Sex Offender Registration and the Federal Adam Walsh Act: An Update of its Requirements and Status of Implementation in Texas Vincent Castilleja Sex Offender Registration Coordinator Texas Department of Public Safety Vincent.Castilleja@txdps.state.tx.us

State vs. Federal Registry Overview California was the first state to enact a sex offender registration program in 1947. As of December 2008, the registry contained 115,542 offenders. Other states did not enact their registries until the 1990’s.

Texas Sex Offender Registry The Texas Sex Offender Registration Program was enacted in 1991. It began in the CLE Division of DPS. Currently we have approximately 57,050 active adult offenders and over 3,000 offenders whose duty to register is based on the receipt of an adjudication of delinquent conduct. We add approximately 111 new registrants to the database each week.

Registrant Population by State* California - 115,542 Texas - 54,502 Florida - 50,393 Michigan - 43,613 New York - 27,639 *Courtesy NCEMC Dec 2008

Historically we have amended our registration law every legislative session based upon the influence of changes in federal registration law.

Federal Legislative History 1994 - Jacob Wetterling Act Established guidelines for states to track sex offenders. Required states to track sex offenders by confirming their place of residence annually for 10 years after their release into the community or quarterly for the rest of their life if the offender was convicted of a violent sex crime.

1995 - Megan’s Law Provided for the public dissemination of information from state registries. Required state and local law enforcement agencies to release relevant information necessary to protect the public about persons registered. Provided that registry information could be disclosed for any purpose permitted under a state law.

1996 - Pam Lychner Sex Offender Tracking and Identification Act Required the US Attorney General to establish a national registry (database) for the FBI.

1997 - Jacob Wetterling Improvements Act Required states to make determinations about whether a convicted sex offender should be considered a sexually violent offender. Required registrants who change their state of residence to register under the new state of residence. Required registrants to register in states where they work or attend school.

Directed states to submit data to the national sex offender registry (FBI). Extended registration to include federal and military convictions.

2000 - The Campus Sex Crimes Prevention Act Required registrants to notify institutions of higher education if they were employed, enrolled or carrying on a vocation at their institution. Required that this information be promptly reported to local law enforcement and entered into state registry records. Obligated institutions to disclose campus security policy, campus crime statistics and notice of how information concerning registrants at that institution could be obtained.

Amendments in Federal Registration Law Do State Registration Law’s Automatically Change?

No. State registration laws do not automatically change. States are encouraged to amend their registration laws to mirror federal laws. The federal government gives states time to implement changes and offer extensions if necessary. Failure to enact changes to become “substantially compliant” will result in the reduction of federal grant monies.

Adam Walsh Child Protection and Safety Act of 2006

S.O.R.N.A. What is S.O.R.N.A? S.O.R.N.A is the Sex Offender Registration and Notification Act which is Title I of the Adam Walsh Act. It provides a comprehensive set of minimum standards for sex offender registration and notification in the United States.

Goal of S.O.R.N.A. To close potential gaps and loopholes that existed under prior law and generally strengthens the nationwide network of sex offender registration and notification programs.

General Highlights of S.O.R.N.A. Includes tribal jurisdictions – gives tribes the option of being a separate jurisdiction or delegating registration functions to the state in which they are located in. Requires registration in all jurisdictions for which the offender resides, employed, or attend school.

Broadens the range of offenses covered from aggravated sex acts, such as rape, to include sex crimes with elements of sexual contact, even if they are not sex acts; and includes attempts or conspiracies to commit covered offenses. The act also adds crimes like possession of child pornography.

Extends registration requirements to juveniles at least 14 years of age at the time of offense and adjudicated delinquent for a crime comparable to or more severe than an aggravated sexual abuse crime as defined in federal law (18 USC § 2241) or was an attempt or conspiracy to commit such an offense.

Establishes three tiers of offenders, based on the severity of the crime. States must establish minimum requirements for offenders in each tier. Verification requirements are based upon tier level, accomplished in person and updated photos must be obtained.

Tier I Tier I are generally misdemeanor offenders serving less than a one-year sentence. Verify registration annually. Register for minimum of 15 years.

Tier II Tier II includes most felony sexual abuse and exploitation crimes, including ones involving minors. Verify registration every 6 months. Register for a minimum of 25 years.

Tier III Tier III is the most serious class of forcible felony sex crimes, as well as sexual contact crimes that involve victims under the age of 13. Verify registration every 3 months. Register for life.

