Saturday, March 14, 2009

Implementing SORNA May Prove Impossible

Providence Journal (R.I.) : Implementing sex offender registration law may prove impossible

Implementation of the law has proven to be a legal and economic nightmare. Some judges have ruled the act unconstitutional. Civil liberties groups, criminal defense attorneys and, surprisingly, even some law enforcement officials, are crying foul. Last week, a veteran sex crimes prosecutor in Louisiana told a subcommittee of the House Judiciary Committee in Washington that implementing the law might actually result in fewer convictions of criminals who prey on young children because it will be hard to get offenders to plead guilty if they know they will be required to register on a Web site as a sex offender for the rest of their lives.

About a dozen states have gone about revising laws, reclassifying offenders and setting up new computer systems to try to comply with the law. But to date, all of them have failed to convince the Department of Justice — which has set a July 27 deadline for compliance — that they have done enough to do what SORNA requires.

The penalty for non-compliance is steep: states that don’t comply will lose 10 percent of the federal financing they receive for sex offender management programs and other law enforcement and justice initiatives. But many states may opt out nonetheless. Already, cash-strapped California has informed the Justice Department that it will not implement SORNA even though it will mean a loss of about $2 million in federal funds this year. The reason is clear: it is estimated that it would cost California more than $59 million to implement everything mandated by the new law.

Attorney General Patrick C. Lynch said that Rhode Island will make an effort to comply, and that legislation is being drafted to make the necessary changes in the law, though it probably won’t be submitted to the General Assembly for consideration until 2010. That means the state won’t meet the Justice Department’s July deadline and will have to ask for at least one, if not two, one-year extensions so it can continue to receive the full amount of money for sex offender management programs and other law enforcement and justice initiatives. To get an extension — which must be requested by April 27 — a state must make the case that it is making an effort to “substantially comply” with the mandates of SORNA. This year, the 10 percent at stake for Rhode Island is $80,000.

But this may all be just a postponement of the inevitable. In an interview last week, Lynch candidly admitted that he doesn’t know whether Rhode Island will ever be able to comply with the mandates of the SORNA law — and whether it would be good public policy to do so.

He cited the “prohibitive cost” of implementation. It would cost millions of dollars to set up a centralized computer bank and hire workers to run it and chase down errant offenders who fail to register or update information about their whereabouts, he said. Implementing the mandates of SORNA in Rhode Island would also require the General Assembly to enact sweeping changes to the state’s juvenile-justice and sex-offender reporting and classification laws.

Under SORNA, a sex offender who is 14 or older would be required to register, with a photo, on the state’s Web site if the sex offense they were brought to court for involved violence or a victim younger than 12. The minor offender — even those whose cases go through secret Family Court trials — would have to update his registration information three times a year for at least 25 years, perhaps for the rest of his life.

Then there’s the issue of retroactivity, another “major bone of contention,” said Lynch. A flood of lawsuits have been filed around the country by defense lawyers representing sex offenders who were not required, as part of their original sentence, to register but who are now being told they must do so because of SORNA. Even those who completed sentences 30 or 40 years ago are now being required to register if they are subsequently convicted of another offense, even if the crime isn’t of a sexual nature.

“You’ve been around the State House. What do you think the chances are” of making such broad changes in the law in just one or two legislative sessions? Lynch asked. “Probably limited and that’s being generous. So we have a fight on our hands but I think we are obligated to bring it to them …”

One of those who is sure to weigh in is Michael A. DiLauro, a Rhode Island assistant public defender who is the legislative liaison for the public defender’s office, which represents indigent defendants. DiLauro calls the mandates of SORNA “both poor social and fiscal policy.”

“Statistics show that children are most often sexually assaulted by a family member or acquaintance. Thus the registration and community notification provisions of the Adam Walsh Act provide a false sense of security and misallocate resources better spent on treatment and other community support mechanisms for offenders. These have proven effective in reducing recidivism.” But registration and community notification, said DiLauro, “can lead to ostracism, homelessness and unemployment, thereby forcing offenders underground, beyond the reach of treatment providers and monitoring by probation and parole officers.”

Since SORNA became law in 2006, there have been nearly 100 cases prosecuted in the federal courts, including the Rhode Island case, where convicted adult sex offenders have been charged with failing to register, a crime punishable by up to 10 years’ imprisonment and a $250,000 fine.