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20 Fed. Sent. R. 357 (2007-2008)
Still Time to Rethink the Misguided Approach of the Sex Offender Registration and Notification Act

handle is hein.journals/fedsen20 and id is 369 raw text is: SUD Time to Rethink the Misguided Approach of the Sex Offender Registration and Notification Act Studies, including studies by the Department of Justice, show that the vast majority of sex offenders do not reof- fend, that sex offender treatment is effective, and that community support and stability are essential to rehabili- tation. Publication on an Internet sex offender registry very often results in job loss, homelessness, disruption of treatment, loss of social and family support, harassment, and even violence. When used indiscriminately for low- and high-risk offenders alike, public notification interferes with rehabilitation, thus diminishing public safety, and wastes resources better spent on the relatively small num- ber of offenders who are dangerous and likely to recidivate. About half the states use a risk-assessment model, which classifies sex offenders according to dangerousness and risk of recidivism and limits public notification accordingly. The Sex Offender Registration and Notifica- tion Act of 2006 (SORNA), however, requires the states to adopt a harsh one-size-fits-all policy by July 26, 2009, or lose Byrne Grant funds. The SORNA was enacted without hearings. The states were not consulted and current state practices were not considered. Input from organizations with expertise in the area was ignored. It is not too late to rethink this flawed policy. I. SORNA: A Misguided One-Size-Fits-All Policy The SORNA, enacted on July 27, 2006, as Title I of the Adam Walsh Act, requires the states, the District of Columbia, the territories, and Indian tribes to substan- tially implement its terms, as determined by the Attorney General, by July 27, 2009, or be penalized by the loss of iO percent of Byrne Grant funds they would oth- erwise receive.' Under SORNA, a sex offender is a person convicted under the law of any jurisdiction of any kind of sex offense, broadly defined.2 This includes a juve- nile adjudicated delinquent for an attempted sexual act if he was at least fourteen years old) It includes a teenaged boy convicted of consensual sexual contact with his girl- friend if she was a day over four years younger.4 For every sex offender as defined under SORNA, a broad range of information is required to be published on the Internet. Offenders are placed in one of three tier lev- els requiring registration and Internet notification for fifteen years, twenty-five years, or life. The tier levels are based not on dangerousness or risk of reoffense but on the offense alone. The fourteen-year-old boy adjudicated delinquent of an attempted sexual act remains on the reg- istry for life.) The eighteen-year-old boy convicted of consensual sexual contact with his girlfriend is on the reg- istry for twenty-five years.6 The vast majority of offenders are subject to registration and Internet publication for twenty-five years or life, even with a clean record and suc- cessful completion of treatment.7 There is no opportunity to petition for removal based on lack of dangerousness, a low risk of recidivism, or remoteness. In enacting the SORNA, Congress delegated, or per- haps abdicated, its legislative responsibility to decide whether the law would be retroactive to the Attorney Gen- eral. The Attorney General has declared that SORNA is fully retroactive to all sex offenders convicted at any time in the past even now when no jurisdiction has yet imple- mented the law.8 According to these regulations, persons who were never required to register, completed their period of registration, or were removed from the registry based on a low risk assessment are now required to regis- ter and to be broadcast on the Internet.9 The SMART Office of the Justice Department recognizes the impracti- cality of identifying, notifying, and registering all such persons, and so has determined that a jurisdiction will be in compliance if it endeavors to notify and register per- sons who, at the time of implementation, are currently in the system as registrants, prisoners, or supervisees for an offense of any kind or are convicted of a new offense of any kind.'0 This still requires registration and Internet publication of persons who have already fulfilled state reg- istry requirements, were removed from the registry based on a low risk assessment, or were never subject to registra- tion requirements in the first place. Moreover, the Department of Justice-the same body that deemed the law retroactive-regularly prosecutes people who have never been given notice of a duty to register or been registered by an appropriate state official as SORNA requires-which includes every person charged thus far as no jurisdiction has yet implemented the law-for the new crime of failure to register as required by SORNA. Many of these unfair prosecutions have been dismissed as in Federal Sentencing Reporter, Vol. 20, No. 5, PP. 357-362, ISSN 1053-9867 electronic ISSN 1533-8363 ©2oo8 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, http://www.ucpressjoumals.com/reprintInfo.asp. DOI: lo.1525/fsr.2oo8.20.5.357. FEDERAL SENTENCING REPORTER - VOL. 20, NO. 5 * JUNE 2008 a AMY BARON-EVANS Sentencing Resource Counsel, Federal Public and Community Defenders

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