single answer to the problem of sexual violence. We
have developed a comprehensive policy framework. It is built on
research and a set of core values, the most fundamental of
which is victim protection and safety. It acknowledges that
there are many elements involved in effectively managing sex
offenders. Research suggests that some of the strategies are
more powerful in reducing risk than others.
For example, the evidence suggests that a combination of
sex-offender-specific treatment and community supervision can
increase public safety. Thus far, the research on registration
and notification has not demonstrated similar results. More
study is needed. From a public policy perspective, we should
invest our limited resources in those strategies that show
promise for reducing re-offense and, at the very least, be
judicious in our investment in options that do not.
Point five, we should use research and experience to build
our approach to reducing victimization. We know from experience
that we can hold offenders accountable while providing support
and safety to victims. Most importantly, we know we can reduce
the likelihood of new sex crimes.
To achieve those goals, we must be deliberate. Some of the
efforts in the past in the name of public safety have proven
ineffective. We should let go of those. Others hold promise for
recidivism reduction, and we should embrace these.
Let me conclude by reiterating that my goal is to prevent
future sexual violence. To this end, I endorse efforts to
reconsider any provisions of SORNA that are not supported by
research, to advance policy around those strategies that are
evidence-based and to expand our national research agenda in
the area of sexual violence. Congress can provide important
leadership to the Nation on this critical issue.
I and my colleagues across the country would be most
pleased to partner with you to understand how best to implement
these approaches strategically to end sexual violence. Thank
you.
[The prepared statement of Ms. Carter follows:]
Prepared Statement of Madeline M. Carter
Good afternoon Chairman Scott and members of the Committee. My name
is Madeline Carter. I want to begin by thanking the Committee for
convening this hearing and for offering me the privilege of addressing
you. I also want to acknowledge the enormous respect I have for the
other witnesses who are speaking today. Each of us comes to this issue
with a unique background and set of experiences--including law
enforcement, prosecution, defense, and victim advocacy. As a result we
may see the issue of sex offender management through different lenses
and perhaps have divergent thoughts about the public policy approach
that will result in the greatest benefit. I am certain of one thing
however: that we all share the same goal-to prevent sexual
victimization.
Let me begin by saying a few words about my background. I am a
Principal with a non-profit organization in Maryland. For 26 years we
have worked with state and local government officials across the
country to advance sound policy solutions within the criminal justice
system. Nearly 12 years ago we were awarded funds by the Justice
Department to establish the Center for Sex Offender Management. I have
served as its director since that time.
CSOM's mission is to enhance public safety by preventing further
victimization through improving the management of adult and juvenile
sex offenders. Over 12 years, we have produced nearly 40 policy and
practice briefs and other resource documents; trained nearly 50,000
professionals; and provided training and technical assistance to
officials in almost every state. We do not conduct original research
ourselves. Our role is to assist policymakers and practitioners in
understanding the research and translating its findings into policy and
practice.
I want there to be no misunderstanding about the purpose of our
efforts. We do not view ourselves as advocates for anything more than
sound policy approaches that result in safer communities. Our goal is
to support efforts to end sexual violence. I personally am deeply
concerned about the threat posed by sexual violence. I am a
professional in this field and also the mother of two children. I pray
they never experience sexual assault. I am a friend to many who have,
and as a young teenager I was the victim of an attempted rape by an
individual that was described to me by police as most likely a serial
rapist. Like you, I have a major stake in the safety of victims and
potential victims and the safety of our communities.
I would like to share with you five points that I believe can guide
our collective thinking on this matter.
Point #1: Sex offender policy and practice should be evidence
based. When empirical research is applied to both policy and
professional practice it is referred to as evidence-based policy or
practice. Today, we have a wealth of knowledge about the factors
associated with recidivism risk, and methods to intervene with and
reduce that risk. Important and extensive research regarding criminal
offenders, including sex offenders, has been conducted over the past
three decades.
Within the context of this hearing it is not possible to reasonably
review all of the significant findings, although I and perhaps some of
my colleagues will touch upon a few major findings. The point I want to
make at this moment, however, is an important and over-arching one:
that there is a wide body of research that can and should shape public
policy because it can increase public safety by reducing new crimes,
including sexual offenses.
This research has shaped practice in local communities across this
country over the last decade or more. The results are promising and
need ongoing support and evaluative study.
Point #2: Not all sex offenders are alike. Perhaps one of the most
illuminating research findings relates to the label ``sex offender.''
One of the fundamental problems in our field is that we tend to paint
all sex offenders with the same brush when professionals in the field
have long recognized key differences among these offenders. These
differences relate to the types of crimes they commit and the victims
they target, the pathways that lead to their abusive behavior, the
degree to which they are motivated to change, their risk for
recidivism, and the types of interventions that will most likely reduce
their risk for reoffense.
These key differences have important implications. For example,
among adult sex offenders, research tells us that some are at higher
risk to reoffend than others. While some are extremely dangerous others
can be safely managed in the community. Research further distinguishes
adult sex offenders from their juvenile counterparts: Juveniles are
developmentally different, have lower recidivism rates, and seem to
respond well to treatment.
These research findings suggest that a ``one size fits all''
approach to sex offender policy is inappropriate. Instead, a more
tailored and strategic approach is called for.
I respectfully recommend that this Committee support further
examination of the differences between juvenile and adult sex
offenders, and the treatment, supervision, and other supports needed to
prevent specific sub-populations of offenders from committing new
crimes.
Point #3: Risk assessment is an important tool in our management
arsenal. If a one size fits all approach is not appropriate, we need a
way to distinguish among sex offenders. Until recently, we had no
choice but to categorize offenders primarily on the basis of the
specific offense they had committed. Risk assessment instruments offer
a scientifically-based method to distinguish important differences
among individuals. While these tools are not perfect, they have been
consistently demonstrated to be more reliable than professional
judgment.
Given the significant advances in research-both in terms of our
understanding that sex offenders are not all alike, and in terms of our
ability to distinguish sex offenders from one another through the use
of risk assessment tools--a tailored approach to sex offender
management, based upon risk to reoffend, should be employed to all of
our sex offender management strategies.
The road to moving the criminal justice system from an offense-
based to a risk based system, not only for sex offenders but also with
other offender types, has been a long one. Today, many states use
actuarial risk assessment to differentiate between offenders; resource
allocation and management strategies are deployed accordingly. I
encourage this Committee to consider establishing a commission to
examine the use of actuarial risk assessment tools to guide the tiering
of sex offenders for registration and notification purposes.
Point #4: There is no silver bullet. We want desperately to find
the ``silver bullet'' that will solve this problem, but there are no
silver bullets--there is no single answer to the problem of sexual
violence. It is much too complicated for any one solution.
CSOM has developed a model policy framework for sex offender
management. We call it the Comprehensive Approach. It is built on solid
research and a set of core values, the most fundamental of which is
that our efforts should focus squarely on victim protection and safety.
The Comprehensive Approach acknowledges that there are many elements
involved in an effective approach to protecting public safety: thorough
investigative practices; appropriate charging and plea negotiations;
informed sentencing; and management practices based in research around
assessment, treatment, and institutional and community management.
Among these elements are registration and notification. Research
suggests that some of the strategies that we have at our disposal are
more powerful tools in reducing recidivism than others. Admittedly the
research is not yet complete; there is still much we do not know. But
thus far, the evidence suggests that a combination of sex offender
specific treatment and community based supervision can increase public
safety by reducing new sex crimes. Thus far the research on
registration and notification has not demonstrated the same results.
Therefore, the research suggests that we cannot rely on this as our
only strategy, and it also suggests that we should invest our limited
resources in those strategies that show promise for greater public
safety by reducing new sex crimes and, at the very least, be judicious
in our investment in options that do not.
Point #5: We should use the lessons of research and experience to
build a better, stronger approach to reducing victimization. There was
a time not too long ago when little was known about sex offenders. I
still remember it well. When we established CSOM, the research was
scant. The professional opinions were oftentimes in sharp disagreement.
Our first step was to bring all the voices in the field together. With
their help we identified promising practices, synthesized the research,
and built an approach that offered the promise of reducing future
victimization. As we have learned more, the approach has evolved. We
still have more to learn.
But some things we already know. We know that some of the efforts
we have made in the past in the name of public safety have proven
ineffective. We should let go of those. Others hold promise for
recidivism reduction. We should embrace these.
We know now from more than a decade of experience working with
communities all across the country that we can hold offenders
accountable; we can provide victims with support and safety, and
partner with them in our efforts to increase public safety. Most
importantly, we know from research that we can reduce the likelihood of
new sex crimes and the harm that it causes. But to achieve these goals,
we must be thoughtful and deliberate in our strategy. We must bring all
of the stakeholders together. We must evaluate the extent to which each
community's efforts align with research. We must provide information
and training to professionals; educate our communities; and fully
invest in strategies proven effective. These are the lessons of more
than a decade of work that guides us to meaningful solutions. These
lessons are documented in several of the written materials I have
supplied along with my testimony. I and my colleagues across the
country would be most pleased to partner with you to understand how
best to implement these approaches to sex offender management
strategically on a national basis.
In closing let me say that my first and only goal is to prevent
future sexual violence. To this end, I support efforts to reconsider
any provisions of SORNA that are not supported by research; to advance
policy around those strategies that are evidence based; and to expand
our national research agenda in the area of sexual violence prevention.
Congress can provide important leadership to the nation on this
critical issue. I thank you for your concern over this matter and look
forward to joining forces with you to end sexual violence.
ATTACHMENT
__________
Mr. Scott. Thank you.
Mr. Allen.
TESTIMONY OF ERNIE ALLEN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN,
ALEXANDRIA, VA
Mr. Allen. Mr. Chairman, I have submitted written
statement. With your permission, I will summarize briefly.
As you know, the National Center was honored to have been
one of the organizations consulted by bipartisan congressional
leaders on the Adam Walsh Act, and we believe strongly today
that this is vital legislation to keep America's children safe.
We know how serious the problem is. We at the National
Center have handled 667,000 reports of child sexual
exploitation through our congressionally mandated cyber tip
line. Our child victim identification program has reviewed in
the past 5 years 21 million child pornography images and videos
depicting the sexual abuse of children. Our analysis unit is
receiving requests from State law enforcement, from the U.S.
Marshal Service to help in the location of missing or
noncompliant sex offenders.
In our last survey of State sex offender registries a month
or two ago, we found that there are today 673,989 sex offenders
in this country required to register. Our estimate is that at
least 100,000 of those offenders are noncompliant, many of them
literally missing. Many States do not know how many offenders
are noncompliant or are missing.
We also partner with ICE, Immigration and Customs
Enforcement, in an effort called Operation Predator, which has
resulted in 12,000 arrests nationwide, 85 percent of whom are
noncitizen sex offenders, 6,300 of whom have been deported.
Congress passed the Adam Walsh Act, and we were supportive
for one primary purpose, and that is to create a uniformed,
consistent national approach to this problem. There is a
stunning lack of consistency, resulting in gaps and cracks in
the system which the most serious offenders exploit. By
requiring States to enact more uniformed State laws, we felt
that this would prevent more offenders from forum shopping in
order to remain anonymous.
The States and jurisdictions are trying as you have heard.
Working with the SMART Office, 38 jurisdictions have submitted
materials for review. Twenty-three have been granted 1-year
extensions. A few States have announced that they have
implemented SORNA, but only the SMART Office is authorized to
make an official determination of that implementation.
Our premise, our message to this Committee today, is very
simple: As essential and historic as we believe the Adam Walsh
Act is, it is not going to be effective without the
appropriations necessary to implement it.
When we first discussed this legislation, a prominent
sponsor, an advocate in the Senate, said, ``This legislation is
essential, but show me the money. If we do not fund it, it is
meaningless.''
