There are few people as uniformly despised as people with sex offense convictions. It’s not hard to understand when you’re inundated with overblown reports concluding that all sex offenders are sexually recidivistic, incurable, and predatory. Overcome by outrage and fear we support any measures to protect against victimization, even if the proposed legislation is a sweeping and draconian measure. The last twenty-five years is a lasting testament to our panicked response to media hysterics and hyperbole, especially at the federal level.
During this time, we passed increasingly stringent SORN (sex offender registration and notification) policies to increase the punishment and supervision for people convicted for sex offenses. SORN policies were designed as a tool for law enforcement, but has since mutated into a tool to legally discriminate against registrants. Due to the proliferation of SORN legislation, over 850,000 registrants face a lifetime of severe consequences that create ripple effects touching their friends, families, and communities. We fail to comprehend that the registry has ensnared more than rapists and child sexual abusers. Teenage sexters, public urinators, people convicted for carrying HIV, and other people are also listed on sex offender registries. Each in turn face society’s harsh, non-discerning judgment.
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JACOB WETTERLING CRIMES AGAINST CHILDREN AND SEXUALLY VIOLENT OFFENDER REGISTRATION ACT (1994)
In 1989, a masked gunman kidnapped 11-year-old Jacob Wetterling while he played outside. In September 2016, almost 27 years later, Danny Heinrich confessed to Jacob’s kidnapping, sexual assault, and murder. In response, Patty Wetterling advocated for a bill requiring sex offender registration to ensure another family would not lose a child to violence. At that time, there was no uniform system to track and monitor people convicted of a sex offense. Then President Bill Clinton signed the Wetterling Act into federal law as part of the 1994 Violent Crime Control and Law Enforcement Act in an attempt at uniformity.
The Wetterling Act sought to increase public protection from the threat of sexual violence by reducing the likelihood of a registrant sexually recidivating, and by providing law enforcement with an investigative tool for pending sex offense cases.
Under the Act, all states were required to develop and maintain registries for individuals convicted of sexually violent offenses or crimes against children, as well as individuals determined to be sexually violent predators. Under these registration provisions, registrants were legally obligated to provide law enforcement authorities with valid contact information and other identifying data upon release from either incarceration or supervised release, or within 10 days of establishing any residency anywhere.
The Act mandated registrants to provide their fingerprints, name, photograph, address, conviction history, and other identifying factors. Sexually violent predators were also required to provide documentation of treatment.
Following initial registration, law enforcement authorities were required to verify a registrant’s address every 90 days for sexually violent predators and annually for all other registrants. Sexually violent predators were required to register until a court determined they weren’t likely to commit predatory sexually violent offenses. All other registrants were required to register for 10 years.
Any registrant who either failed to register or maintain current information was subject to criminal penalties in the state in which they were registered. States were required to be in compliance with the provisions of the Act by 1997. Non-compliant states would be subject to a mandatory 10% reduction in their Byrne JAG funding, which would be funneled to compliant states, if they failed to establish registration schemes. States could be granted a two-year extension if they were found to be making a good faith effort to implement the Act’s mandates.
Amended four times by Megan’s Law, the Pam Lychner Act, the CJSA Appropriations Act, and the Campus Sex Crimes Prevention Act. In 2006, the Act was replaced by the AWA.
Visit https://goo.gl/v49FxK for the text of the Wetterling Act.
FEDERAL MEGAN'S LAW (1996)
In 1994, Jesse Timmendequas, a recidivist pedophile, lured Megan Kanka to his house, where he sexually assaulted and strangled the 7-year-old girl. Her parents believe that Megan’s death could have been prevented had they known Timmendequas was a repeat sex offender. As a result, they advocated for a bill requiring community notification whenever a dangerous sexual predator moves into the neighborhood. In 1996, then President Bill Clinton signed Megan’s Law into law as an amendment to the Wetterling Act.
The Wetterling Act and Megan’s Law collectively provided for sex offender registration and notification (SORN). In addition to the goals of the Wetterling Act, Megan’s Law sought to increase public awareness of nearby registrants so that the community could take preventative measures and reduce the threat of sexual violence.