Expands information required for registration: Photo and physical description Fingerprint and palm prints DNA sample Social security number Driver's license\ID Card number

Motor vehicle information Details on places where the offender works or attends school Criminal history and text of the offense leading to registration

Seeks greater uniformity in public sex offender websites, providing that all appropriate information about the sex offender be available to the public via the web. It also makes requirements regarding search capabilities and participation in the Dru Sjodin National Sex Offender Public Website.

Reduction in Length of Duty to Register Contains provisions allowing juveniles and Tier I offenders who have not committed new offenses to have their period of required registration reduced.

Retroactivity Offender is incarcerated or under supervision, either for the predicate sex offense or for some other crime; Offender is already registered or subject to a pre- existing sex offender registration requirement under the jurisdiction’s law; or Offender hereafter re-enters the jurisdiction’s justice system because of conviction for some other crime (whether or not a sex offense).

How They Help States to Comply Federal Assistance How They Help States to Comply

Creation of the S.M.A.R.T. Office The Walsh Act creates a new office within the Department of Justice’s Office of Justice Programs. It is an acronym for “Sentencing, Monitoring, Apprehension, Registration and Tracking” (S.M.A.R.T.) Office.

S.M.A.R.T. Office Mission? To ensure that convicted sex offenders are prohibited from preying on citizens through a system of appropriate restrictions, regulations, and internment.

Assistance their Office Provides Provide states with guidance regarding the implementation of the Adam Walsh Act Provide technical assistance to the states, territories, Indian tribes, local governments, and to the public and private organizations Track important legislative and legal developments related to sex offenders

Administer grant programs related to registration, notification, tracking and monitoring of sex offenders. Perform other functions as the US Attorney General may delegate. Is the primary contact point for all professionals in need of assistance.

Guidelines What are the guidelines? They provide all registration jurisdictions with guidance, explanation and advice regarding the administration and implementation of SORNA. The US Attorney General has issued these guidelines to promote and assist in the implementation of standards set by SORNA.

In short, the guidelines are expected to clarify for the state the requirements of the Adam Walsh Act which can be illustrated as the “floor” and not the “ceiling” for state sex offender notification and registration programs.

Walsh Act (S.O.R.N.A.) vs. Texas Registration (Juveniles)

S.O.R.N.A. Requirements for Juveniles Generally speaking, 18 USC §2241 prohibits: (a) knowingly caus[ing] another person to engage in a sexual act-- (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; [or (b) engaging in a sexual act with another by rendering unconscious or involuntarily drugging the victim; or (c) engaging in a sexual act with a person under the age of 12

Under the Final Guidelines, the definition of “sexual act” that jurisdictions are minimally required to use to determine whether a criminal offense is “comparable to” 18 U.S.C. §2241 is as follows: engaging in a sexual act with another by force or the threat of serious violence (see 18 U.S.C. 2241(a)); or engaging in a sexual act with another by rendering unconscious or involuntarily drugging the victim (see 18 U.S.C. 2241(b)). “Sexual act” for this purpose should be understood to include any degree of genital or anal penetration, and any oral-genital or oral-anal contact.

Which Youth Must Register? Offender was 14 years of age or older at the time of the offense Convicted as an adult or adjudicated delinquent

of an offense that involves sexual penetration or oral to genital contact with findings of force, threat, fear or by rendering the victim unconscious or involuntary drugging the victim Or an attempt or conspiracy to commit such an offense

S.O.R.N.A.: Consensual sexual conduct is not considered a sexual offense if the victim is at least 13 years old and the offender is no greater than 4 years older than the victim. Texas: “Romeo and Juliet” exemption is available. HB 3148 was recently vetoed due to allowance of those who received deferred adjudication for an offense to be eligible for exemption regardless of the age of the victim.

Publication of Registration Information S.O.R.N.A.: Publication mandatory on all registrants. Texas: Juveniles can petition for relief from public registration by order of juvenile court.

Website Publication Name and aliases Address of each residence in which the offender resides, will reside or habitually lives. (ex: foster homes, custodial and non-custodial parents addresses, treatment centers, vacation homes, etc.) Complete address of any place where the registrant is an employee.

Complete address of any place where the sex offender is a student or will be a student. The license plate number and a description of any vehicle owned or operated by the registrant. (personal, work, borrowed, parents). Physical description of the registrant.

The text of the sex offense for which the registrant is registered and; any other sex offense for which the offender has been convicted. (Guidelines refer to conviction data only) A current photograph of the sex offender.

Community Notification S.O.R.N.A.: In areas where the youth offender lives, works and goes to school. All registration information must be sent to the following: Law enforcement Schools Public Housing Agencies that conduct background checks

Community Notification Continued Child welfare agencies Volunteer organizations and any organization, company or individual that requests notification.