From the beginning, everyone understood that these changes
would be difficult and that the States would need help. The
bill authorized that help and much more. The Congressional
Budget Office scored a version of the act at more than $1
billion over 5 years. In the 3 years since its passage,
virtually none of those funds have been appropriated. There has
been some funding through the Iraq supplemental to the U.S.
Marshals, and the SMART Office has provided some grants to help
with compliance and some training as well as some support for
juvenile sex offender treatment. It is important to note that
the failure to appropriate the funds happened due to larger
issues and conflicts completely unrelated to the Adam Walsh
Act.
We are grateful to Chairman Alan Mollohan and to the
Members of the House CGS Appropriations Committee and to
Senator Barbara Mikulski and to Senator Richard Shelby, who
have continuously provided seed money in the appropriations
bills, but it has been 3 years since the passage of the Adam
Walsh Act since there has really been an appropriation. The
funding has not happened.
Providing the funding, in our judgment, is the key to being
able to implement this critical system fairly, objectively and
thoroughly. However, with the compliance date looming and with
essentially no funding having been provided to date, we believe
it is imperative that Congress act to keep the Adam Walsh Act
alive through extending the deadlines for compliance. We
understand that resources are scarce and that there are many
competing demands. However, it is hard to imagine a greater,
more pressing priority.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Ernie Allen
__________
Mr. Scott. Thank you.
Mr. Lunsford.
TESTIMONY OF MARK LUNSFORD, FATHER OF JESSICA LUNSFORD, THE
CHILD VICTIM OF A SEX OFFENSE AND MURDER, HOMASASSA, FL
Mr. Lunsford. My name is Mark Lunsford.
I am Jessica Lunsford's father. I turned in a statement
explaining what happened to Jessie, and if you read through it,
you will clearly see the failures in notification and
registration and how my daughter's death became.
John Couey, convicted sex offender, arrested 23 times or
more in his 46 years of life. He took my little girl, raped her
and put her in a trash bag, alive, and buried her alive. I am
sure that, when she was dying, she was crying for me. I can
still hear her cries. As a parent, I will never be able to get
over the grief of knowing that she was only 150 yards away from
her own bedroom while I prayed for her. Her death was a result
of a system that failed her and us, for if we had tougher laws
for registration and good programs for notification, this may
have prevented her death.
Although John Couey was on probation, his probation officer
did not even know he was a convicted sex offender. The
Sheriff's Department was advised by the Attorney General's
Office 3 months before the kidnapping to round up all the
absconded sex offenders. John Couey was on that list but never
arrested until the death of my daughter.
Through tougher sexual offender registration and tracking
systems, properly funded and enforced, may have protected my
daughter and will protect other children. In Florida, the law
is so slack that the public is only notified of sex offenders
when they move, and that is at the discretion of each Sheriff's
Department how they notify you. The public is not notified when
a sexual predator moves. So we need better notification for the
public. We must know where every John Couey is so we can take
the necessary steps to protect our children.
In addition to the strict registration system, Congress
must empower law enforcement to go after these guys. If law
enforcement is not empowered and funded to go after these
predators, the system fails us all again. Additionally, if we
are not going to empower law enforcement, as has been the case
in failing to fund the Adam Walsh Act, the registration and
notification becomes that much more important so that fathers
and mothers have the information they need to protect their
children.
How can we say that it will not work or does not work until
we fund it properly and explore what tweaks we need to make to
it?
John Couey, a two-time convicted sex offender, on
probation, wore a tracking device. During his time of wearing
that tracking device, we always knew where he was at. He
registered. He played by the rules. He did everything that he
was supposed to do. In November, when they took the tracking
device off of him, he had absconded. It is simple. You as
legislators and all organizations, regardless of what
organization you are with, all believe in one thing, and that
is the rights of children. These children have the right to a
safe and protected life, and until we implement the right
funding and the right programs for notification and
registration, our children will continue to pay the price. This
is not fair. There is not anything fair about it at all. Why do
the children have to pay the price for our mistakes? Thank you.
[The prepared statement of Mr. Lunsford follows:]
Prepared Statement of Mark Lunsford
__________
TESTIMONY OF ROBERT SHILLING, SEATTLE POLICE DEPARTMENT, SEX
AND KIDNAPPING OFFENDER DETAIL, SEXUAL ASSAULT AND CHILD ABUSE
UNIT, SEATTLE, WA
Mr. Shilling. Mr. Chairman, Committee Members, guests, I'm
honored to be given the opportunity to testify today. My name
is Bob Shilling, and I'm a 29-year veteran of the Seattle
Police Department. I've spent the last 19 years as the
detective in the Special Victims Unit, Sex and Kidnapping
Offender Detail. I've written or coauthored 12 pieces of sex
offender legislation that have been passed into law in
Washington State, and testified on the Community Protection Act
of 1990, which became the first community notification law in
the United States. I'm the only municipal law enforcement
officer in the United States who is a member of the Interpol
Specialists Group on Crimes Against Children. I currently serve
as Chair of the Sex Offender Management Theme Group.
My experience protecting the public from sex offenders
spans two decades. It is not a job to me, it is a passion.
Perhaps my most significant experience related to this work
comes from the fact that I'm a survivor of childhood sexual
abuse. The abuse spanned a 4-year period and, without question,
marks the darkest days of my life. I have dedicated my life to
doing whatever I can to stop sexual abuse not only in this
country, but also around the world.
Prior to becoming a detective in the Special Victims Unit,
I, like many citizens, believed the only way to manage sex
offenders was to put them on a distant island where they
couldn't victimize anyone else. My feelings were naive, yet a
heartfelt response to a complex problem. My focus then and now
has always been victim centered. What can we do to ensure that
we don't have additional victims? What can we do to stop sexual
abuse before it happens? What has research taught us? How do we
hold sex offenders accountable by making sure they have the
tools to succeed once they are released from incarceration?
Washington State has been in the national forefront of sex
offender management and in ensuring public safety from sex
crimes. We have an end-of-sentence review committee that looks
at the risk each sex offender poses to the community prior to
the release from prison. We have a highly regarded sex offender
treatment program within the prison system and statewide
certification of sex offender treatment providers in private
practice. We do actuarial risk assessments on each of our sex
offenders in an effort to identify those who are the most
likely to reoffend. This helps put precious public safety
resources where they are needed the most, monitoring the
highest-risk offenders.
We proactively educate our community about sex offenders.
We want the public to be able to protect themselves from known
sex offenders, as well as those who haven't been caught yet. We
also educate the community that it is in the best interest of
public safety to be invested in the offender's success when
they are released.
I've trained law enforcement officers from all over the
world in the art of educating the community about sex
offenders. I've stated you cannot do community notification
without community education. To do so is like smoking a
cigarette while standing in a pool of gasoline. Without
education, there is misinformation. Misinformation leads to
heightened anxiety, which in some cases leads to vigilantism.
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.
I ask that you consider how the Sex Offender Registration
and Notification Act, SORNA, impacts the public safety aims of
effectively managing sex offenders in the community. The 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 offenders'
success. It has the opposite effect.
The SORNA mandates offense-based tiering, which is a faulty
alternative to actuarial-based tiering used in over 20 States.
Citizens have grown used to level 1 sex offenders as being low
risk, level 2 moderate risk, and level 3 high risk. Under
SORNA, most sex offenders will be Tier III. That will cause
great confusion and anxiety for the citizens as they believe
each of these offenders has a high risk to reoffend.
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.
The assigning sex offender tiers based on crime and conviction
tells us very little about who this sex offender is and what
his or her risk for reoffense 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. It is not an effective way of
doing business with the public.
Finally, I ask that you consider the retroactivity aspect
of the SORNA. Research tells us that most sex offenders do not
reoffend sexually over time. In the 2004 study done by the
preeminent researchers Harris and Hanson, with a sample of
4,724 sex offenders over a 15-year follow-up period, 73 percent
of sexual offenders had not been charged with or convicted of
another sexual offense. Under the SORNA, law enforcement will
be responsible for reviewing the criminal history of anyone
brought back into the system, even for a nonsexual criminal
offense. If they were once convicted of a sex offense,
regardless of how long ago that conviction was, the offender
will be required to register as a sex offender. This will be
very labor-intensive and costly. Our time and efforts and
resources are more effectively spent focusing on moderate- to
high-risk sex offenders, not sex offenders who committed their
crime 25 or 30 years ago and have not reoffended in a sexual
way.
Thank you for your time and your thoughtful consideration.
Mr. Scott. Thank you.
[The prepared statement of Mr. Schilling follows:]
Prepared Statement of Bob Shilling
Mr. Chairman, Committee Members, Guests, I am honored to be given
the opportunity to testify today. My name is Bob Shilling. I am a
twenty-nine year veteran of the Seattle Police Department. I have spent
the last nineteen years as a detective in the Special Victim's Unit,
Sex and Kidnapping Offender Detail. I have written or co-authored 12
pieces of sex offender legislation that have been passed into law in
Washington State, and testified on the Community Protection Act of
1990, which became the first community notification law in the United
States. I am the only municipal law enforcement officer in the United
States who is a member of the Interpol Specialists Group on Crimes
Against Children. I currently serve as Chair of the Sex Offender
Management Theme Group.
My experience in protecting the public from sex offenders spans two
decades. It's not a job to me it's a passion. Perhaps my most
significant experience related to this work comes from the fact that I
am a survivor of childhood sexual abuse. The abuse spanned a four-year
period and without question marks the darkest days of my life. I have
dedicated my life to doing whatever I can to stop sexual abuse, not
only in this country, but also around the world.
Prior to becoming a detective in the Special Victims Unit, I like
many citizens, believed the only way to manage sex offenders was to put
them on a distant island where they couldn't victimize anyone else. My
feelings were naive, yet a heartfelt response to a very complex
problem. My focus then and now has always been victim centered. What
can we do to ensure we don't have additional victims? What can we do to
stop sexual abuse before it happens? What has research taught us? How
do we hold sex offenders accountable while making sure they have the
tools to succeed once they are released from incarceration?
Washington State has been in the national forefront of sex offender
management and in ensuring public safety from sex crimes. We have an
End of Sentence Review Committee that looks at the risk each sex
offender poses to the community prior to their release from prison. We
have a highly regarded sex offender treatment program within the prison
system, and statewide certification of sex offender treatment providers
in private practice. We do actuarial risk assessments on each of our
sex offenders in an effort to identify those who are most likely to re-
offend. This helps put precious public safety resources where they are
needed the most; monitoring the highest risk offenders. We proactively
educate our community about sex offenders. We want the public to be
able to protect themselves from known sex offenders, as well as those
who haven't been caught yet. We also educate the community that it's in
the best interest of public safety to be invested in the offender's
success when they are released.
I've trained law enforcement officers from all over the world in
the art of educating the community about sex offenders. I've stated:
``You can't do community notification without community education. To
do so is like smoking a cigarette while standing in a pool of
gasoline.'' Without education there's misinformation. Misinformation
leads to heightened anxiety, which in some cases, leads to vigilantism.
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.
I ask that you consider how the Sex Offender Registration and
Notification Act (SORNA) impacts the public safety aims of effectively
managing sex offenders in the community. The 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 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 2 moderate risk, and level three high risk. Under SORNA, most sex
offenders will be tier 3. 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 just is 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 is their tier. It is
not an effective way of doing business with the public.
Research tells us that 90% of victims under age 12 knew their
abuser. That number is 66% when the victim is between 18 and 29 years
old. (Tjaden & Thoennes 2000) Under the SORNA, all sex offenders will
be subject to broad based Internet dissemination (community
notification) regardless of risk. When we know that most victims of
sexual abuse know their abuser, and in a large proportion of cases it's
a family member, Internet notification increases the likelihood that
the victim will be identified. Victims tell us that their greatest
concerns are their family knowing about the assault (71%), and people
outside the family knowing about the assault (68%). (Kilpatrick,
Edmunds, Seymour (1992) Rape in America.) The last thing we want to do
is create disincentives to victims and their families to report.
