Fundamental problems with HR 291 as introduced.
UPDATED 3-5-2007
Main Concerns are focused on:
A) Theme and Intent of Bill: "Danger" and "Risk" are improper themes to attribute to ALL registered offenders in the nation.
1) Registrants have been through the criminal justice system, and that system has released them, then they are no longer legally considered a danger or a risk. The US Supreme court in Connecticut Dept. of Public Safety v. Doe (2003) held that because the State did not raise the issue of "dangerousness" no hearing was necessary before listing in a registry. However, this federal bill raises the "dangerous" issue and makes no provisions for a hearing before declaring registrants a danger;
2) Congress and the US Supreme court have identified juvenile offenders and certain types of cases for special handling as to "dangerousness issues. This bill ignores that group, their special issues, and certain types of cases as well;
3) In addition, currently in society where Levels (low, medium, and high) are used the theme is "likelihood of re-offense" this bill changes that theme to the detriment of registrants and their families by declaring them dangerous.
This bill cannot be used as an end-run around the judicial system.
B) A forced participation experiment: to be carried out using registrants from five jurisdictions and apparently without their consent;
C) The wording of the bill as introduced: Referring to sections covering "Creation of Guidelines" and "Working Groups" (See right hand panel), being "Shall and Must do," what the bill omits and should have included is very disturbing;
D) Committee Makeup, Prejudices and Leanings: It is victim-centered and not balanced so that when something comes to a vote it can be impartial. Victim centered thinking is not what is best for society where both the victims and offenders (and their families) must co-exist;
E) Committee Representation Missing: Absent from the committee is representation by someone who knows what is happening to registrants and their families today. Registries have been in existence for over ten years now and registrants have suffered because of registries, Congress and State Legislatures have simply ignored the suffering and have not even taken measures to document what has happened.
The Theme and Intent of the bill:
The theme and focus here is to attribute "Danger" and "Risk" to all registrants.
Attributing "dangerousness" to registrants without a hearing violates a "liberty interest," Connecticut Dept. of Public Safety v. Doe:
"We (High Court) granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a pre deprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F. 3d 38, 44, 46 (2001) (internal quotation marks omitted). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme."
Further, Congress in the Adam Walsh Act (42 USC 16911(5)(C) -and- 16911(8)), and the US Supreme court in Dept. of Public Safety v. Doe (See Oral Arguments at end of this report) and even in that court's decision had special concerns about a specific sub-group of offenders, juveniles and certain types of cases (ex: Romeo and Juliet cases):
Justices Souter and Ginsburg: "...
I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents' situation. Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. A court may exempt a convict from registration altogether if his offense was unconsented sexual contact, Conn. Gen. Stat. § 54-251(c) (2001), or sexual intercourse with a minor aged between 13 and 16 while the offender was more than two years older than the minor, provided the offender was under age 19 at the time of the offense, § 54251(b). A court also has discretion to limit dissemination of an offender's registration information to law enforcement purposes if necessary to protect the identity of a victim who is related to the offender or, in the case of a sexual assault, who is the offender's spouse or cohabitor. §§ 54-255(a), (b). * (*To mitigate the retroactive effects of the statute, offenders in these categories who were convicted between October 1, 1988, and June 30, 1999, were allowed to petition a court for restricted dissemination of registry information. §§ 54-255(c)(1)-(4). A similar petition was also available to any offender who became subject to registration by virtue of a conviction.)
The Experiment (verbatim from the bill):
Safe NOW Act of 2007 (then CLICK on Summary) - "Establishes the National Sex Offender Risk Classification Task Force to create guidelines for a risk-based sex offender classification system.
Authorizes the Task Force to carry out demonstration programs in five selected jurisdictions to: (1) use the Task Force's preliminary guidelines to implement such a system for their sex offender registries; and (2) identify ways to improve such guidelines.
Expresses the sense of Congress that each participating jurisdiction should use final Task Force guidelines to implement such a system for its registry."
First, the underlined, in essence says, the registrants of five unknown jurisdictions will be forced to participate in an experiment, which will be made public through their respective registries while the experiment is carried out.
Further, the final guidelines are discretionary, not mandatory, states can use them or ignore them. What happens to those forced to live under them in the experiment, certainly they will be more damaged in the public eye. Further, no one knows, at this point, what additional information may be required from registrants, and that may very well raise other privacy and legal concerns.
Classification systems:
I agree a classification system is desirable, IF, it is based on more than negative facts of a registrant's past history. Today, all risk-based classification systems I have reviewed are based upon the registrant's negative history, and a few factor in a registrant participation in sex offender therapy. A risk determination should be based on first, the past, but factor in, the present, positives since the crime, and guidelines must recognize that, every person's psychological and physical circumstances change as time passes.
Graduated Classification Systems (GCS): When a person commits a crime and is found guilty the judge makes the first decision, guided by statutes and guidelines, whether the person can be put on probation or whether he goes to prison. i.e., generally controlled by the severity of the crime.