Under the Wetterling Act, sex offender registration information was only available to law enforcement authorities. Public access to the registry was prohibited unless releasing information about a registrant became a matter of public safety. Federal Megan’s Law changed this provision in an effort to strengthen sex offender registration programs.
Community notification made the release of relevant information about nearby registrants to the community compulsory. Megan’s Law permitted states wide latitude in deciding who should be notified about nearby registrants, under what circumstances, and about which registrants. The public was allowed to view a registrant’s information, primarily through an online database provided by the state police department of the registrant’s current state of residence. Other means of notification, like community meetings, newspaper announcements, and toll-free numbers, were also provided.
The same penalties outlined in the Wetterling Act apply to Megan’s Law.
Critics of Megan’s Law, regarding its effectiveness, cite its hurried passage in the absence of empirical evidence. Evidence-based research contends that Megan’s Law fails to substantially improve public safety. Megan’s Law does not reduce new or additional sex offenses. It is merely “feel-good” legislation lending a false sense of security, so the community feels in control and safer.
Megan’s Law may actually increase a registrant’s likelihood of re-offense by forcing registrants to become social pariahs. They lose vital community supports, such as the ability to locate and maintain stable housing and employment, which are key to a formerly incarcerated person’s return to their community.
Visit https://goo.gl/sPthjb for the text of federal Megan’s Law.
PAM LYCHNER SEXUAL OFFENDER TRACKING AND IDENTIFICATION ACT (1996)
Pam Lychner, a Houston realtor, was showing a property in 1990 when she was assaulted by a twice-convicted felon on parole. Angered by her attacker’s potential early release, Pam lobbied for victim’s rights and pushed for legislative changes on the state and federal level. Congress passed the Lychner Act, in Pam’s memory.
The Lychner Act intended to reinforce the provisions of the Wetterling Act, which requires registration for people convicted of sexual offenses.
While the Wetterling Act required state law enforcement to transmit registrant information to the FBI, the Lychner Act established a national database to track and monitor registrants. Registrants in states without a minimally sufficient registration program were to directly register an address, their fingerprints, and a current photograph with the FBI. A minimally sufficient program was one following all mandates of the Wetterling Act.
This legislation additionally amends the Wetterling Act by changing the length of registration. Following incarceration or supervised release, registrants are required to register for 10 years or for life, depending on the number and type of sex offense convictions.
The first time a registrant fails to register, as stipulated by the Lychner Act, they are to pay a fine of not more than $100,000. A second failure to register results in a fine of not more than $100,000 and up to a year of incarceration. The third, or any subsequent, failure to register results in a fine of not more than $100,000 and up to 10 years of incarceration.
Even though the Lychner Act authorized a National Sex Offender Registry (NSOR), the direct registration capacity was never developed for registrants residing in states without a minimally sufficient program. Congress finally established the National Sex Offender Public Registry (NSOPR) in 2005, but it was renamed the Dru Sjodin NSOPR one year later. Additionally, the information in the NSOR database is pulled from state databases so information is frequently missing, limited, or outdated.
Visit https://goo.gl/wZf4ni for the text of the Lychner Act.
SEC. 115 OF THE DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES (CJSA) APPROPRIATIONS ACT (1998))
The Wetterling Act was amended again by the CJSA Appropriations Act. This Act made extensive changes to the Wetterling Act, most of which granted states greater latitude in achieving SORN compliance. For instance, states had the discretion to delegate registration and notification responsibilities to a designated state agency, and to register individuals convicted of crimes not included in the Wetterling Act’s definition of registerable offenses. States were now required to participate in the NSOR. Other provisions required registrants who moved out of state to register under the new state’s laws, and now expanded required registration information to a registrant’s place of education and employment. The CJSA Appropriations Act also promoted the registration of people convicted for federal and military sexual offenses, and required the Bureau of Prisons to notify states when a federal prisoner was set for release or parole. Lastly, the court could now consider the recommendations of victim’s rights advocates and law enforcement agencies representatives, instead of solely hearing from treatment providers, when making a sexually violent predator determination.