Finally, I ask you to consider the retroactivity aspect of the
SORNA. Research tells us that most sex offenders do not re-offend
sexually over time. In a 2004 study done by the pre-eminent researchers
Harris and Hanson, with a sample of 4,724 sex offenders over a 15-year
follow-up period, ``73% of sexual offenders had not been charged with
or convicted of another sexual offense.'' Under the SORNA, law
enforcement will be responsible for reviewing the criminal history of
anyone brought back into the system even for a non-sexual criminal
offense. If they were once convicted of a sex offense, regardless of
how long ago that conviction was, the offender will be required to
register as a sex offender. This will be very labor intensive and
costly. Our time, efforts, and resources are more effectively spent
focusing on moderate to high-risk sex offenders, not sex offenders who
committed their sex crime 25 or 30 years ago have not re-offended in a
sexual way.
Thank you for your time and your thoughtful consideration.
ATTACHMENT
__________
Mr. Scott. Ms. Borror.
TESTIMONY OF AMY BORROR, PUBLIC INFORMATION OFFICER, OFFICE OF
THE OHIO PUBLIC DEFENDER, COLUMBUS, OH
Ms. Borror. Thank you, Mr. Chairman and Members of the
Subcommittee. The Office of the Ohio Public Defender is, of
course, concerned about the constitutional rights of our
clients, but we are also concerned about obstacles that prevent
our clients from leading crime-free lives. We work with law
enforcement, prosecutors, victims groups, treatment providers
and child advocates on this issue because we are all committed
to a common goal: reducing the incidence of sexual abuse in our
society. And personally, as someone who has several friends who
have been victims of sexual abuse, I am concerned with not just
the stated goals of policies aimed at improving public safety,
but also with the practical effects those policies have on the
safety of my loved ones.
Without a doubt, the Adam Walsh act is well intentioned,
but the practical effects of SORNA contravene the act's well-
intended goals. In the 15 months since Ohio enacted Senate bill
10, its attempt to implement the Adam Walsh Act, at least 6,352
petitions have been filed challenging the new law. Ohio's
courts of appeals have issued decisions in at least 59 cases.
The Buckeye State's Sheriffs' Association estimates that the
new law has increased sheriffs' workloads by 60 percent.
County courts and prosecutors have interpreted the new law
differently, and many courts have stayed enforcement of the law
until the Ohio Supreme Court rules on its constitutionality.
The Adam Walsh Act, which is intended to create uniformity
in sex offender registration across States, has instead
resulted in tremendous variation across Ohio's counties. Prior
to adopting Senate bill 10, Ohio had a risk-based
classification system. That had resulted in a registry that
closely resembled what research tells us about sex offender
recidivism. The vast majority of offenders were in the lower
two tiers, and only 18 percent were labeled as sexual predators
found by a judge to be likely to reoffend. Ohio's registry now
includes 54 percent of offenders in Tier III.
Ohio's old registry was potentially a useful public safety
tool. The 4,000 offenders labeled as sexual predators would
rightly garner the most attention from the public and require
the closest supervision by law enforcement. But now Ohio's
registry includes more than 12,000 people in Tier III. Their
propensity to reoffend is not known, but the public will
perceive them as dangerous, and law enforcement must expend
tremendous resources to supervise them.
Under Ohio's old law, a person convicted of sexual
imposition, a misdemeanor, might have been classified as a
sexual predator if a judge found him likely to reoffend. Now,
however, the judge is mandated to classify that person in Tier
I. Instead of being able to properly label this high-risk
offender, the court must instead wait until another offense is
committed and another victim is created.
Sex offender registration laws are supposed to be aimed at
protecting the public from future crimes, but the Adam Walsh
Act looks only at past offenses and labels offenders based on
those, without considering what they're likely to do in the
future. One of the primary objections to the Adam Walsh Act is
the requirement that the States apply the law retroactively,
but the act itself was not retroactive. It delegated authority
to the Department of Justice to determine its applicability to
those convicted prior to the law's enactment.
Retroactive application presents separation of powers
issues, as State legislatures, acting on a directive from the
executive branch of the Federal Government, reverse decisions
made by judges. And plea deals entered into before the act
raise additional legal concerns. Applying the act retroactively
subjects States to lengthy and expensive constitutional
challenges that could be avoided by applying the act
prospectively only.
The act's inclusion of juveniles on the Internet registry
is another cause of great concern. Neurological science shows
us that children's brains are physically different from adults'
brains. Treatment provided during this critical stage of
development will impact the way a child's brain develops. As a
result, juvenile sex offenders are especially amenable to
treatment and significantly less likely to reoffend.
Many juvenile sex offenders are intrafamilial. In these
situations, the offender and the victim receive much-needed
treatment only if their parents seek help. Undoubtedly, many
parents will be unwilling to ask for help if doing so resigns
one child to a lifetime of inclusion on an Internet registry.
As a result, neither the offender or the victim will receive
the treatment they need.
Including children on an Internet registry also puts those
children at risk for being targeted for abuse. A pedophile
could use the on-line registry to find victims, as the registry
provides him with the names, pictures and home addresses for
children as young as 14. Many juvenile sex offenders were
victims before they committed their offenses and are especially
vulnerable to further victimization.
The practical effects of the Adam Walsh Act contravene the
act's well-intended goals. An act intended to unify registries
across the country has instead placed an incredible burden on
courts and law enforcement and created confusion from one
jurisdiction to another. A law aimed at protecting children
from sexual predators instead places thousands of juveniles on
an on-line registry and into harm's way. A system meant to
simplify sex offender classification has instead muddled the
meaning of offenders' designations and lets the public to only
speculate about which prior offenders might pose a future risk.
Mr. Chairman and Members of the Subcommittee, thank you for
this opportunity to testify today.
[The prepared statement of Ms. Borror follows:]
Prepared Statement of Amy Borror
__________
Mr. Scott. Thank you. And I want to thank all of our
witnesses for their testimony.
We'll now begin questions under the 5-minute rule, and I
will recognize myself for 5 minutes.
Ms. Carter, you indicated that we should be using--making
decisions based on evidence. What is the evidence and what
works and what doesn't work under SORNA?
Ms. Carter. Excuse me. Did you say under SORNA, or just
generally?
Mr. Scott. Well, I start with SORNA.
Ms. Carter. Okay. I will start with SORNA.
Well, unfortunately, there has been very little study of
the issue of registration and notification. There have been a
handful of studies conducted across the country, and some of
them have slightly conflicting results, but overall they have
not demonstrated to be effective in terms of reducing
recidivism risk among offenders.
Mr. Scott. Are there any studies that show that
notification or registration reduced the incidence of sexual
abuse of children?
Ms. Carter. Can I defer to one of my colleagues?
Mr. Scott. Sure.
Ms. Carter. Detective, do you want to talk about the
Washington study?
Mr. Shilling. There was a study done by the Washington
State Institute for Public Policy that took a look at community
notification and whether or not community notification worked.
And what they found out is that it was statistically
insignificant whether or not notification worked versus those
who had reoffended without having been the subject of community
notification. And so far that is the only study that I'm aware
of that has been done taking a look at the actual aspects of
community notification on whether it works or not.
Mr. Scott. Thank you.
Ms. Rogers, what does notification--what does notification
mean in the regulations?
Ms. Rogers. Community notification means that jurisdictions
are required to make available to their citizens information
when a sex offender comes into their community to live, go to
school or work.
Mr. Scott. And exactly how do you notify the community?
Ms. Rogers. It is up to the discretion of the community, to
the jurisdiction how they want to do that. It can be done
through e-mail, registered mail, pamphlets, telephone. It is
completely discretionary.
Mr. Scott. When somebody moves into an area, how wide an
area gets notified?
Ms. Rogers. Again, that wasn't listed in the act. It is
completely discretionary.
Mr. Scott. The regulations don't speak to that?
Ms. Rogers. No, they didn't. What we did was we put
together a system where every individual could register up to
five addresses that were of interest to them, and they could
receive notification up to a 4-mile radius around each of those
addresses whenever a sex offender registered within that
radius.
Mr. Scott. So you could sign up for notification. Would
everyone in the 4-mile radius get notified when the person
moves into the neighborhood?
Ms. Rogers. Only the people who had signed up, if the
community only had the community notification system that the
SMART office set up. Many jurisdictions also have secondary
systems of mailings, telephone, pamphlets, et cetera.
Mr. Scott. If somebody is registered, do they have a
tracking device?
Ms. Rogers. It is not required under the act.
Mr. Scott. Mr. Shilling, you indicated a need to
prioritize. What did you mean by that?
Mr. Shilling. We want to be able to target our resources
toward the highest-risk offenders. They are the ones that have
the greatest risk of reoffending. So using actuarial risk
assessment models, we're able to target those offenders who are
at highest risk to reoffend and make more visits on them than
what even SORNA requires.
Mr. Scott. Are there other things you can do other than
notification and registration to reduce the chance that the
children in the area and the neighborhood may be victimized?
Mr. Shilling. Well, one of the things that I am a very firm
believer in is in community education. And I believe that is
how we have the best chance of preventing some of this, so that
when we go out and do community education meeting, citizens see
what the red flags are. I have done many, many meetings where
people have come up to me afterwards and said, wow, I wish I
had this information before.
Mr. Scott. Is that just with known sex offenders who may be
recidivating, or protecting yourself from sex offenders who
might not have been already convicted?
Mr. Shilling. When we do community education, we do it on
sex offenders in general. We want to protect them from all sex
offenders, not just the ones that they know about.
Mr. Scott. Thank you.
My time is expired. Mr. Gohmert.
Mr. Gohmert. Thank you, Chairman.
Well, taking some things up in order, Ms. Rogers, why did
it take the SMART office 2 years to produce the SORNA
guidelines? It doesn't sound very smart.
Ms. Rogers. The SMART office had no staff besides myself
and a detailee from the U.S. Attorney's Office until January of
2008. On my own I was implementing SORNA, providing national
training, and sorting technical assistance and, with the help
of Office of Legal Policy, writing the proposed guidelines.
They went out for public comment for 71 days during the summer
of 2007. They were complete and went into review through the
Department of Justice for the final guidelines in February of--
--
Mr. Gohmert. Why were you so shorthanded all that time?
Ms. Rogers. I had no staffing FTEs.
Mr. Gohmert. You were shorthanded because you didn't have
staffing. Yeah, I might have guessed that. But why did you have
no staffing?
Ms. Rogers. There were no available slots to hire anyone
into. There was no funding.
Mr. Gohmert. Okay. That's the bottom line.
Ms. Devillier, we had a crime hearing down in New Orleans a
couple of years ago, and I was shocked at that time. And I'm
glad you're here because I'm curious if it is still going on.
But having been a former judge, and we've got another former
judge over here, I was shocked that there was a system in place
in the Louisiana criminal system that a defense attorney could
contact a judge unilaterally, ex parte, and seek to get a bond
lowered for his client. And if the judge lowered it so that the
defendant could make it, then the court of the judge that
lowered it got a cut of the bond. Is that still in place? I was
kind of surprised that existed anywhere. Is that system still
in place where the court can get a cut of the bond they lower?
Ms. Devillier. I really can't speak to that. Are you
speaking in Orleans Parish?
Mr. Gohmert. I understood it was a Louisiana law that
allowed the ex parte communication and then the judge to get
part of the bond. Or not the judge, no. It is the court. It is
not the actual judge. But you're not aware?
Ms. Devillier. I'm not aware.
Mr. Gohmert. Well, with regard to the Louisiana sex
offender registry, what would you require in a Louisiana system
if you were making the law that would be different from what
the SORNA requires?
Ms. Devillier. Thank you for that question.
Louisiana has drafted legislation----
Mr. Gohmert. But I'm asking you personally. You're the
witness here.