If placed on probation that person remains under the jurisdiction of the court, but if sent to prison, they have a classification system to determine where that person can be placed, at which facility, with each facility representing differing levels of security and controls over the person. During imprisonment the inmate is moved from a higher level facility to lower level facilities, based upon behavior and time, until they are paroled.
While a person is on probation, or when placed on parole, supervising agents determine the best levels of supervision based on the facts of the case. Over time agents allow the person more and more freedom until finally the supervision is over and the person is again on his own.
Above are the classification concepts that are traditionally employed no matter where one is under state supervision in the nation, and given we do not have mass riots, we know these GCS systems work. Remember, that sex offenders are within the current working GCS systems today nationwide. Now, if I could write in a few short sentences the concept of a workable GCS system in use today, why could this bill not do that and make such the aim of the Committee and resulting Guidelines?
It is my contention that omitting Congressional guidance (Congressional guidance is provided in the Adam Walsh Act by vesting powers to the USAG) was intentional because such a classification system has a beginning, an end, and a graduated middle, and that does not fit the current thinking of victim-centered persons (the USAG chosen committee) who believe in the misguided theory that "there is no cure." Those folks refuse to recognize that, there is no cure for anything related to the human body or mind, and that society accepts management for everything else, but will not accept that for sex offenders.
Society wants all or nothing, but for, say, cancer or heart disease or many other maladies' of the body or mind, continues to search for an answer. Society has telethons and Congress appropriates funds to search for answers, and even appropriates monies for therapy programs for other types of offenders. i.e., drug offenders. Society has no tolerance for persons once they have committed a sex offense, even after prescribed punishment, society wants only isolation and uses legal pretexts which merely sound good to accomplish the isolation.
Therapy programs and community grants are non-existent in Congressional bills which is contrary to an important US Supreme court case: McKUNE, WARDEN, et al. v. LILE (States thus have a vital interest in rehabilitating convicted sex offenders. Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U. S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner's Guide to Treating the Incarcerated Male Sex Offender xiii (1988)). Congress does nothing but track movements and create new crimes requiring registration.
Committee Makeup, Prejudices and Leanings:
HR 291 calls for the USAG to appoint, committee members of his personal choosing, from 20 pre-defined groups, agencies and non-profits in society.
The committee is charged with developing dangerousness guidelines that will be applied to every person required to register. While it is true that the guidelines will not directly control everyday behavior of RSOs, the guidelines will affect how society perceives each registrant; as a more dangerous person. Society already treats anyone on a registry as a person that must be isolated in someone else's backyard. This is not good for society or registrants as it inhibits successful reentry into society.
Accordingly, the collective mindset of the committee must focus on integration and not segregation, or isolation. Some of the listed groups are well known for their open stance against registered sex offenders making all sorts of claims against offenders, unsupported factoids, false beliefs and myths. Several of the organizations listed have no particular expertise beyond personal opinions, and are not experienced in creating guidelines.
It is unlikely they will be objective due to their personal biases and prejudices. Accordingly, the committee needs to be balanced with a representative of the registrants and their families.
Committee Representation Missing:
Under Sec. 3(2)(E) the committee is charged with considering:
"any negative consequences that have resulted from Megan's Law (Public Law 104-145; 110 Stat. 1345), and steps that might be taken to reduce such negative consequences."
Sex offender registration systems have been in effect for over 10 years now and no entity has taken the time to implement a system to record the consequences of registration. Further, in reality there is no one appointed to the committee who could properly present to the committee what daily life is like for a registrant and their family, accordingly I am suggesting implementation of an Ombudsman on the committee, and appropriate questionnaires designed that they cannot be duplicated, and tallied by an independent firm to assure anonymity. Only a summarization of the results would be made available to the committee.
Content of Questionnaires: (Note: Questionnaires need to be designed to thwart duplication or other fraudulent means, and be tracked from distribution through collection.) First, general questions about the RSO's crime. Questionnaires with questions targeted to the learn more about the specific population (See Distribution below) the person falls into. The intent here is to tailor questions, so that, the responses will enable lawmakers to make allowances in laws to handle life's special conditions and disabilities identified by that specific population. An "Employer Questionnaire" is also to be developed and used as shown below. Effectively the questionnaires are to be designed to learn about the real life consequences of these laws. Questionnaires will contain questions pertaining to vigilantism (real and subtle) suffered by the RSO or his/her family or by employers. (Undeveloped thought, if employers could be damaged by the laws, could landlords or other people that RSOs do business with (therapists, etc.), and should they be included?)
Distribution of Questionnaires: All prenumbered questionnaire responses to be handled so as to protect the identity of the submitter FOREVER! This is necessary to prevent retaliation from persons who may be mentioned in the questionnaire, and the general public.
Further, no questionnaire is to be distributed to any RSO listed in a state registry who, has died, moved to another state, been deported, or is incarcerated (unless specifically mentioned below), each state is to provide a tally of each of these groups to the committee. Any questionnaire mailed and returned because the registrant moved will be included in the tally of "G)" below as an unaccounted for registrant.