Visit https://goo.gl/BLbQeZ for the text of the CJSA Appropriations Act.
CAMPUS SEX CRIMES PREVENTION (CSCP) ACT OF 2000
The CSCP Act, passed as part of the Victims of Trafficking and Violence Protection Act, amended the Wetterling Act one final time. In particular, the Act required registrants to provide information about any institution of higher learning they attended or were employed by to law enforcement authorities. This also included notifying authorities of any subsequent changes in employment or enrollment status. Finally, the CSCP Act amended the Higher Education Act of 1965 to require institutions of higher learning to publicize information about registrants to the campus community.
Visit https://goo.gl/vGwID0 for the text of the CSCP Act.
PROSECUTORIAL REMEDIES AND OTHER TOOLS TO END THE EXPLOITATION OF CHILDREN TODAY (PROTECT) ACT OF 2003
The PROTECT Act was enacted to prevent the abduction of children and eliminate sexual exploitation of children, and contained three major provisions. The first provision dealt with child kidnapping cases. Under this provision, a national AMBER Alert system was set-up to provide states with resources for issuing public alerts in the event of a child kidnapping, and waiting periods for police investigations were eliminated for missing persons between 18-21 years of age. Second, it mandated stricter penalties for people convicted of child sex offenses. For example, the Act included a life imprisonment clause for cases where a person is convicted for a subsequent offense, and it also forbade pretrial release for people charged with specific sex offenses against children. The Act also increased the statute of limitations for sex offenses, and allowed for a term of supervised release of any terms of years or for life. Prior to the Act, post-release supervision of people with sex offense convictions was capped at five years. Lastly, the PROTECT Act sought to control the possession and distribution of child pornography. It expressly prohibited any sexual depiction of minors that meets the Miller test of obscenity to include, but not limited to, drawings, sculptures, photographs, and videos. Under the Act, punishment for the possession and distribution of child pornography is mandated at five and ten years of incarceration, respectively.
Visit https://goo.gl/gg7ZLy for the text of the Protect Act.
ADAM WALSH CHILD PROTECTION AND SAFETY ACT (AWA, 2006)
In 1981, 6-year-old Adam Walsh was abducted from a Hollywood, Florida shopping mall. His parents quickly discovered there was no coordinated effort among law enforcement to search for Adam on a state or national level and no organization to help the family locate Adam.
In response, the Walshes founded The National Center for Missing and Exploited Children (NCMEC) to help locate missing children and prevent child victimization. John Walsh, in particular, spent the ensuing decades as a victim’s rights advocate and the host of “America’s Most Wanted.” In 2006, then President Bush signed the AWA into law in memory of Adam Walsh and 16 other victims of violent sex crimes.
The AWA seeks 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” (See H.R 4472-109th Congress, 2006).
The AWA specifically repealed the Wetterling Act, Megan’s Law, and the Pam Lychner Act, and is one of the most comprehensive acts ever enacted to regulate people convicted of sex offenses. It expands, sets, and clarifies national baseline measures for SORN programs, regardless of the state in which a registrant resides. The AWA’s 7 Titles outlines standards for SORN programs, civil commitment, immigration, child porn prevention, and online safety, among other provisions.
Title I of the AWA, referred to as the Sex Offender Registration and Notification Act (SORNA), requires states to revise their SORN programs to align with federal guidelines. SORNA proposes a three-tier registrant classification system, based solely on the conviction of offense and not actual risk, to standardize states’ SORN programs. Tier 3 registrants are considered the highest risk group. These registrants verify their registration information with law enforcement authorities every 3 months. Tier 2 registrants are considered the moderate risk group. These registrants verify their registration information every 6 months for 25 years. Tier 1 registrants are considered the lowest risk group. These registrants verify their registration information annually for 15 years.