Ms. Devillier. Well, I worked--I was one of the lead
crafters----
Mr. Gohmert. So they did exactly what you wanted then?
Ms. Devillier. It is not exactly what I wanted. We tried to
abide by some of the things that we didn't necessarily agree
with.
Mr. Gohmert. But I'm asking exactly what you wanted.
Ms. Devillier. We have done in Louisiana the three tiers.
Mr. Gohmert. But I'm asking exactly what you'd put in the
registry if you were doing it.
Ms. Devillier. What I would say to you is that I cannot
speak to risk assessment versus offense-based. I certainly
agree that risk assessment has----
Mr. Gohmert. Well, you had mentioned, then--if you can't
tell me, then let me ask you. You had said that you must look
to the age of the victim, and even if that is not an element of
the offense, does Louisiana require presentence investigation
reports for a judge to consider in sentencing?
Ms. Devillier. Well, it would depend on if there was a plea
agreement. If there was a plea agreement, there would be no
investigation.
Mr. Gohmert. So you don't require them in all cases then?
Ms. Devillier. I'm sorry?
Mr. Gohmert. They are not required in all cases?
Ms. Devillier. No, sir.
Mr. Gohmert. In Texas, they were required in all cases. So
there is no place that it would be part of the record what the
victim's age was?
Ms. Devillier. No, sir. That is not what I meant to say. If
that's what you took----
Mr. Gohmert. Well, you said even when it is not an element
of the offense, how is that due process? As I understood, it
was a rhetorical question. So you're saying that in the record
there would be no age even for the victim?
Ms. Devillier. No, sir. There would be--if the--in some
cases the crimes in Louisiana don't require the age to be put
in the bill of information. What the bill of information would
tell you is that the victim has not attained the age of, say,
16 or 15 or whatever the elements of the offense was. But my
point there, sir, is that the guidelines require--whether or
not it is in the bill of information or whether or not it is
in--and I know that you having been a judge; you know the
prosecutor will give a factual basis. So the age of the victim
might be establishable not just through the bill of
information, but through the factual basis.
But my point was if you tie the tier to the actual age of
the victim, you are tying my hands as a prosecutor to get a
plea in a case when the 25-year registration period or the
lifetime registration period is hampering a defendant's
willingness to plead guilty in a difficult child sex case.
Mr. Gohmert. But if you do agree, how is that not due
process? You said it wasn't--or you said, how is that due
process?
Ms. Devillier. Well, because the age of the victim, if it
is not alleged in the bill of information, it is not a fact
that has been established in a court of law, because when----
Mr. Gohmert. That's what I'm saying. It could be
established in the court of law.
Ms. Devillier. It could be.
Mr. Gohmert. I mean, even in a presentence report, the
parties--if somebody objects to what is in the presentence
report, either side can object. There is due process in that
process, right?
Ms. Devillier. Right.
No. I agree. If it is in the record. There are
circumstances where due process would be afforded because that
fact would be in the record and established on the record. But
I will submit to you that there are many instances where that
fact is not in the record.
Mr. Gohmert. Okay. Thank you. I see my time has expired.
Mr. Scott. The gentleman from Puerto Rico.
Mr. Pierluisi. Thank you, Mr. Chairman. I have a couple of
questions for Ms. Rogers.
I kind of understood you to say or imply that a lot of
States would be in compliance by July of this year. Is that so?
Is that what you are----
Ms. Rogers. No.
Mr. Pierluisi. Okay. In your judgment or your expectation,
how many States will be in compliance, roughly speaking, by
July of this year?
Ms. Rogers. Taking into consideration I left office January
20th, I no longer am privy to the information coming into the
office. There may be none. And the reason there may be none is
because the guidelines came out in July of '08; there is much
to be done; there is little to no funding in some
jurisdictions; but also because every jurisdiction, State,
territory and tribe knows that they have two 1-year extensions
available to them, and they are all taking advantage of that
situation. They know they don't need to be in compliance for
2\1/2\ more years. As you push that compliance date down the
line another year or 2 years, if this body decides to do that,
then you won't see jurisdictions coming into compliance until
that future date.
Mr. Pierluisi. So as of January 20th, your sense is that if
we extend this deadline by, let's say, a year, that you would
have most of the States in compliance? Is that your sense?
Based on what you know as of January 20th, based on what you
know about what States were doing to comply, would you expect
that States--most of the States, if not all, would be in
compliance a year from July 2009?
Ms. Rogers. I'm confused by your question because they
already have two possible 1-year extensions to July of 2011.
And I expect the jurisdictions of States and territories will
be in compliance by that time based on my experience at the
SMART office.
Mr. Pierluisi. I see. What I was saying was if we extend
the bar, the deadline we have, putting aside the fact that you
can--the government can in its discretion extend those
deadlines, if we just statutorily extend the deadline that we
have right now, your expectation is that in about a year most
States would be in compliance?
Ms. Rogers. I think it is more realistic to expect the July
2011 date. I think there is a lot to be done by a majority of
jurisdictions.
Mr. Pierluisi. So it is, like, about 2 years what you
expect that we should wait for compliance to happen?
Ms. Rogers. I do. I believe that the discussion to extend
compliance is not ripe yet. As the 2011 date approaches, I
think that you should take stock of how the jurisdictions are
doing. The more time you provide, the longer people will take
to comply. It is human nature. But I do believe that based on
the structure that is currently set, jurisdictions are
recognizing that they must be in compliance by July of 2011,
and that is what they are working to, keeping in mind, many
States, territories and tribes don't have legislative sessions
annually. So there is a lot of roadblocks in the way that
different jurisdictions have to get over in order to come into
substantial compliance.
Mr. Pierluisi. With respect to funding, do you have any
ideas of ways in which the Federal Government could be funding
at least partial--you know, partially these efforts?
Ms. Rogers. I think that with the increased Byrne grant
through the stimulus package, that will be a great benefit to
the jurisdictions who receive Byrne grants. Most tribes do not,
so that is problematic. Increased law enforcement will be very
necessary. SORNA doesn't require visitations to different tiers
of sex offenders. That is a jurisdictionally implemented
requirement. And so if jurisdictions want to monitor certain
sex offenders more than others, that is their discretion and
their choice. But SORNA doesn't require it.
But still more law enforcement to assist in registration
procedures, address verification, which is, again, at the
discretion of the jurisdiction, will be very helpful.
Additional resources to allow for sex offenders to register
quarterly, biannually or annually is necessary. Updating of
computer systems and software to attach the National Sex
Offender Public Website is beneficial. Some equipment will be
necessary in order to facilitate the registration procedures.
But many jurisdictions need to assess what they currently
do and then modify the programs that are antiquated or no
longer working to transfer them into programs that are better
and applicable under SORNA, and I think when you have that
transfer of resources, that many jurisdictions haven't
considered, that you will find that it is not as expensive to
implement SORNA as some jurisdictions say it is.
Mr. Pierluisi. So I take it that this would be through
discretionary grant programs, additional or new discretionary
grant programs under the Byrne grant umbrella? That's how you
would do it?
Ms. Rogers. I would suspect that that would be how the
SMART office would do that at this point in time.
Mr. Pierluisi. I have no further questions at this point,
Mr. Chairman.
Mr. Scott. Thank you.
The gentleman from Texas.
Mr. Poe. Thank you, Mr. Chairman. I have a few questions
for all of you, but I only have 5 minutes, so make your answers
short.
Ms. Rogers, is the bottom line money, or is there something
else?
Ms. Rogers. It is money, and it is also jurisdictions that
feel they personally own the registration system they have, and
they don't want to modify it. And it is a myopic opinion by
jurisdictions that what they have is best, not recognizing that
their system is very different than all the other systems, and
we don't have a national standard.
And I just need to add that prior to leaving the SMART
office, the decision was made that Byrne grants would not be
reduced for any jurisdictions as long as an extension was in
force. So there is no Byrne grant reductions until July of
2011.
Mr. Poe. Ms. Devillier, is that the way you pronounce your
last name?
Ms. Devillier. Devillier.
Mr. Poe. Okay. I apologize.
Do you actually try sexual assault cases?
Ms. Devillier. Yes, I do.
Mr. Poe. How many have you tried?
Ms. Devillier. Oh, good Lord, that is hard to say. But I've
been handling sex crimes, been a prosecutor in total, but for
the time I was a State representative, about 13 years.
Mr. Poe. Have you tried cases where a child sexual assault
victim was murdered?
Ms. Devillier. No. I have tried murder cases where children
were killed.
Mr. Poe. Have you ever tried a sexual assault case where a
child was murdered?
Ms. Devillier. No, sir.
Mr. Poe. All right. If I counted correctly during your
testimony and the questions asked by Judge Gohmert, you made
the phrase--or made the comment, this hampers me getting a
plea.
Ms. Devillier. Correct.
Mr. Poe. I have never understood why people who called
themselves trial lawyers, either prosecutors or defense
lawyers, spend most of their time trying to plead out cases
rather than get justice from a trial. That is just an
observation. But it is an unfortunate phenomenon in our system
where the goal is not justice, the goal is to get a plea. And
I'm not so sure that those are the same.
Mr. Allen, let me ask you your question, being in the
position that you are in to keep up with missing and exploited
children. And we've heard and we all know statistics can mean
whatever we want them to mean, whether it is child sexual
assault, child molesters reoffend at what percentage, whether
it is 100 percent or 23 percent. Based on what you know, what
is your opinion about a person that commits a sexual assault
against a child? No matter what happens to them, whether they
go to prison or they are put on some kind of supervision, they
are reoffending.
Mr. Allen. Well, I think my view is that there is no more
heinous act that can be committed. My view is that most of
those offenders do it not as a matter of lapse of judgment, but
as a lifestyle. And I think it is very important at a minimum
that we know where they are and what they are doing.
And the other thing I would want to add to that is it was
never anybody's suggestion that the Adam Walsh Act would be a
panacea or the only legislation or the only apparatus in place
to address these kind of problems. It doesn't preclude
treatment. It doesn't preclude community education. What it was
intended to do is to address what frankly we felt was a system
in which there was a lack of communication, a lack of
uniformity; the ability of the most serious offenders to game
the system, to move from jurisdiction to jurisdiction out of
the reach and touch. And what it was intended to do was to
build a system so that at least we know where these offenders
are and what they are doing.
Mr. Poe. Would you agree there is a big difference in
taking a risk on someone reoffending as a thief as opposed to
someone that is a child molester?
Mr. Allen. Absolutely. And, in fact----
Mr. Poe. Do you think 23 percent would be too high even
with child molesters?
Mr. Allen. No question.
Mr. Poe. The last question is to Mark. Thank you for being
here, Mark. It is always hard for you to talk about Jessica.
In my office I have the photographs of my four kids and my
seven grandkids. And I have two pictures of other children that
I think they are mine. One is Kevin Wanstrath, a 14-year-old
that was murdered; and your daughter Jessie. I think it is
there to remind me of why we are here.
Do you think, Mark, based on these experts that have
testified, based on what you have been doing, do you think we
need to spend more money and effort to get the law enforced, or
should we just back away with it because it is too hard?
Mr. Lunsford. Well, I think what is going to happen--all
right. If we back up because it is too hard, the children will
pay the price. If we move forward and continue to try to figure
out how we fix this problem, you might have a few people on the
registry that might not belong there. So weigh it out. Do we
register a man that might not be as guilty as we think he is,
or do we let a child die?
I mean, I think we have to go with going to go with more
reg--better registration and notification when we have to. The
only person that is going to make a sacrifice is maybe somebody
who doesn't belong there. But if we don't get tougher
registration and better notification, another child will die.
Mr. Poe. Thank you, Mr. Chairman. I yield back.
Mr. Scott. The gentlelady from Texas.