Each of the following represents a specific population that has been adversely affected by registration laws, and some have special needs due to life's circumstances which the current laws do not recognize.
A) Spouses -or- one other family member (when there is no spouse) of Registered Sex Offenders (RSOs), who would receive a questionnaire in "B) "C)" "D)" "E)" or "F)" below;
B) General Population of RSOs, 10% (at least) of those registered in each state (If a RSO has an employer listed, then an "Employer Questionnaire" is sent to that employer), excluding anyone that would fall into the following groups:
C) RSOs with ADA qualified disabilities (the Americans w/Disabilities Act), 50% of this group that is registered in each state. States should know who these folks are as states are having to handle them specially already because of their disabilities;
D) RSOs who have infirmities, due to age or otherwise that would not be classified as a -qualified disability- under ADA, 50% of this group that is registered in each state. States likely know who these folks are, as states are handling them specially already, because of their infirmities;
E) RSOs who were a minor (when the crime was committed) or are a minor now (Definition of minor according to that state's law), 50% of this group that is registered in each state;
F) RSOs whose victim was at least 13 years old and the RSO was not more than 4 years older than the victim when the crime was committed, (Adam Walsh Act 42 USC 16911(5)(C)), 50% of this group that is registered in each state;
G) RSOs who are listed or considered "Homeless / Transient" or otherwise cannot find a residence, 50% of this group that is registered in each state.
H) RSOs who have been convicted of "Failure to Register" or any other technicality of registry laws (including any currently charged and are awaiting disposition), ALL of these that can be identified in each state including those that may be serving a sentence for that failure to comply;
Vigilantism Studies and News Articles: The committee shall consider news articles and any studies describing -all forms of hate and violence- against RSOs and their families. CLICK for some news articles already compiled.
Collectively, this information will represent the balance missing from the committee, and act as the collective voice of registered sex offenders, their families, and employers nationally as to the consequences occurring from registration. Sec. (3)(b)(3) "Working Groups" shall be amended to include "Collective Work" as one more "Working Group" in the bill.
Summarizing:
There is quite a bit left out of the bill as introduced and needs to be included before implementation of a risk based dangerousness classification system, as this bill intends for all registered. Until such time I cannot support this bill. Above are the major issues as I see them! I am eager to hear from folks on this proposed addition to the bill as introduced.
Finally, will this classification system REPLACE the Tiers established by the Adam Walsh Act, or be in addition to those tiers when it is phased into that Act?
eAdvocate
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Congressional guidance in HR 291:
Sec. 3(b)(2) CREATION OF GUIDELINES- In creating the guidelines required under this subsection, the Task Force shall consider--
(A) empirically-based assessment tools available to assess the dangers posed by sex offenders;
(B) the methods used to classify sex offenders for the purposes of sex offender registries in use by Federal, State, and local law enforcement agencies as of the date of enactment of this Act, and how those methods differ from a risk-based sex offender classification system;
(C) means by which information regarding the risk-based classification of sex offenders may be comprehensively and consistently disseminated to Federal, State, and local law enforcement agencies and the public;
(D) opportunities available to sex offenders (especially those who are not under court supervision) to change their risk-based classification, including voluntary participation in sex offender treatment and monitoring programs; and
(E) any negative consequences that have resulted from Megan's Law (Public Law 104-145; 110 Stat. 1345), and steps that might be taken to reduce such negative consequences.
Congressional mandate in HR 291:
Sec. 3(b)(3) WORKING GROUPS- The Chair shall designate 5 working groups within the Task Force, each of which shall conduct one of the following activities:
(A) Survey the methods of risk classification used by each jurisdiction, as of the date of enactment of this Act, and identify changes to such methods that jurisdictions could implement to improve the efficiency, accuracy, and consistency of sex offender registries.
(B) Research and analyze the effectiveness of the most recently developed tools available (as of the date of enactment of this Act) to assess the dangers posed by sex offenders and to classify sex offenders based on risk.
(C) Identify the strengths and weaknesses of Federal, State, and local sex offender registration and notification procedures in use as of the day before the date of enactment of this Act, and propose methods to improve any such weaknesses.
(D) Analyze Federal, State, and local law enforcement agency procedures for community notification regarding sex offenders (as of the date of enactment of this Act), and determine the most appropriate procedures to notify communities regarding sex offenders of varying risk-based classifications.
(E) Develop a resource guide that Federal, State, and local law enforcement agencies may use to educate the public about the prevention of sex offenses, the dangers posed by sex offenders, the systems used to classify sex offenders, and the access and use of sex offender registries.
Committee Members: One Representative from each of the following (Sec. 3(c)):
Unknown:
the Chair _________________________
Victim Advocates:
Law Enforcement:
Research and Statistics:
Legal Representation:
Psychological Community:
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In addition: three unnamed representatives of the academic community who specialize in risk assessment of sex offenders
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Registrants and Their Families:
(Missing from Bill)
Possible committee alternatives,
not specifically named
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