THE COUNCIL ON SEX OFFENDER TREATMENT
WHITE PAPER: ADAM WALSH ACT
The Council on Sex Offender Treatment (CSOT) former Chairman, Dr. Walter Meyer formed a taskforce in May 2008 to study the implications of the federal Sex Offender Registration and Notification Act (SORNA), (aka the Adam Walsh Protection and Safety Act of 2006) on Texas. Various State agencies were invited to participate in this process. The Council requested input with regard to processes and procedures from the following agencies: Texas Juvenile Probation Commission, Texas Department of Criminal Justice, Texas Youth Commission, Community Corrections and Supervision Department, Department of Public Safety and the Governor’s office.
The purpose of this White Paper is to present information that will clarify the impact of enacting or not enacting this legislation. Further, recommendations will be made to the legislature for their consideration.
The SORNA and AWA are federal legislation that affects states’ registration/notification laws and attempts to make all states uniform with minimum standards that Congress has required to be included in every state’s laws. This legislation has generated much debate and concern throughout the country.
States are free to not implement SORNA but non-compliance will result in a 10 percent reduction in Byrne Justice Assistance Grant (JAG) funding. In 2007, Texas received $33 million or 3.3 million for sex offender registration. In 2008, Texas received $12 million or 1.2 million in Byrne funds. In FY 2009 the Federal Budget eliminates all Byrne funding and consolidates all Justice Programs into four competitive grants, each with an authorization of $200 million. The 2009 stimulus package allocates an additional $2 billion for the Byrne Justice Assistance Grants. It is unknown at this time how the additional funds will be distributed to states.
The AWA implementation deadline is July 27, 2009, but states can request up to two 1-year extensions of the implementation deadline. Many states are addressing whether or not they can afford to comply with SORNA as in most cases the cost of implementing it far outweighs the penalty (10%) loss of Byrne funds. It is difficult to accurately calculate the costs on state agencies and local law enforcement agencies and others in complying with SORNA.
As of January 2008, seven states have passed versions of the AWA. Five states have submitted compliance packages and all five were informed that they did not meet of “substantial compliance” with AWA. States can request up to two 1-year extensions of the implementation deadline. Six states and 1 territory have been granted a one-year extension. Many states are researching filing an extension due to the complexities of implementation and fiscal impact of complying with the AWA. Several states have completed fiscal analyses for implementation of the AWA as follows:
The AWA establishes the federal Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) office to set guidelines for registering people convicted of sex offenses, develop software for the registry and assist state, local and tribal governments in implementing their registries. The office can also help states enact registry provisions that are far more restrictive than those required by AWA. Additionally, the Act requires the registration of children who are age 14 or older for certain offenses; takes away the Judge’s discretion in juvenile cases; establishes a tier system for risk assessment; increases the number of offenses for which an individual must register; requires people to provide more extensive registration information, including photos; expands the amount of information available to the public regarding people on the registry; makes the registry retroactive, under certain conditions; requires states to criminalize a failure to register; and provides a criminal penalty for a maximum term of imprisonment greater than one year.
For the purpose of this paper, the Council has chosen to focus on the following areas: Tier Levels vs. Risk classification; Registration Requirements; Community Notification (i.e. employment and school information); Offenses that would need to be changed or added to Texas law, Concerns, Summary, and Recommendations.
Tier vs. Risk: The AWA definition of a sexual offense means a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense against a minor; a Federal offense; a military offense; or an attempt or conspiracy to commit an offense. A foreign conviction is not a sex offense if it was not obtained with sufficient safeguards for fundamental fairness and due process. Under the AWA, a “sex offender” is a person convicted under the law of any jurisdiction of any kind of sexual offense, broadly defined. The tier levels are not based on dangerousness or risk of re-offense but the offense of conviction.
The AWA requires Tier I offenders to register for 15 years with the potential to de-register after 10 years if they have maintained a “clean record”, meaning the registration period shall be reduced if the person has not been convicted of any offense for which imprisonment for more than 1 year not being convicted of any sexual offense, successfully completing any periods of supervised release, probation, and parole, and successfully completing an appropriate sex offender treatment program certified by a jurisdiction. Any revocation of supervision disqualifies the offender.
There is no de-registration for Tier II offenders, who must register for 25 years. Tier III offenders must register for life, however, juvenile Tier III offenders, who are adjudicated delinquent, have the potential to de-register after 25 years if they have maintained a clean record as defined above.