Verification Requirements S.O.R.N.A.: Every 3 months Texas: Annually

Length of Duty to Register S.O.R.N.A.: Lifetime (Tier III offense) Texas: Expires on the 10th anniversary from the date of discharge from supervision or termination of criminal proceedings.

Exemptions from Registration S.O.R.N.A.: No exemptions from registration are permitted, however, a reduction in length of duty to register is permitted provided registrant maintains a “clear record” for a period of 25 years.

Clean Record Not be convicted of any offense for which imprisonment for more than one year may imposed. Not be convicted of any sex offense regardless of the penalty. Successfully complete any periods of supervised release, probation, and parole; and Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the US Attorney General.

Exemptions from Registration Texas: Juveniles have provisions for exemption from registration, deferred registration, or de-registration.

Impact Summary for Texas Juveniles Applies only to those juveniles subject to registration under Adam Walsh

Not eligible to receive deferred or exemption orders. Not eligible to receive non-public registration orders. Classified as Tier III offender and public’s perception of threat level could be askewed. Increase verification requirements from annually to quarterly. Increases length of duty to register from post 10-years to either 25 years to life. Vehicle/School information will be available on registries web site.

Non-Compliance The S.M.A.R.T. office will determine whether a state falls within substantial implementation of S.O.R.N.A. The office of the Governor has worked with DPS in the compilation of previous compliance packets.

The deadline for substantial implementation is July 27, 2009. States have until April 27, 2009 to submit a compliance package to the S.M.A.R.T. office. Up to two 1-year extensions may be allowed. Any request for extension of time should include a description of the jurisdiction’s implementation efforts and an explanation as to why an extension is needed.

Impact of Non-Compliance Mandatory 10% reduction in federal funds (Byrne Justice Assistance Grant Funding) The Edward Byrne Memorial Justice Assistance Grant Program allows states and local governments to support a broad range of activities to prevent and control crime and to improve the criminal justice system.

Used to provide personnel, equipment, training, technical assistance and information systems for more widespread apprehension, prosecution, adjudication, detention and rehabilitation of offenders who violate state and local laws. May also be used to provide assistance (other than compensation) to victims of these offenders.

Update The US Attorney General authorized a one-year extension of the deadline for jurisdictions to implement S.O.R.N.A. on May 26, 2009.

Contributing Factors Leading to Extension S.M.A.R.T. did not receive staff until January 2008. Their office had to overcome not only the creation of a new federal office, but provide assistance, interpretation and review of all inquiries from states, tribes and territories.

Adam Walsh Act signed July 2006 Proposed Guidelines published May 2007 Final Guidelines published June 2008 Expectations for states to become compliant in July 2009

Indian Territories were not consulted before drafting of federal law. Impacted federally recognized tribes substantially since it requires them to create their own registration program or delegate that duty to the state.

Discussion regarding offense based tier system vs Discussion regarding offense based tier system vs. risk based assessment Lack of funding

FY 2009 Byrne Allocation Potential Loss State Loss No.Registrants California (3.4 Million) 115,542 Texas (2.3 Million) 54,502 Florida (2.0 Million) 50,393 Michigan (1.1 Million) 43,613 New York (1.7 Million) 27,639 Bureau of Justice Assistance

State registries rated by private organizations (report card). 2005 Texas received grade A+ 2006 Texas received grade C Offenders will likely state shop in search of states with lenient sex offender registration programs.

Other States Implementation of S.O.R.N.A.

Currently reviewing and establishing committees Considering the costs involved with implementation Considering the costs involved with legal arguments Passed compliance legislation – fully adopted Too busy with other registration issues (residency) Address all aspects of SORNA with exception of juveniles

Passed multiple amendments however excluded retro-applicability Deal with issues that the SMART office has deemed to be non-substantial (Penal Codes) Wait and see

To date, no state has been determined to be in substantial compliance with S.O.R.N.A.

“Should we spend more money and effort to get the law enforced or should we just back away from it because it’s just too hard?” Mark Lunsford: “If we back up because its too hard, the children will pay the price. If we move forward and continue to try fix the problem, you might have a few people on the registry who might not belong there. Do we register a man that might not be as guilty as we think he is or do we let another child die?”

Sex Offender Registration Coordinator Vincent Castilleja Sex Offender Registration Coordinator Texas Department of Public Safety PO Box 4143 Austin TX 78765-4143 Vincent.Castilleja@txdps.state.tx.us (512) 424-2800