Ms. Jackson Lee. Thank you very much, Mr. Chairman, for
holding this hearing. And let me, first of all, of course,
acknowledge my friend Ernie Allen and the work that we've done
together, and to thank Mr. Lunsford, Mr. Smart who is in the
audience, and Mr. Walsh, who have become the faces, even though
there are many other parents, of what has to be the most
heinous, if you will, call that you might have gotten based
upon the most heinous act that anyone could do.
I happen to believe in that phrase that where there is a
will, there is a way. And frankly, Mr. Lunsford, I know that if
someone was 14, you might be open-minded to some different
framework, and I can tell that. But we were not in your shoes,
but we lived your horrific experience, and let me just be very
frank, I couldn't get through the television to help you out.
Once they described the individual who I truly believed has the
rights--and certainly as sitting on this Committee, I wouldn't
want to deny that individual due process. But I couldn't get
through the television. Why? Because of their history, because
of what they had done, and seemingly the ``smirkness'' of ``I
have done it again.''
So I really think that we have to find the balance, and I
think it is important that the post powerful Nation in the
world still today, in spite of all of our challenges, that we
are sitting here and could give the answer, that we can't find
a way.
Let me quickly ask the State of Louisiana, are you in
compliance now?
Ms. Devillier. No, ma'am.
Ms. Jackson Lee. Are you working to come in compliance?
Ms. Devillier. We've been working since 2006, since the
passage of the act, diligently to try to come into compliance.
Ms. Jackson Lee. What is keeping you from coming into
compliance?
Ms. Devillier. What--because we believe that what the
guidelines require for compliance is problematic in----
Ms. Jackson Lee. Such as? Such as?
Ms. Devillier. With regard--such as the requirement that
you look at the underlying facts of the offense rather than the
elements of the offense in order to decide what tier the person
fits into. And the example I give is as a prosecutor, I have
tried many child sex cases----
Ms. Jackson Lee. Can you go quickly, because I have
questions. Just give me one underlying factor.
Ms. Devillier. One underlying factor would be that the
guidelines say you have to look at the underlying facts of the
offense, whether or not it is an element of the offense, the
age is the element of the offense, which ties my hands----
Ms. Jackson Lee. The age of the victim?
Ms. Devillier. The age of the victim is controlling.
Ms. Jackson Lee. If we gave you a staff person, and that
person was funded, or a team of three, would that help you?
Ms. Devillier. No, ma'am.
Ms. Jackson Lee. That would not help you. What would help
you then?
Ms. Devillier. We have issues with the policies or the
actual requirements themselves that are in the guidelines.
Ms. Jackson Lee. All right. Mr. Allen, I think you've been
over those bills quite frequently. Is there anything that you
think we should sacrifice in these legislative initiatives to
help Louisiana? And they are just here being representative of
other States that are not in compliance. Anything that you
think that we should be looking at?
Mr. Allen. A couple of things, Congresswoman. One is the
act. As I hear the primary concerns that Ms. Devillier has,
they are with the guidelines, not with the law. More with the
guidelines than the law.
Ms. Jackson Lee. Which are the regulatory aspect of how
they've been interpreted.
Mr. Allen. Regulatory aspects can be addressed.
Secondly, in the consideration of the law, there was a
massive amount of compromise that took place. Certainly we are
not opposed to modest changes--for example, I remember Senator
Kennedy was concerned about provisions in the law that might
conflict with State constitutional protections. So there is a
provision in the law that where that something in violation of
State constitution----
Ms. Jackson Lee. Tenth amendment.
Mr. Allen [continuing]. That the State is able to comply
otherwise. So I think there are minor changes that could be
made.
Ms. Jackson Lee. You made a very good point. Let me pose
this question to, I think, Amy Borror. And let me say this: I
believe--I think the Chairman has presented himself very open-
minded. Let me be open-minded, but with this framework. I'm not
so sure that I would not be pushing to shorten the compliance
time. I think that the longer you let the kid out of the house
and don't give him a curfew, they will be staying there even
longer. And you can be assured that States are going to stay
even longer past 2011.
The assistant attorney general from Louisiana has indicated
that I can could give her staff, I could give her everything,
and she is not able to do it still. So there may be a reason to
go back to the Department of Justice to asses these guidelines,
these layers of elements.
And I do think we have to consider the 14-year-old that is
caught with a girl and gets listed as a sex offender, and that
happens, and both of them get caught up, but the boy obviously
usually is the one. And I see Mr. Lunsford understanding what
I'm saying. And as a country sophisticated as we are, why can't
we handle that?
Let me ask Ms. Borror what your ills are with where we are
today at this point.
Ms. Borror. I think it is important to remember that the
discussions we are having today about extending the deadline,
just that enough--just that is not enough. The reason we are
asking for this extension of the deadline is we believe there
are issues underlying that need to be addressed, and we want
the extension in order to give us enough time to address those.
And to go back----
Ms. Jackson Lee. Is one of them the whole issue of
juveniles, or is it guidelines as well, the way they have
written the guidelines?
Ms. Borror. It is both. Several States, including Ohio,
have concerns about the act's application to juveniles. But I
think the guidelines are a big part, too. The legislation, the
Adam Walsh Act, required substantial compliance, And
substantial compliance is generally recognized as somewhere
between 51 percent and 99 percent compliance, more compliant
than not, but not 100 percent. One hundred percent compliant is
generally known as strict compliance. That is what is required
by the guidelines, when the Federal legislation required only
substantial compliance.
Ms. Jackson Lee. Well, let me--Mr. Chairman, if I might
just finish. I ask unanimous consent for an additional minute.
Mr. Scott. We are going to have another round if you wanted
to. If it just another minute, we'll give you another minute.
If you want another round, we're having another round.
Ms. Jackson Lee. Thank you, Mr. Chairman. I'll take the
additional minute for reasons of having to be in a meeting in
my office, but I thank the Chairman very much for his
indulgence.
I can't let the State of Louisiana go by without carrying a
message by it, and you're very well representing the States.
I'm not pointing out, but I couldn't let you go by without
saying to you that I am hoping that we have a chance to look at
Jena 6 again, because I think that is certainly something that
you could certainly fix for me.
But let me just conclude on this point: Ohio has been doing
all they could, as I understand, to be in compliance. To the
panelists, I'm not necessarily--and I will probably overrun on
this--wanting to give an extension. I am willing and I would
like to see the guidelines clarified to help States like Ohio
who are working every day to try to comply.
The other aspect of it is I would like to give money on the
enforcement side, but I would also like to increase the
punitive measures, because we give States a lot of money. We
give them the Byrne grants, and I don't think there will be any
fire under their feet unless they can see a larger amount of
monies being lost, Federal funds, because they have not
complied.
And I end, Mr. Chairman, on the note of what Mr. Lunsford
has said. What we don't do here today and fix this problem, a
child will be victimized tomorrow. That is not something that I
want on my watch, and I want to thank all of you for being here
today.
Mr. Chairman, I thank you for yielding to me, and I look
forward to working with you and working with our panelists to
get this right.
I yield back.
Mr. Scott. Thank you.
We'll have another round of questions. Mr. Allen, you
indicated that the State constitutional difficulties--did you
say were an exception or could be?
Mr. Allen. My understanding is it could be.
Mr. Scott. So we would have to change the law to allow that
to be an exception if the State couldn't comply with SORNA
because their supreme court essentially prevented them from
coming into compliance. That should be an exemption, but it is
not now. Is that----
Mr. Allen. It is now. It was written into the original act.
Specifically it is a request to Senator Kennedy.
Mr. Scott. You indicated the recidivism rate. This isn't
really a matter of this particular hearing, but when we
abolished parole, we had to let everybody out at the same time,
ready or not, here they come; whereas under the parole system,
you could essentially hold people, the ones you wanted to,
about three times longer than average. Some would get out
early, some would get out longer. But those who are still--by
every calculation still a risk to society have to be sprung out
like everybody else. And so long as we have this what I call
half truth in sentencing, that is nobody gets out early, you
also can't keep them longer either. That is the other half of
the truth.
So one of the problems we have with the recidivism rate,
particularly those by any calculation still pose a present
danger to society, still have to get sprung out like everybody
else.
Ms. Rogers, we have had a couple of people indicate that
there has been no evidence to show that the registration and
notification have had the evidence of reducing crimes. Do you
want to respond to that?
Ms. Rogers. I do. How do you measure how many children have
not been abused? How do you conduct a study on that? How do we
know how effective the registry is? What we know is that we had
over 5 million hits to the registry last year, and over 772
million sex offender pages were accessed. So we know people are
interested. We know that people want to protect themselves. We
cannot do a study on how many children are now safe and alive.
Mr. Scott. I'm hearing that you have no studies that show
the reduction. Mr. Shilling suggested that there were studies
showing where you had registration compared to where you didn't
have registration, and the difference was insignificant.
Ms. Rogers. There are currently studies at the SMART office
funded through NIJ to identify the benefits of registration.
Those are not completed. We funded those in 2007.
Mr. Scott. Okay. You indicated that consensual sexual
activity amongst teenagers was not a matter subject to
registration?
Ms. Rogers. That's correct. It is section 16115(c).
Mr. Scott. And if a 19-year-old more than 4 years older
than a 15-year-old had consensual sex, that would require a
lifetime registration?
Ms. Rogers. If there were more than 4 years between the two
juveniles?
Mr. Scott. Right. One 19 and one 15. You add up the months,
more than 4 years.
Ms. Rogers. That would require--that may require
registration, yes.
Mr. Scott. For how long?
Ms. Rogers. It would depend on the act.
Mr. Scott. Consensual sex.
Ms. Rogers. Consensual sex between two--with a minor could
possibly be a 25-year registration. It may not be a registrable
offense, though. It depends.
Mr. Scott. Depends on what, more than 4 years older?
Ms. Rogers. It depends how it is charged in the
jurisdiction. It depends on whether it is a misdemeanor or a
felony. If it is a misdemeanor, it is not a registrable
offense. For 25 years, it would be a 10-year registration.
Mr. Scott. But it would require registration?
Ms. Rogers. Most likely, yes.
Mr. Scott. This could be two high school students,
consensual sex?
Ms. Rogers. Probably not, because there wouldn't be more
than 4 years between two high school students.
Mr. Scott. A 19-year-old and a 15-year-old.
Ms. Rogers. Then yes.
Mr. Scott. Okay. Mr. Devillier, you were asked about plea
agreements, and sometimes it occurs to me that all the
defendant knows is they did it; they don't know that you don't
have a case. Do you have any cases where you are able to
extract a guilty plea when, in fact, if you were forced to go
to court, you couldn't have gotten a conviction at all?
Ms. Devillier. What I do know, and I am very--I have lots
of trials under my belt, and I'm very most happy when I'm in
trial. My purpose for bringing out the plea agreement thing,
sir, is, yes, there are--not that--I would not bring a case
that I could not prove. The problem is you have a child. In
child sex cases you will--you could have a 7-year-old child who
is telling you--and their counselor is telling you to put this
child through a public trial, you will further revictimize this
child. It is not that you don't have the evidence. It is that
you don't want to----
Mr. Scott. Suppose your evidence is that she thinks it is
the guy, but she is not sure?
Ms. Devillier. Well, then that would be divulged under
Brady to the defense, certainly.
Mr. Scott. And could you get a conviction if the
defendant--they know they did it? Would you be better off
getting a plea and being finished with it than rolling the
dice?
Ms. Devillier. Judge, pleas are things that are definitely
necessary, as I'm sure the judges know, to continue the
criminal justice system to operate. If we had to try every case
that we had, we would never get them all done. Sex cases
involving minor victims are the most difficult cases to prove.
Often your whole case comes down to the word of a child versus
the word of an adult. Many of the offenses are not reported
until much later. You rarely, if ever--you have sometimes
physical evidence, but rarely do you have physical evidence.
The child is often reluctant to participate. The family is not
supportive.
We cannot mandate sex offender registration until we
convict them. So these are the most difficult cases to get a
conviction on. So, of course, we are going to want to, as
morally I'm going to want to, prevent this trial--I don't want
to revictimize this child by forcing them through a trial, And
in that circumstance, I'm going to try to get a plea in that
case. I'm just morally going to do that. And if I--if the
defendant is saying, I'm not pleading to anything that makes me
register for 25 years or life, then I've got to find somewhere
else to go.
And I would just suggest that if we would just interpret
the substantial compliance language in the act to mean
substantial compliance, then, you know, Louisiana could leave
some of those child sex cases in Tier I that would require 15
and give me some leverage in that process. But when you tie it
specifically to the facts of my case, and I can't get around
those facts because you're going to be looking at the
underlying facts, it ties my hands as a prosecutor to get the
plea.
Mr. Scott. Mr. Allen, you indicated that resources were
scarce. The registration and notification isn't the only thing
that you'd like us to be doing. What other initiatives could we
be enacting, and what kind of priority would they have in front
of or behind spending this money on SORNA?
Mr. Allen. Well, first of all, the Adam Walsh Act contains
a variety of initiatives that have not been funded and have not
been implemented, including enhanced treatment for juvenile sex
offenders, community education, and prevention programs and
initiatives. SORNA is one title of a large bill. So I think
those kinds of initiatives.
One of the things, frankly, that we would like to see
happen is to create greater specialization in this area. For
example, the Dallas Police Department has what we believe is a
model national program called SOAP. It is a Sex Offender
Apprehension Program that aggressively and proactively goes
after noncompliant offenders who represent the greatest risk.
There was a provision authorizing funding for model units,
specialized units in police departments around the country, not
in the Adam Walsh Act, but in the PROTECT Act of 2003, that has
not been funded.
I think the whole area of greater specialization, greater
focus on this problem--I want to reiterate what I said earlier:
We do not think that the Adam Walsh Act or SORNA are the be-all
and the end-all.
And to your point about the lack of evidence that
registration has reduced sexual crimes, my response to that
would be the intent of this is less prevention than regulatory.
I mean, that what the courts have said. The first sex offender
registration act was passed in the 1940's in California. So
that it is not intended to be the answer to the sex offender
problem, it is intended to try to create a system in this
country so that we don't send people forth and say, sin no
more, commit no additional crimes, and there is no support or
follow-up to keep those offenders from reoffending.
The systems of supervision in this country, State probation
and parole, by and large are overwhelmed. It is another area
where the Congress could provide additional leadership and
support. We really need to know where these guys are for their
own protection, to keep them away from employment situations
where they have easy and legitimate access to children, to keep
them out of risky behaviors that increase the likelihood of
reoffense.
Mr. Scott. What kind of supervision are they under if they
have just registered?
Mr. Allen. Well, under the Adam Walsh Act, far greater
supervision than they get today. In most States, the current
level of supervision is by mail. Somebody sends in a document
that says, here is where I am, here is what I'm doing. There is
no validation or verification in that there is very little
penalty, very little sanction for the failure to be compliant.
So these horror stories, like John Couey, happened because
there is a significant lack of supervision and oversight.
That's what this bill was intended to do, to deal with the
system in this country that frankly is smoke and mirrors, in
which there is registration without accountability, without
meaningful oversight, without follow-up.
Mr. Scott. Mr. Shilling, did you want to comment?
Mr. Shilling. Well, I would just say that in the State of
Washington, we actually go out and physically verify the
address of every single sex offender when they have registered.
And we go out on a regular basis. Sometimes they are the lower
risk; sometimes it will be 6 months. If they are the higher
risk, it can be anything from 90 days to once a week. But
depending on the risk of the offender, we go out and physically
verify their address. We don't take their word for the fact
that I'm living here, because sometimes that is a parking lot.
We want to go see where they are living. We want to see the
clothes in the house. We want to see that they are getting mail
there. We want to see that that is exactly where they are
living.
Mr. Scott. Time has expired.
Mr. Gohmert.
Mr. Gohmert. Thank you.
I guess to follow up on that, it was the Seattle Times that
reported that Darrin Sanford, convicted sex offender with a
history of failing to register as a sex offender, confessed
recently killing a 13-year-old near Walla Walla, Washington.
And Washington State does use this risk-assessment approach,
and apparently he was under the State's highest level of
supervision. Are you familiar--do you know what went wrong in
that case? How did he end up with this great supervision to be
able to go out and reoffend and kill another child like this?
Mr. Shilling. Sir, he was listed as one of the highest
risks to reoffend. And because of that, the Washington State
Department of Corrections put him on electronic monitoring, and
he committed his crime while he was under electronic
monitoring, which is one of those things that, you know, we are
saying, again, if you want to get somebody, if you want to
commit a crime, it doesn't make any difference whether you have
electronic monitoring, whether you have an Adam Walsh Act or
what you have, they are going to do it. So we need to be better
at figuring out who these higher-risk guys are and giving them
higher supervision.
Mr. Gohmert. In Texas, as a part of probation, I could lock
somebody up no more than 2 years on probation. Is that a
possibility under the probation in the high risk you're talking
about?
Mr. Shilling. We have a law that is called a recent overt
act. So if they commit an act that appears to be a sex offense,
we can have them brought into jail and held for civil
commitment as a sexually violent predator. All we need to show
is there was a recent overt act.
Mr. Gohmert. Well, killing a 13-year-old ought to get you
down the road for that. But, you know, we do have the risk
assessment versus the offense-based. Mr. Allen, you've
discussed this to some extent, but what does your national
center endorse when it comes to offense-based versus risk
assessment?
Mr. Allen. Well, the issue is--I mean, there is an offense-
based approach that is written into the Adam Walsh Act. And I
think one of the big challenges is what is being done in the
name of risk assessment across the country is wildly varying,
and the whole question of whether it is based on factual
information like offense as opposed to in some cases some
States are trying to do clinical approaches where there are
personal interviews. There is not a lot of evidence, frankly,
that indicates that one is better than the other. And in my
judgment, if the Congress is interested in approaching
something like this, it should take the same kind of approach
to create uniformity, because there aren't enough experts and
clinicians to do it in the optimum----
Mr. Gohmert. We have had people come in and say they are so
good at risk assessing, they can tell you basically who would
be next to offend almost. And I think about the movie with Tom
Cruise, Minority Report, where, you know, supposedly a
futuristic society has gotten so good that we just arrest
people before they commit the offense.
So I feel like history is a good indicator as to future
performance, and especially when it involves something as
heinous as a sexual assault of a child.
I am sensitive to things like the ex post facto argument.
It seems like that could be a problem where somebody pleads
guilty under an agreement that they do not participate, that
that does create some ex post facto issues, I would think.
And then I've been made aware of a divorce case where
apparently sometimes the parents want to get after each other
and do it through the kids and say, this 12-year-old offended
with this other 11-year-old, and--so it stirs things up in the
divorce.
So I can understand all that and wanting to be careful
about that, but if somebody is 12 and is alleged to have
fondled an 11-year-old, is that something that would require
registration under SORNA?
Ms. Rogers. No.
Mr. Gohmert. Okay. Thank you. I appreciate you clarifying
that. But there is a lot of misinformation out there.
I know that the Justice Policy Institute did what they call
a study. Problems in there for me, it estimated Florida's cost
of implementation be about 29 million, but the State estimated
its own costs would be about 3 million. It estimated about $200
million would be coming from the Federal Government when
actually it is $2.225 billion. And then there is some
extrapolation that doesn't appear to be accurate. So it just
seems like there is so much information that is misinformation.
Like we established at the first, we all want the same
goal. We don't want another child like Jessica to ever have to
suffer again. But we have got to get this right, and I
appreciate my friend from Texas's point that I hate to see this
delayed too much longer. We may need to fix some things, there
may be some things that need dealing with, but we really need
to get people who are registered who are potential threats. And
if they are not in prison, and they are at high risk because of
the offense they committed, then people need to know about it
so they can protect their own children.
Thank you very much, Mr. Chairman.
Mr. Scott. I thank the gentleman.
The gentleman from Texas.
Mr. Poe. Thank you, Mr. Chairman.
I have a letter here from Susan Russell that outlines what
happened to her when she was sexually assaulted after she was
kidnapped and beaten with a tire iron, was left to die in the
wilderness of Vermont, and was rescued by five teenagers.
I would like to ask unanimous consent to include this into
the record.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Poe. You know, we talk about the criminal justice
system and what the purpose is. It would seem to me that it is
twofold. One is that justice occurs for society, like victims,
and also that justice occurs in the sense that we do not want
offenders coming back in the system. Both of those things, I
think, are the goal of what occurs in the courtroom. We have
tried everything in this country, and most of the time crime
issues are State issues only.
You know, we started out with the stocks, and the public
floggings, and the branding, and the hangings, and probation
and jail, then suspended sentences, and therapy and counseling,
and sending folks to prison. Yet here we are in 2009, in the
State of Texas, with a large prison population. We know that,
statistically, if you send somebody to the Texas penitentiary,
60 percent of them will reoffend with a felony within 3 years,
will get caught and will go back. So we have to figure out a
way to keep this cycle from continuing for all of the reasons
you all have talked about, both from the offender's point of
view and from the victim's point of view as well.
It is too bad that Ms. Jackson Lee has left. We sometimes
disagree on things. That is why she sits on the far left and I
sit on the far right, but on the issue of we need to get it
done now----
Mr. Scott. Actually, you are on the left.
Mr. Poe. But on the right from them. I have been accused of
a lot of things, Mr. Chairman, but never of being on the left.
I think that we do not have the time. People do what is
expected of them. States do what is expected of them. If they
are given more time, they will wait until the last minute to do
it. That is why, when I was a judge and ordered community
service, I learned real quick if you gave people 100 hours of
community service, in the last week of their 5-year probations,
they wanted to do their 100 hours. That cannot get done, so I
had to space it out and tell them how much they had to do each
week.
The same is true of legislation. I think, if we postpone
the implementing of this, we are going to have the same
problem.
I will say that I think society has an interest in
separating consensual sex among young people versus the kind of
case that happened to Mark Lunsford's daughter so that when
society pulls up on the Internet registered sex offenders, they
know these are not consensual acts by the offender, and that we
have to do something to clarify that.
We have picked an arbitrary year of 4. In Texas, it is 3.
Maybe we ought to reexamine that whole issue about young people
having consensual sex and then making the offender register for
life. That is different than a stranger on stranger, an adult
and minor child.
I would just ask Mr. Allen: What do you think about that
and about tweaking the law so that that is very clear?
Mr. Allen. I think we are in complete agreement, the intent
of this, and one of the reasons we and others argued for a
tier-based approach is that we agreed with Ms. Carter in that
all sex offenders are not alike. All sex offenders do not
represent the same degree of risk or threat to the community,
so the intent was to target the most dangerous, the most
serious offenders. As I said earlier, we are not opposed to
modifications that make this system work.
Mr. Poe. I will ask both the prosecutor and the defense
attorney what they think, just your opinions.
Ms. Devillier. Yes, sir. Let me point out that Louisiana
has worked very hard at implementing and in trying to do what
we thought Congress was asking us to do, and we believed that
we have achieved substantial compliance with what you were
asking us to do.
The problem is that the guidelines are now telling us, no,
you did not do enough, and you need to do these things. Many
States are taking issue with these things. So what you are
asking us to do is to go to our legislature. Without extending
the deadline, we have issues like the good issue you are
bringing up now.
Mr. Poe. Do you agree with what I just said?
Ms. Devillier. Yes, absolutely.
What you are asking the States to do is to go forward with
legislation when we are not sure that legislation is really
what you want us to do. So that is why we are asking for
breathing room, for a suspension of the time in order to get
these issues ironed out with you guys so that we have a full
understanding of exactly what it is you are asking us to do.