Every registrant is required to submit the following information to law enforcement authorities: their name, (including any aliases used by the registrant; a current photograph; their Social Security number (not to be disclosed to the public); the address of each residence; the name and address of any employer; the name and address of any school attended by the registrant; the license plate number and a description of any vehicle owned or operated by the registrant; the sexual offense requiring registration; all criminal history, to include status of supervised release and dates of all arrests and convictions; a set of the registrant’s fingerprints and palm prints; a photocopy of a valid driver’s license or ID card issued by the jurisdiction in which the registrant resides; a DNA sample; and any other information required by the Attorney General.
SORNA removes the state’s discretion in determining which registrants to make publicly available. Under SORNA, all state SORN programs must make registration information publicly available for all three Tiers, not just Tier 2 and Tier 3. Additionally, SORNA also requires states to include juveniles who committed a sexually violent act and are at least 14-years of age in their SORN programs.
SORNA also established the Office of Sex Offender Sentencing, Monitoring, Apprehension, Registering, and Tracking (SMART). The SMART Office is responsible for implementing the AWA with duties to include administering SORNA and its associated grant programs, and providing SORN technical assistance to private and public entities.
Title II introduces stricter penalties for various sex offenses, and increased mandatory minimums for some offenses. For example, the federal mandatory minimum sentence for a violent crime against children involving murder or kidnapping is now 30 years (or death for certain sex offenses), and 25 years, respectively. The max penalty for sexual abuse is raised from 20 years to life in prison, and the minimum for coercing children into illegal sexual activity is set at 10 years.
It also created the crime of selling date rape drugs over the internet, and eliminated the statute of limitations for child sex offenses. Additionally, registrants on supervised release are now required to submit to searches of property at any time, with or without a warrant. Registrants on supervised release may also be subject to other conditions of release to include GPS monitoring.
Title III of the AWA outlines the proceedings for detaining “sexually dangerous” individuals through a civil commitment process. A “sexually dangerous” person is any high-risk individual with a psychiatric condition in which they’d have severe difficulty refraining from sexually violent behavior if they were released back into the community. The federal government must certify an individual as a “sexually dangerous” person before civilly committing anyone. After certification, the government may order a psychological or psychiatric exam to determine dangerousness, and then file the report with the court. Next, an evidentiary hearing is held to ensure the government has determined “sexual dangerousness” by clear and convincing evidence, which may include offenses that did not result in arrest, prosecution, or conviction. Individuals can even be civilly committed even if there is no prior criminal record of a sex offense. The individual is then civilly committed until the detention center decides they are no longer a sexual danger to the community. No guidelines are provided to outline how a detention center decides an individual is no longer a sexual danger.
The AWA amended the Immigration and Nationality Act with two provisions in Title IV. One, if an immigrant is a registrant and is convicted for failure to register as a sex offender, they can be deported. Two, if an immigrant is convicted of particular registerable offenses against children, they may be prevented from filing a family-based visa petition. The decision as to whether a registered immigrant can file a visa is left to the Secretary of Homeland Security’s sole and unreviewable discretion, and is dependent on the risk posed to the person for whom the petition is filed.
Title V of the AWA outlines provisions for child pornography prevention. One provision strengthens record keeping requirements for the pornography industry to ensure no minors are involved in the production of pornography. Specifically, it requires anyone who produces any pornographic content, including simulated sexually explicit conduct, to verify the names, including any aliases, and ages of any performer; and to create and maintain detailed records of each performer. Another provision requires any child pornography used in court cases to be held in the care, custody, and control of the government or the court; prohibits its reproduction and/or dissemination, and it must be made reasonably available for trial defense. One last section increases the offenses available for civil and criminal forfeiture in child exploitation and obscenity cases.
Title VI creates a number of grant programs, studies, and funding to increase community safety. For example, it authorized grants for a pilot program to monitor registrants with GPS devices, and called for the Bureau of Prisons to make treatment available for people convicted of sex offenses. Additionally, it creates a grant funding program to aid jurisdictions in verifying the addresses of registrants at appropriate interval. Title VI also provided the Rape, Abuse, and Incest National Network (RAINN) with grant funding for a National Sexual Assault Online Hotline. There are a number of additional opportunities provided in Title VI.