The AWA classifies sex offenders into offense based tiers, which does not give the public information about the offender’s risk to re-offend. The SMART office has indicated that if registration is based on risk assessment the State would not meet substantial compliance. The implementation of the AWA will increase the workload of local law enforcement due to numbers of offenders who may fall under the classification of Tier III, which requires verification four times per year, and Tier II, which requires verification two times a year. The Austin Police Department reports a 178% increase in verifications only from 1,350 sex offenders to 3,756 offenders (Austin Police Department Sex Offender Apprehension and Registration Unit Report entitled “Cost of Compliance”, January 2009).
Currently, Texas law requires a risk level of low, moderate or high be assigned to offenders who are required to register as a sex offender. The State uses the Static 99, the Hare Psychopathy Checklist Revised and Level of Services Inventory on all inmates currently serving an offense for which sex offender registration is required at the time of their release. The CSOT is currently involved in a research project that will identify which instrument or group of instruments will accurately predict the risk of re-offending. Hopefully, this cutting edge research will provide a structure to more accurately protect our citizens and provide a uniform standard and structure to asses risk levels. This will also be fiscally more responsible than what is currently being done in this area.
About half of the states in the U.S. assign offenders to one of three risk levels and notify the public differentially according to the offender’s risk. Other states employ broad community notification, publicizing the location of all sex offenders without regard for risk assessment (Matson & Lieb, 1996).
Public policy informed by scientific evidence is more likely to be effective in achieving goals of community protection (Levenson & D’Amora, 2007). Notification laws appear to presuppose most sexual offenses are committed by strangers. However, historically research has indicated that only a small percentage of all sexual assaults are committed by strangers.
There is no evidence that community notification reduces sex offense recidivism or increases community safety. The only study to date found no statistically significant difference in recidivism rates between offenders who were subjected to notification in Washington (19% recidivism) and those who were not (22% recidivism). Sex offenders who were subjected to community notification were, however, arrested more quickly for new sex crimes than those not publicly identified. It was found that 63% of the new sex offenses occurred in the jurisdiction where notification took place, suggesting that notification did not deter offenders or motivate them to venture outside their jurisdictions to commit crimes. Based on these findings, the authors concluded that community notification appeared to have little effect on sex offense recidivism (Schram & Milloy, 1995).
Sex offenders, like other criminals, are an extremely heterogeneous group and do not fit into a standard profile. Sex offenders fall into numerous categories, which have varying levels of dangerousness. Higher risk offenders require more intensive services, while lower risk offenders may require little or no services. In fact, evidence suggests that administering intensive services to lower risk offenders either has no effect on recidivism or may even increase recidivism (Bonta, 2001).
High-risk offenders represent approximately 8-10% of sex offenders. These extremely dangerous high-risk offenders tend to recidivate violently, including sexual violence, at a rate of 55% (Hildebrand, 2004). Research shows that psychopathic sex offenders recidivate violently at an 82% rate within 2 years (Hare, 2000). Highly criminal and sexually deviant offenders clearly have different needs and risk profiles than a low criminal and non-sexually deviant offender (Serin, Barbaree, Seto, Malcolm, & Peacock, 1997). Identifying risk levels as opposed to the Tier Level seems to be a more responsible way to address community safety.
Registration Requirements: Sensationalized media accounts of crimes that have a sexual component have resulted in laws that have cost and will cost states and the federal government millions of dollars to support registries. The fact is that there is no evidence that public registries reduce sex crimes. The registries however, have provided a false sense of security to the general public. The Adam Walsh Act presents the argument that individuals convicted of sex offenses should register because they are most likely to reoffend. There is no mention of the research that indicates treatment lowers recidivism rates among adult and juveniles. There is no mention of the fact that children with sexual behavior problems have a very low recidivism rate and there is no understanding of the complex realities of sexual offending.
Research both from the victims’ and the offenders’ experts have long indicated that sex offenses are committed by people that the victim knows. That is family and close friends not the stranger. Additionally, most people who commit sex offenses are first-time offenders and therefore not on the registry.
A public registry can negatively impact an adult or juvenile’s ability to re-integrate in a wide range of areas. It also impacts their family, spouse and children of offenders. Registries can impede future rehabilitation (i.e. access to employment, housing and education) and potentially increase recidivism rates.
Offender employment has always been a significant issue. Under the AWA, the employer’s address must be listed on the public web site. This means that potential employers will not hire sex offenders or fire the ones they have hired. These individuals will then not be able to support themselves, and will not be able to pay for the services that the court has ordered like treatment and victim restitution. Many employers have been responsible in their hiring of offenders and those on supervision are not allowed to work in high-risk jobs.