Thank you.
Mr. Poe. I guess my real question is: Do any of you think
that that is something that ought to stay in play? What do you
think?
Ms. Borror. No. There definitely needs to be a distinction
drawn between consensual acts and the violent, serious acts
that we really want the registry to focus on. There are two
reasons for that. One, you do not need to have those low-level
offenders on the Internet registry. I believe that studies are
showing that that actually increases the risk of recidivism and
alienates them from their communities.
Two, doing that dilutes the registry, and it dilutes the
manpower of the Detective Shilling and of other law
enforcement. They cannot focus on just those high-risk
offenders. So we need to have just the high-risk folks on there
so it is an effective public safety tool, and so that we are
not making law enforcement chase all of these red herrings.
Mr. Poe. I think Congress needs to evaluate its priorities.
Especially money should never get in the way of protecting
children. So, if that is our obligation, Mr. Chairman, I think
that we need to resolve that.
I yield back the remainder of my time.
Mr. Scott. Thank you.
I do not think you are going to have much debate about
that. As a matter of fact, the tiered system was offered as a
result of an amendment I offered to the original bill that did
not have any tiered system. The idea, as we just heard, is you
chase over low-level people who get tripped by, as you have
suggested, consensual acts amongst teenagers, are getting
treated the same as the violent criminals, as the older adults
preying on younger children. They need to be separated.
Let me ask the panel: I think there is consensus that we
need to get some kind of extension. There is a difference
between taking issue with some things and just a simple
extension. An extension of time, would that be sufficient? Is
the problem then the regulations rather than the statute?
Ms. Rogers, do you want to comment? Obviously, we need some
time here. Would just a straight extension of time fix most of
the problems?
Ms. Rogers. Sir, I just need to clarify that the Tier III
sex offenders are only for violent, forcible offenses. A
consensual sexual act between a 19-year-old and a 15-year-old
would not be found in that tier.
Mr. Scott. A 19-year-old, more than 4 years senior?
Ms. Rogers. It has to be an aggravated sexual assault, a
forcible sex crime, to be a Tier III.
Mr. Scott. More than 4 years senior, consensual sex between
a 19\1/2\-year-old and just a 15-year-old would not require
registration; is that what you are saying?
Ms. Rogers. No.
Mr. Scott. No, that is not what you are saying, or, yes,
that is what you are saying?
Ms. Rogers. It would not require Tier III registration as a
violent sex offender. It may require registration. It may not.
If it is charged as a misdemeanor, it may not require
registration.
Mr. Scott. Once you get on this list, I mean, you are on
the list as a sexual offender. What we have heard is that that
can be counterproductive because once you are on a publicly
accessible registry, your life is pretty much shot.
Ms. Rogers. But it also may be a charge that is not even
included under SORNA and may not require registration. Not
every sex offense is a registrable offense under SORNA.
Mr. Scott. Right. We said a 19\1/2\- and a 15-year-old,
consensual sex. Does a 19-year-old have to register in a
publicly accessible registry of sex offenders?
Half the people in the audience are nodding their heads
``yes.''
Ms. Rogers. There are a lot of issues that would have to be
examined. It would depend on how it is charged in that
particular jurisdiction, if it is covered under SORNA, how the
case is resolved. What I am telling you is there is a
discussion that it would be as a violent sexual offender, and I
just need to clarify this.
Mr. Scott. However you have to register yourself, you are
on a sexual offender register for an offense where there is a
19\1/2\-year-old high school senior and a 15-year-old. Add up
the months. It is more than 4 years. They get caught. Is that
something where someone would have to be registered for at
least a decade?
Ms. Devillier, do you want to respond?
Ms. Devillier. I would love to, because Louisiana's statute
is just that--carnal knowledge. Some States refer to it as
``statutory rape.'' Ours is that we have been told by the SMART
office, in our response for substantial compliance, that that
carnal knowledge statute, which is exactly what you just
described, requires Tier II--25 years of registration without
relief.
Mr. Scott. Well, I guess there are some of those issue we
might have to deal with.
Are you asking for a delay, Mr. Allen? How long do we need
to delay?
Mr. Allen. I think the answer is dependent on the ability
of Congress to provide significant funding to help the States
with compliance. I do not know whether that answer is 1 year or
2 years. We have heard from a lot of the States. We do not
pretend to be the SMART office or to have the knowledge----
Mr. Scott. But listening to people talk about the cost of
compliance, about $30 million is for California. California is
about 10 percent of the Nation, so you are talking about
several hundred million dollars.
Mr. Allen. Well, first of all, we do not believe that $30
million number is the right number.
Mr. Scott. But we also heard about $12 million for
Virginia. I mean, you are talking the same order of magnitude.
Mr. Allen. I think there is $1 billion. I mean, the
ultimate act basically says such funds as are necessary, but in
the original scoring by the CBO, it talked about, as I recall,
$1.2 billion over 5 years. That included both building the law
enforcement capacity and money to help the States comply. I do
not know whether it is $1 billion or $100 million or what the
number is, but what we hear from the States--and the issues you
have heard today we certainly hear, and these are real issues--
but overwhelmingly what we hear from the States is that the
number one issue is the cost of compliance. It is simply going
to cost more than the loss of the Byrne grant moneys justifies.
So I think that is a very significant point.
Mr. Scott. Part of that calculation is if they spent that
kind of money, would they reduce the incidence of crime. I
mean, I do not think there would be much question in the minds
of States that they would go ahead and spend the money if they
were convinced that it would have a significant impact on
crime. If it does not have a significant impact on crime, then
the question is whether they are going to lose more money or
are going to gain more money. The discussion ought to be
whether or not these are reasonable expenditures if your goal
is to reduce these kinds of crimes.
Mr. Allen. I think the answer is we do not have a choice
but to do it. I mean, the reality is what Washington State is
doing is what every State ought to be doing. They have been
doing it since 1991. They do follow-up. They do visits. A lot
of other States are basically determining that the offenders
are there because of a piece of mail.
This is a protection initiative, not as much a prevention
initiative, but I do think it will help reduce crime. We are
not proposing to do this with other categories of criminal
offenders. The courts have said this is regulatory, not
punitive.
The system in place today in most States--I am not
suggesting Washington State or in some of the other States
here--but in most States, the system just does not work, and
there needs to be a commitment, whether it is with Federal
dollars or with State dollars, to do meaningful follow-up and
oversight of this category of offenders. Right now it is not
being done in most of America.
Mr. Scott. Are there other responses?
Ms. Devillier. Mr. Chairman, are you talking about the
extension now? Is that your question?
Mr. Scott. Yes.
Ms. Devillier. What we would suggest is that the reopening
of the guidelines might instruct the Committee as to how long
of an extension needed to be had, and we certainly would
recommend to the Committee that you have some task forces put
together to instruct you on these issues that the States are
having.
Again, we are committed with you to having those
appropriate sex offenders registered, those who have a risk of
reoffending, but there are significant issues in here that need
to be addressed maybe not only with the guidelines, but some
with the act, like the Ranking Member commented about the age
limits.
As to juveniles in this case, the guidelines say that we
have to register juveniles. Someone gave the example of an 11-
or a 12-year-old forcibly fondling an 11-year-old who does not
have to register, but if it is a 14-year-old who does it to
that 11-year-old, interfamilial, they will have to register.
These are issues that States are grappling with.
I would suggest to the Committee that we put together task
forces and that we delay the implementation until we can get
these issues resolved posthaste. We are ready, willing and able
to work with the Committee, and we encourage you to get all
stakeholders together to help you and us come to something that
will lead us to some more uniformity, reasonable uniformity,
about our sex offender policy in this Nation. Thank you.
Mr. Scott. Thank you.
Ms. Rogers. Sir, with respect to the implementation by
tribal jurisdictions, SORNA allowed for two 1-year extensions
for tribes, and then that they comply within a reasonable time
period, but there is no definition with respect to what that
reasonable time period is. So even the SMART office, during my
tenure, we were at a little bit of a disadvantage in knowing
what to tell tribes with respect to their deadline for
implementation.
Mr. Scott. Thank you.
If there are no other comments--last comment.
Mr. Shilling. Mr. Chairman, as I was sitting in Seattle
yesterday pondering my testimony and waiting for a snowstorm to
clear, I was watching CNN. I saw President Obama signing the
stem cell research Executive Order.
One of the things that he said is: That is why today I am
also signing a Presidential memorandum directing the White
House Office of Science and Technology Policy to develop a
strategy for restoring scientific integrity to government
decisionmaking to ensure that in this new Administration we
base our public policies on the soundest science; that we
appoint scientific advisers based on their credentials and
experience, not on their politics or ideology; and that we are
open and honest with the American people about the science
behind our decisions.
When I saw that, it was like a light bulb went on. I
thought: That is the whole reason for this testimony. That is
the whole reason I am going to Washington, DC, because we are
not saying get rid of the Adam Walsh Act. To the contrary,
there are many good things about it, but there are also some
things that really need some reworking.
What I am asking you to do is set up a panel of experts to
help you fix this so that it is workable and so that we can
protect our children in the best way possible.
Thank you.
Mr. Scott. A closing comment or closing questions from
Judge Gohmert.
Mr. Gohmert. That is so ironic. You were sitting there,
suffering the effects of global cooling in the snowstorm,
listening to the discussion about science being so important in
the discussion of stem cells, of which there are very varied
opinions. So that is one of the problems we have here. There
are very diverse opinions, and it is getting down to what are
the facts, because opinions are like noses. All of us have one.
We need to get to the real facts.
Thank you very much for your testimony.
Mr. Scott. I would like to thank all of the witnesses for
their testimony. Members may have additional written questions
for our witnesses, which we will forward to you and will ask
you to answer as promptly as you can so that the answers may be
part of the record.*
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*Note: There were no additional questions submitted to the
witnesses.
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Without objection, the hearing record will remain open for
1 week for the submission of additional materials.
Without objection, the Subcommittee stands adjourned. Thank
you very much for your testimony.
[Whereupon, at 4:49 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Louie Gohmert, a Representative in
Congress from the State of Texas, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security
Prepared Statement of the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Ranking Member, Committee on the
Judiciary
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman, for your leadership in convening today's
very important hearing on the Sex Offender Notification and
Registration Act (SORNA): Barriers to Implementation
The Sex Offender Registration and Notification Act (SORNA) became
public law on July 27, 2006, as Title I of the Adam Walsh Act. It
created a national registry for all sex offenders, and required States
to participate in and comply with the requirements of SORNA or lose 10%
of Byrne Grant funding. The deadline for compliance by States is July
2009, and to date not a single state has been found in compliance.
SORNA authorizes the AG to give two one-year extensions upon request.
According to the Department of Justice (DOJ) website, twelve states,
four Tribes, and Guam have received a one-year extension. My State of
Texas is not one of them.
In fact, a New York Times article recently reported that the DOJ
admitted that as of December 2008, only four states, Arizona, Idaho,
Louisiana and Ohio, had tried to fully comply with SORNA. In January
2009, the DOJ denied Ohio's application.
Timely compliance by any state is doubtful. The Office of the
Inspector General (OIG) concluded last December that the States ``will
not fulfill their SORNA requirements by July 2009,'' according to an
evaluation by the Office of Inspector General, U.S. Department of
Justice.
The purpose of this hearing is to explore and gather information
about problems with implementation of SORNA, to consider whether
Congress should extend the current deadline of July 2009, as urged by
many including John Walsh--the father of the namesake of the Adam Walsh
Act, and to seek alternatives to the present barriers.
SORNA established a national sex offender registry with the hope
that sex offenders could not evade detection merely by moving from one
state to another. It also sought to eliminate discrepancies among state
registration and notification systems that might hinder public safety.