Title VII outlines internet safety protocols. Notably, it created the crime of child exploitation enterprise with a mandatory minimum sentence of 20 years. It increases the capacity of law enforcement to investigate and prosecute sexual exploitation of children. Other provisions, such as the penalty for deceiving a person into viewing obscene material online, and an increase in the number of Internet Crimes Against Children Task Forces, are also included.
Any registrant who either fails to register or maintain current information is subject to criminal penalties in the state in which they are registered. These penalties could include felony prosecution, extensive fines, and/or up to 10 years of incarceration. If a registrant is an immigrant and fails to register, they can be deported.
States failing to substantially implement the AWA are subject to a mandatory 10% reduction in their Byrne JAG funding. The funding from such a reduction is to be funneled to AWA compliant states. States can be granted a two-year extension, up to two times, if they are found to be making a good faith effort to implement the AWA’s mandates.
As of April 2017, the following jurisdictions are substantially compliant with the AWA:
Alabama, Colorado, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Wyoming
Northern Mariana Islands, Guam, U.S. Virgin Islands
Absentee-Shawnee Tribe of Oklahoma, Ak-Chin Indian Community, Alabama-Coushatta Tribe, Bay Mills Indian Community, Bois Forte Band of Chippewa, Cherokee Nation, Cheyenne River Sioux Tribe, Chickasaw Nation, Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation, Chitimacha Tribe of Louisiana, Citizen Potawatomi Nation, Colorado River Indian Tribe, Comanche Nation, Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of Warm Springs, Crow Tribe, Eastern Band of Cherokee Indians, Eastern Shoshone Tribe of the Wind River Reservation, Ely Shoshone Tribe, Fort Mc Dowell Yavapai Tribal Council, Fort Mojave Indian Tribe, Fort Peck Assiniboine and Sioux Tribes, Gila River Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Hannahville Indian Community, Havasupai Tribe, Hopi Tribe, Hualapai Tribe, Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, Kaibab Paiute Tribe, Kalispel Tribe of Indians, Kaw Nation, Keweenaw Bay Indian Community, Kickapoo Tribe of Oklahoma, Kiowa Tribe of Oklahoma, Kootenai Tribe of Idaho, Lac Vieux Desert Band, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Brule Sioux Tribe, Lower Elwha Klallam Tribe, Lummi Nation, Makah Tribe, Mashantucket Pequot Tribal Nation, Match-e-be-nash-she-wish Band of Pottawatomi Indians (Gun Lake Tribe), Menominee Indian Tribe, of Wisconsin, Mescalero Apache Tribe, Miami Tribe of Oklahoma, Mississippi Band of Choctaw Indians, Modoc Tribe of Oklahoma, Muscogee (Creek) Nation, Navajo Nation, Northern Arapaho Tribe of the Wind River Reservation, Nottawaseppi Huron Band of the Potawatomi, Ohkay Owingeh, Omaha Tribe of Nebraska, Oneida Indian Nation, Osage Nation, Otoe-Missouria Tribe of Oklahoma, Ottawa Tribe of Oklahoma, Pascua Yaqui Tribe, Pawnee Nation of Oklahoma, Peoria Tribe of Indians of Oklahoma, Poarch Band of Creek Indians, Pokagon Band of Potawatomi Indians, Port Gamble S’Klallam Tribe, Prairie Band Potawatomi Nation, Pueblo de San Ildefonso, Pueblo of Acoma, Pueblo of Isleta, Pueblo of Laguna, Pueblo of Santa Ana, Pueblo of Zuni, Quapaw Tribe of Oklahoma, Quinault Indian Nation, Reno Sparks Indian Colony, Sac & Fox Nation, Sac & Fox of the Mississippi in Iowa (Meskwaki), Saginaw Chippewa Indian Tribe of Michigan, Salt River Pima-Maricopa Indian Community, Santee Sioux Nation, Sault Ste. Marie Tribe of Chippewa Indians of Michigan, Seminole Nation of Oklahoma, Seminole Tribe of Florida, Seneca-Cayuga Tribe of Oklahoma, Shoalwater Bay Indian Tribe, Shoshone-Bannock Tribes, Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, Sisseton Wahpeton Oyate of the Lake Traverse Reservation, Skokomish Indian Tribe, Southern Ute Indian Tribe, Spokane Tribe, Squaxin Island Tribe, Stand Rock Sioux Tribe, Tohono O’odham Nation, Tonto Apache Tribe, Tulalip Tribes of Washington, United Keetoowah Band of Cherokee Indians in Oklahoma, Upper Skagit Indian Tribe, Washoe Tribe of Nevada and California, White Mountain Apache Tribe, Winnebago Tribe of Nebraska, Wyandotte Nation, Yavapai Prescott Indian Tribe, Yavapai-Apache Nation