The requirement of registration of school information and public listing of the address of a secondary school or a registered juvenile sex offender also has far reaching negative impact on the juvenile and their family. The AWA 114 requires a sex offender to provide “the name and address of any place where the sex offender is a student or will be a student”. The individual must report when he or she commences school attendance and changes schools or the place of school attendance. The guidelines state that this requirement applies only to schools the offender physically attends. Secondary schools and private schools are included.
These youth can be ostracized and physically hurt. Parents may demand information or that the juvenile offender be expelled or transferred all of which the school cannot do. Their ability to change their lives will be further hindered. They are the lowest risk for recidivism and have the greatest potential for positive change and this could be lost because of registration.
Criminal Offenses That Need to be Added to Texas Law: In order for Texas to become Adam Walsh compliant, the following offenses must be added as registrable offenses (Austin Police Department Sex Offender Apprehension and Registration Unit Report entitled “Cost of Compliance”, January 2009):
Other modifications may be necessary to comply with the AWA by the Texas registering agency including but not limited to:
Summary and Recommendations:
The purpose of the AWA is to: protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet Safety and to honor the memory of Adam Walsh and other child crime victims. Unfortunately, this legislation is not based on the current professional literature and research concerning sex offenses. Despite its worthy purpose, if enacted the resulting consequences could do the opposite of the intended purpose. Instead of protecting children and the community it would put them in harm’s way.
It is important to understand that not all sex offenders are the same. The literature states that there is no profile for a sex offender. The Act however, seems to be based on a profile as it places offenders in levels based on the offense and does not take into account the individual’s risk factors. There are offenders who have one victim and offenders, who have hundreds of victims; male and female offenders; children, adolescent and adult offenders. Any of these offenders could be charged with the same offense, and if the individual risk factors are not taken into account then how does this make the community safer. The truth is that there are offenders who have the offense of Indecency with a Child and are considered low risk. However, when evaluated with polygraphs and plethysmographs it is discovered that they have multiple paraphillic arousal and multiple victims. Classifying all sex offenders in tiers because of the title of offense does not protect society. The Council has very serious concerns if the AWA becomes law in Texas:
The Council on Sex Offender Treatment believes that our communities and our children would be better served and protected if the “worst of the worst”, the predatory high-risk violent sex offenders be the focus of restrictive legislation. Knowing and understanding the research we need to implement laws that will be successful in reducing recidivism and not the unintended consequence of increasing recidivism. Lifestyle instability, poor social supports, and negative moods have been found to predict sexual recidivism (Hanson & Harris, 1998, 2001).
Research indicates that notification; registration and severe restrictions have a negative impact on sex offenders thereby increasing recidivism (Lees & Tewksbury, 2006; Levenson & Coter, 2005a, 2005b; Levenson & D’Amora, 2007; Levenson, D’Amora & Hern, 2007; Zevitz, 2006). Although there may be intuitive appeal to the idea of notification statutes, doubt remains as to whether these laws actually reduce recidivistic sexual violence (Mercado, Alvarez, Levenson, June 2008).
Research has examined the unintended or collateral consequences of notification. Levenson and Coter (2005a) found that nearly a quarter of registered offenders surveyed in Florida reported having lost jobs or homes as a result of Megan’s law, while nearly two thirds reported social isolation associated with public disclosure. The research continues in the states of Connecticut, Indiana, Kentucky, Indiana and Wisconsin. Research indicates that severe restrictions increase transience and homelessness, which may force offenders to move away from supportive environments and employment opportunities (Levenson, 2007, in press; Levenson & Coter, 2005b; Levenson & Hern, 2007).
Research has proven that treatment works and that treated sex offenders especially juveniles are a very low risk to re-offend (Hanson & Harris, 2001). Therefore, placing someone on lifetime registration and subjecting him or her to such hardship may be counterproductive. The AWA will be costly both in dollar and in lives. Texas should consider the consequences when deciding whether to endorse this legislation.
Presently, the Council on Sex Offender Treatment is engaged in a research project that is attempting to identify dynamic risk assessment instruments that will provide more accurate risk levels of sex offenders. Low risk offenders who have successfully completed treatment and supervision should not be the focus of the limited state and county resources. Instead high-risk offenders should be the focus. Texas has stringent laws requiring treatment and has set high treatment standards of practice for Licensed Sex Offender Treatment Providers. Juvenile Judges have discretion as to whether or not to register a juvenile, this should not be lost as it would be with the AWA.
The Council Recommends that: