BISMARCK – North Dakota Attorney General Wayne Stenehjem agrees with most of a federal law mandating the collection of sex offender data in a national public registry and requiring such offenders to report their movements to law enforcement.
But he opposes a core component of the Adam Walsh Act, and his resistance places North Dakota on a list of states that didn’t meet the July deadline to comply with the act passed by Congress six years ago – a list Minnesota is also on.
For Stenehjem, the issue is the manner in which the law calls for offenders to be assessed as low, medium or high risk to reoffend.
“It’s a philosophical issue, and I firmly believe they’re wrong,” Stenehjem said last week.
The law requires states to place convicted sex offenders in one of three tiers based on the severity of their crimes. The act, named for a 6-year-old boy who was kidnapped and murdered in Florida in 1981, gave the states five years to comply.
The vast majority of states did not comply on time. As the deadline was approaching, only four had met the terms of the law. The Obama administration issued new guidelines in early 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant.
But most still are not, even though they will lose 10 percent of their justice assistance grants from the federal government in fiscal year 2012 as a penalty for inaction – which could top $75,000 in North Dakota and $450,000 in Minnesota.
It’s not that states are uninformed about the law. It’s that they have substantial objections to it. Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry. They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for additional time law enforcement officers would spend processing sex offenders who appear before them in person.
In North Dakota, however, it’s the opposite case: Stenehjem said the state has already adopted “just about everything” the act requires. And adopting the assessment piece would probably save the state money because it wouldn’t have to pay a Sex Offender Risk Assessment Committee to meet monthly to review offender cases.
“It would be really quick and cheap, but it would be less useful by far,” he said.
Stenehjem’s main beef with the Adam Walsh Act is what he calls a “one-size-fits-all” plan that requires states to assess offenders on the charge for which they are convicted. The problem is that an offender may plea bargain to a lesser charge and end up on a lower tier of the sex offender list that doesn’t reflect the severity of the crime, he said.
The assessment committee – a group created a decade ago that includes law enforcement officials, victim advocates and psychologists – reviews the offender’s entire case.
“It’s not based simply upon what they were convicted of doing, but looking at the actual facts of what it is they did,” he said.
The committee also looks at factors that affect the likelihood of reoffending, said Stenehjem, who noted he has state lawmakers’ support in sticking with the state’s system.
“It gives somebody who might be a moderate risk some incentive to do the things you want them to do, which is get a job, get through treatment, find a permanent place to reside,” he said. “People who do those things are less likely to reoffend, plus when they have a place where they work and where they live, we can go and check up on them because we know where they are.”
The Adam Walsh Act requires states to list all offenders and their pictures on the website, regardless of risk level.
North Dakota’s sex offender website allows the public to search for high-risk and lifetime offenders and information about the crimes they committed. A printable list of all sex offenders also can be downloaded from the website.
In Minnesota, the state’s online registry lists only the high-risk offenders.
While a spokeswoman for the Minnesota Bureau of Criminal Apprehension said last week she wasn’t sure if the state was complying with the law, Kara McCarthy, a spokeswoman for the U.S. Department of Justice, confirmed in a Friday email that it is not.
The result of listing all offenders publicly, Stenehjem said, is high-risk offenders get “camouflaged” among the low-risk, who are also then less likely to be able to find jobs and a place to live.
“And then you end up with more offenders, not less,” Stenehjem said.
Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say hurts rehabilitation efforts.
Susan Frederick, senior federal affairs counsel at the National Conference of State Legislatures, expects states to keep pressing Congress for more discretion about which offenders to place on the national registry and for how long.
“I think if enough of us states hold firm, maybe they’ll come and talk to us about how we do things, because we have a common goal. We do want to make the public safer,” Stenehjem said.
To ask for modifications in Adam’s law to render it less strict is a politically difficult request. Even in the face of compelling evidence that the federal law needs to be amended if all states are to comply, Congress may be reluctant to make changes.
“It’s a political argument, and nobody wants to be seen as soft on sex offenders,” says Frederick. “The parents of these children come to committee hearings and share their stories, and it’s very difficult to look those parents in the eye and say we need to have flexibility for registering offenders.”
In the absence of changes to Adam’s law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance.
Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review. In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.
These calculations may be the main reason why other large and budget-challenged states such as Texas and California have not taken steps to comply.
A Texas Senate study conducted in 2010 found that implementing the act in that state would cost about $39 million, in comparison to a loss in federal grants of $1.4 million per year. Texas legislators have also argued that the state’s current sex offender system, which was handling 66,587 registered sex offenders as of June 2011, is already backed up and that imposing another layer of requirements would only add to the strain.
Assuming funding levels remain constant in 2012, a 10 percent loss of justice assistance grant funds would equate to $78,700 for North Dakota and $467,000 for Minnesota, according to the National Conference of State Legislatures.
Nebraska, which changed its laws to attempt compliance with the Adam Walsh Act in 2009, is now having second thoughts.
Before compliance, Nebraska already maintained a three-tiered classification system for its more than 3,000 sex offenders, based on psychological evaluations and projected risks of re-offending. The names of those in the lowest tier of offenders were kept on an internal list, the second tier list was distributed to schools and other children’s centers, and the third, the list of most dangerous offenders, was made public.
But when the state complied with the Adam Walsh Act, the previous tier system was abolished and all sex offenders were placed on a public list, no matter the severity of their crime or their risk of re-offending.
“In retrospect, we question whether we are really protecting people with the high number of people out there who aren’t truly a risk,” Nebraska state Sen. Amanda McGill said at an October hearing.
Nebraska’s legislature will likely consider a bill in the 2012 session to authorize a study of the effects of the law in the state. ..Source.. by Stateline.org and Forum staff reports, INFORUM