Under SORNA, each jurisdiction must change its own State sex
offender registration and notification system so that it complies with
detailed requirements set forth in SORNA. The information input into
each jurisdiction's registry is then merged into a national registry.
If a jurisdiction fails to comply with SORNA, the jurisdiction loses
10% of its Byrne Grant funding.
SORNA requires all individuals convicted of a sex offense to
register. Sex offense is defined to include all criminal offenses with
an element of sexual act or sexual contact with another. It also
includes certain specific crimes against minors, which is defined to
include offenses against a minor that involve kidnapping; false
imprisonment; video voyeurism; solicitation to engage in sexual
conduct; solicitation to practice prostitution; possession, production,
or distribution of child pornography; and other listed offenses.
There is an exception to the definition of ``sex offense'' for
consensual sexual conduct if the victim was an adult (and not under the
custodial authority of the offender at the time of the offense) or the
victim was at least 13 years old and the offender was not more than
four years older than the victim. A foreign conviction also is not
considered a sex offense under SORNA ``if it was not obtained with
sufficient safeguards for fundamental fairness and due process for the
accused under guidelines or regulations'' established by the Attorney
General.
There are certain problems with SORNA that many seek to address.
For example, SORNA requires juvenile sex offenders aged 14 and older to
register, even when the juvenile was not tried as an adult, if the
offense is comparable to or more severe than aggravated sexual abuse.
For juveniles who fall within this category, registration and
notification requirements are the same as for adults.
Under SORNA, all sex offenders must report in person. The frequency
and duration of these reporting requirements vary depending on a three-
tier classification based solely on the offense of conviction. The
length of the registration periods range from a minimum of 15 years to
a maximum of life, and the frequency of reporting varies from every
three months to once every year.
Under SORNA, offenders must provide their name, social security
number, home address, name and address of employer, name and address of
school, license plate number and description of vehicle, and any other
information required by the Attorney General. Each jurisdiction must
provide a physical description of the offender; the text of the law
defining the offender's criminal offense; the criminal history of the
offender; registration status and outstanding arrest warrants; a
current photograph; a set of fingerprints and palm prints; a DNA
sample; a photocopy of a valid driver's license or identification card
issued by the jurisdiction; and any other information required by the
Attorney General.
SORNA does endeavor to protect certain information. For example,
SORNA prohibits a jurisdiction from publicly revealing the identity of
the victim, the social security number of the offender, arrests that
did not result in a conviction, and any other information exempted from
disclosure by the Attorney General.
Each jurisdiction is given discretion on whether to publicize the
name of the employer and school, and any information about a ``tier I''
sex offender unless convicted of a specified offense against a minor. A
``tier 1'' sex offender is an offender that does not fall within the
definition of the other two tiers. It includes all misdemeanor
offenses, as well as any other sex offense not otherwise listed.
All other information must be input into the public registry. Each
registry also must have search capabilities.
SORNA imposes stringent notification requirements on jurisdictions.
After each registration, including both the initial registration and
each update, the official must notify: (1) the Attorney General; (2)law
enforcement; (3) school and public housing agencies in each area in
which the offender lives, works, or attends school, and each
jurisdiction from or to which a change in residence, work, or schooling
occurs; (4) any agency responsible for conducting employment-related
background checks under section 3 of the National Child Protection Act
of 1993; (5) social service entities responsible for protecting minors
in the child welfare system; (6) volunteer organizations in which
contact with minors or other vulnerable individuals might occur; and
(7) any organization, company, or individual who requests such
notification pursuant to procedures established by the jurisdiction.
Finally, SORNA regulations state that it took effect on the date of
enactment, July 27, 2006, and has retroactive application; it applies
to all sex offenders, ``including those whose convictions predate
SORNA's enactment.
SORNA, with its goal of national uniformity, limits a State's
discretion on how to establish and run its own State registry. To
comply with SORNA, States must change their own systems to comply with
the federal system. The extent of that change depends on each State's
existing State registry program. As a result of the national ``one-size
fits all'' approach, however, compliance appears to have become a
complicated and costly endeavor, and certain States and State
organizations have voiced concerns about SORNA or portions of SORNA.
Existing barriers to and complaints about SORNA focus on five main
areas, which often overlap:
SORNA's use of an offense-based classification system
instead of one based on risk assessments;
SORNA's mandatory inclusion of certain juveniles as
young as 14 years old, even when not tried as adults and merely
adjudicated of offenses;
Mandatory retroactive application of SORNA;
Legal impediments to implementation; and
The high cost of implementing SORNA as compared to
its benefits and the loss of Bryne Grant monies.
Again, thank you Mr. Chairman. I yield the remainder of my time.
Prepared Statement of Evelyn Fortier, Vice President for Policy,
RAINN (Rape, Abuse & Incest National Network)
Chairman Scott, Ranking Member Gohmert, and members of the
subcommittee, thank you for inviting me to submit this brief statement
for the record of today's hearing. RAINN welcomes the opportunity to
discuss Title I of the Adam Walsh Child Protection and Safety Act of
2006 (P.L. 109-248), also known as SORNA.
Founded in 1994, RAINN is a non-profit organization. Its mission is
to end sexual assault in the United States by improving services to
victims, educating the public and leading national initiatives to
prevent sexual assault, and ensure that rapists are brought to justice.
We carry out this mission in three main ways:
First, we offer free and confidential crisis
intervention services to victims of sexual violence through two
national hotlines, in partnership with affiliated rape crisis
centers and thousands of hotline volunteers and rape crisis
personnel. RAINN created in 1994, and continues to operate--in
partnership with over 1,100 rape crisis centers located in
every state and the District of Columbia--the National Sexual
Assault Hotline, which is accessible to victims as well as
their friends and family members around the clock at at 800-
656-HOPE. Several years ago we also launched the award-winning
National Sexual Assault Online Hotline, which is now accessible
online 24/7 at www.rainn.org. RAINN's hotline programs are
federally authorized under Section 628 of the Adam Walsh Act.
Second, RAINN engages in public education and
outreach by which we reach millions of Americans every year. An
example of one such activity is ``RAINN Day,'' our annual
college outreach program, which operates on over a thousand of
the nation's college campuses each September. RAINN's
education/outreach and technical assistance activities also are
authorized under Section 628 of the Adam Walsh Act.
Third and finally, we advocate for national policies
and services that will benefit victims of sexual violence, for
funding to support such services, and for legislation to ensure
that sexual assailants are brought to justice.
In recent years, the nation's attention has been gripped by a
series of wrenching, high-profile cases involving innocent young
children and youths who were targeted by sexual predators in disturbing
acts of violence. The cases of Adam Walsh, Jacob Wetterling, Jessica
Lunford, Amie Zyla, and others immediately come to mind--stirring our
emotions and provoking our outrage. Yet it is important to remember
that, in addition to these gripping cases, there are hundreds of
thousands more children, youths, and adults who also will suffer the
life-shattering effects of a sexual assault.
According to the U.S. Department of Justice, 1 in 6 women and 1 in
33 men can expect to become victims of sexual violence during their
lifetime. In 2007, there were some 248,300 victims of sexual assault.
Every two minutes, someone in the United States is sexually assaulted.
With this in mind, we offer the following comments about SORNA:
A Public Registry Offers Valuable Information to the Public. The
primary purpose of a public registry is not to reduce recidivism among
sex offenders, but to inform. (While a public registry such as SORNA
may have the additional benefit of deterring additional crimes by sex
offenders [who know they are being tracked by law enforcement], it is
not solely on this basis that SORNA should be evaluated.) A public
registry exists for the community (so that parents can check it and
take reasonable precautions to safeguard their children), and it also
aids police in their efforts to identify and track convicted offenders
on their beats. No public registry can offer 100% accurate information
about sex offenders living in one's community--because many sex crimes
go unreported and the perpetrators will, therefore, evade detection--
but having access to the information that a public registry provides is
still of value. This is especially true today, with the proliferation
of two-career families, who have less time to spend on activities
outside of work or home (such as neighborhood block parties) which
could lead to close personal relationships with other community
members.
SORNA's Emphasis on Uniformity is Positive. Title I of the Adam
Walsh Act creates a comprehensive national system for the registration
of sex offenders, defining three tiers of sex offenders (depending on
the severity of their crimes). A uniform sex offender registration
system, if implemented successfully by all jurisdictions, promises to
eliminate inconsistencies in the various states' laws. Before the
passage of the Adam Walsh Act, Congress heard about legal loopholes
that enabled sex offenders to ``forum shop,'' i.e., find jurisdictions
with less stringent laws to evade sex offender registration and
notification requirements. Prior to the enactment of the Adam Walsh
Act, Congress also heard that as many as one in five sexual offenders
who were required to register would eventually go ``missing'' from the
system. By encouraging uniformity across jurisdictions, the Adam Walsh
Act should help prevent sex offenders from evading detection. The Adam
Walsh Act also provides an avenue for states to share data about sex
offenders, which is a positive feature of the Act.
An Objective Offender Classification System Promotes Fairness.
SORNA classifies offenders into three categories (tier I, tier II, or
tier III), depending upon the severity of their crimes. For example,
the tier III offender, considered the most serious of the three
categories, will have committed an offense that is punishable by more
than one year in jail and is at least as severe as certain listed
offenses, and involves kidnapping a minor or occurs after the offender
becomes a tier II offender. The tier III offender is subject to
lifetime registration under SORNA.
Some have argued that classifying offenders using an actuarial risk
assessment system would be preferable to SORNA's offense-based
classification system. We note, however, that an offense-based
classification system is far more objective than a risk-based
assessment scheme. An objective system may be the best way to achieve
fairness for all. Also, an objective system may also be far less costly
to administer than a subjective, risk-based assessment system because
the objective system does not obligate police departments across the
nation to hire psychologists or other professionals to individually
assess every offender's risk after they have already been tried and
convicted.
More Research Is Needed Concerning SORNA and Juveniles. SORNA
requires certain juvenile offenders aged 14 years and above to be on
state and national registries with adult offenders. Some have argued
that juveniles tend to have fewer victims and on average commit less
serious offenses than adults and therefore need not appear on such
registries. We would urge Congress to tread carefully before amending
the Adam Walsh Act in this area.
In revisiting the Adam Walsh Act's treatment of juvenile offenders,
Congress should consult with experts in child development and seasoned
child sex crime prosecutors. It would be helpful to know, for example,
whether juveniles who were tried as adults, or juveniles who have
committed especially heinous violent offenses, are less likely than
adults to re-offend? Moreover, is the risk of re-offending the same for
the fourteen-year-old juvenile offender as it is for juvenile who is
sixteen or above?
In considering these and related questions, it also is important to
remember that the risks of any miscalculation in this area will be
borne by future victims, as well as their friends and family members.
Congress Should Make Adequate Funding Available For the Walsh Act's
Implementation. The goals of the Adam Walsh Act have not been realized,
and this is due in no small part due to the high financial costs of
compliance with the Act. In order to achieve substantial compliance
with the Adam Walsh Act, many jurisdictions must revisit their existing
sex offender registration and notification systems and make significant
changes to their existing systems. It is only fair that Congress
provide the resources authorized under the Act to ensure its successful
implementation. Providing adequate funding is vitally important to the
successful implementation of the Adam Walsh Act.
Congress Should Enact A Short-Term Extension of The Adam Walsh Act.
Congress set July 27, 2009 as an initial deadline for SORNA compliance,
but final guidelines for SORNA compliance were not published until July
1, 2008. Numerous jurisdictions have complained of hurdles--such as a
lack of funding--that will impede their meeting the July 27, 2009
deadline. It is our understanding that no jurisdiction has achieved
substantial compliance with SORNA to date. With this in mind, RAINN
would not object if Congress were to institute a one-year extension of
the Adam Walsh Act.
In closing, thank you for the opportunity to present this
testimony. We applaud the members of the subcommittee for taking the
time to examine issues relating to SORNA's implementation.