While the AWA, and other SORN policies, has enjoyed immense political and popular support, there is little evidence of their effectiveness. Part of its ineffectiveness is attributed to the enormous pressure exerted on state resources to expand their definition of a registerable offense and, subsequently, track and monitor their registrants for even longer periods of time; all without receiving additional federal funding. It’s simply cost prohibitive and resource intensive, especially when state run SORN programs are cheaper to maintain than AWA complaint programs.
Furthermore, an overwhelming majority of evidence-based research observes that SORN programs don’t significantly reduce sex offenses following their implementation. It’s been plausibly argued that the innumerable collateral consequences of a sex offense conviction actually undermine public safety. These consequences include employment and housing instability, social ostracism, and vigilante justice; all consequences that impact the registrants, their families, and their communities. Critics also highlight the scientifically unsupported belief in high sexual recidivism rates, the question of indefinite punishment, and the impact on juvenile registrants in regard to AWA’s ineffectiveness.
Visit https://goo.gl/i3lmzw for the text of the AWA.
*Note: In 2011, SORNA Supplemental Guidelines mandated registrants to inform their local jurisdiction of international travel plans at least 21 days prior to departure, provided states discretion in juvenile registration, and required states to include forms signed by registrants acknowledging their receipt of registration obligations, among other provisions.
KEEPING THE INTERNET DEVOID OF SEXUAL PREDATORS (KIDS) ACT (2008)
The KIDS Act requires registrants to submit their email address, screen names, and other online aliases to their state’s SORN program, and also to update authorities whenever their identifiers change. Additionally, it mandates the Attorney General to establish a secure database of these aliases. Certified social networking sites can then voluntarily access, contrast their subscriber list, and then block matching aliases from their sites if they choose. The public is not granted access to this secure database.
Visit https://goo.gl/Mg1jWx for the text of the KIDS Act.
INTERNATIONAL MEGAN'S LAW (IML) TO PREVENT CHILD EXPLOITATION AND OTHER SEXUAL CRIMES THROUGH ADVANCED NOTIFICATION OF TRAVELING SEX OFFENDERS (2016)
IML was enacted in an effort to prevent child sex trafficking and tourism by making it more difficult to travel internationally. It establishes the Angel Watch Center (AWC), within ICE, to alert foreign law enforcement authorities about the intended travel of American registrants to their countries. The AWC is also authorized to determine whether or not the registrant in question is in compliance with their SORN responsibilities. Registrants are found to be in compliance if they provide their local jurisdiction with their anticipated itinerary, carrier and flight numbers for air travel, destination country, address of lodging accommodation, and the purpose of their international travel. If a registrant fails to provide the required information and attempts, or completes, their international travel will result in a fine and a maximum sentence of 10 years’ incarceration. Lastly, IML forbids the State Department to issue passports to covered registrants unless the passport contains a unique identifier. As of April 2017, and past the stated deadline in the legislation, neither the AWC nor the unique identifier has been established.
Visit https://goo.gl/tS89kL for the text of IML.