The Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248), also called the Sex Offender Registration and Notification Act (SORNA), was signed into law by President Bush in July 2006. It can be found at 42 U.S.C. §§ 16901 to 16991.

A more detailed summary of the provisions of the Act can be found at the web site for the National Conference of State Legislatures. Click here to see the National Juvenile Justice Network's question and answer piece on new registration requirements for juveniles included in the Walsh Act.

In February 2007 the U.S. Attorney General issued an interim rule that specifies that the Adam Walsh Act, in requiring all sex offenders to register, applies retroactively to all sex offenders, regardless of how old their offenses are. In the four pages of comments which precede the interim regulation, the Attorney General explains that applying this retroactivity does not violate the Ex Post Facto Clause of the U.S. Constitution because the sex offender registration and notification requirements are intended to be non-punitive, regulatory measures adopted for public safety purposes, and hence may validly be applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. The full text of the interim rule and the Attorney General's discussion are available in the Federal Register, Vol. 72, No. 39, Wednesday, February 20, 2007, page 8894-8897.

The full text of the interim rule and the Attorney General's discussion are available in the Federal Register, Vol. 72, No. 39, Wednesday, February 20, 2007, page 8894-8897.

A posting of guidelines for implementation of the new Act will soon appear in the Federal Register. After that, the public will have 60 days to comment on the proposed guidelines. Here are links to three items prepared by the Department of Justice to explain the anticipated guidelines.

1. The National Guidelines for Sex Offender Registration and Notification - Proposed Guidelines, May 2007. PDF Version of Proposed Guidelines. 2. Fact Sheet: The Proposed Guidelines for the Sex Offender Registration and Notification Act (SORNA). 3. Frequently Asked Questions: The Sex Offender Registration and Notification Act (SORNA) Proposed Guidelines

The Previous Federal Law - The Jacob Wetterling Act of 1994

The Jacob Wetterling Act was signed into law in 1994 by President Clinton. It was the federal government's first foray into setting standards for sex offender registration, codified at 42 U.S.C. § 14071. For all practical purposes, it is superseded by the Adam Walsh Act.

The Wetterling Act required all states to have a sex offender registry or forfeit 10% of the funds received from the federal government's Byrne Justice Assistance Grants under the Omnibus Crime Control and Safe Streets Act of 1968. Unlike the 2006 Adam Walsh Act, the Wetterling Act left most of the details of implementation of each state's sex offender registry up to the state. There were no requirements in Wetterling that states implement a tiered classification system or post names and addresses of sex offenders online. The Wetterling Act did require participation in a national database, but did not provide for establishment of a national internet site accessible to the general public.

Joel Pentlarge is a CJPC Board member.

¹_{1 A chart of state-by-state allocations from the US Dept. of Justice BJA grants is found <"http://www.ojp.usdoj.gov/BJA/grant/07JAGstateallocations.pdf">here.}

Rebecca M. Young, Esq.

Secondary Addresses (G.L. c. 6, § 178C): All former offenders registering with the SORB are required to provide secondary addresses. A secondary address is defined as:

Rebecca M. Young, Esq.

As an attorney whose practice includes extensive representation of former sex offenders before the Sex Offender Registry Board (SORB) and on appeal, I naturally come to a critique of the SORB process with a particular perspective. I chose to work in this area of the law because of my personal opposition to the policy of sex offender registration and community notification. That opposition is based on my belief that these laws are actually counter to public safety and are inhumane and unjust. How could it be counter to public safety to inform the community of former sex offenders living in its midst? Sex offender notification often leads to a series of harmful outcomes for offenders, all of which point them in the direction of increased risk of reoffense. Specifically, notification leads to homelessness, unemployment, and being ostracized from the community--cutting off essential, appropriate and healthy ways for offenders to spend their time. What options are available to a homeless former sex offender who can't get a job and has no friends? Clinicians who work with perpetrators and victims of sexual abuse note that stress, instability, and lack of healthy ways to spend time increase the likelihood of reoffense.

In addition, notifying people about the registered sex offenders in their community can give parents and other first line defenders a false sense of security. When parents think that if they just stay away from Mr. Jones down the street, their children will be safe, they ignore the real danger posed by an uncle, a little league coach, or a babysitter. Further, there is no research to suggest that sex offender registration and community notification has prevented any sex offenses from occurring In this country, the punishments for crimes are typically incarceration, community supervision, and/or fines. While the courts have ruled that sex offender registration and community notification is not "punishment" for legal purposes, the reality for my clients and others is that they often experience what they perceive to be severe punishment. The branding of a "scarlet letter" on former offenders can make them feel as though they are imprisoned in the free world -- unable to take advantage of many of the legal and legitimate activities they looked forward to participating in upon their release from incarceration.

My belief is that the policy and system of sex offender registration and community notification ought to be replaced by a focus on education and prevention, as well as treatment for victims and offenders. The fact that sex offender registration and community notification applies to people whose offenses were committed prior to the passage of the registration law also seems particularly unfair.

The likelihood of such a reversal of direction in the near future is nearly non-existent, given the strength of public sentiment against former sex offenders and recent legislative activity that is going to other direction. The U.S. Congress tied a portion of state law enforcement funds to the establishment and maintenance of sex offender registration and community notification systems, and in the summer of 2006, Congress passed and President Bush signed the Adam Walsh Act, which requires that a specific sex offender registration and community notification system be implemented by states on a three- to five- year timeline. (See the article above on the Adams Walsh Act.)

What follows is a list of some problems I have encountered with the existing sex offender registry and community notification system in Massachusetts and preliminary recommendations.

Hearing Examiners Have Nearly Unlimited Discretion. Neither the Sex Offender Registry Law (SORL) nor the regulations define low, moderate, and high risk, which correspond to Level 1, 2, and 3 classifications, respectively. While the SORL and regulations identify many factors that hearing examiners must consider in determining classification levels of offenders, they provide no guidance as to how to weight the factors, leaving this completely to the discretion of the hearing examiner. Thus, a hearing examiner could decide that one particular factor is of great importance and assign a Level 3 classification on that basis. The regulations cite to the research literature about the treatment and recidivism of sex offenders; however, the literature is often cited very selectively,. For instance, while the regulations cite to a particular, well-known study several times in support of the inclusion of certain factors that are correlated with reoffense, they ignore the same study's finding that there is no relationship between denial of the offense and recidivism and include denial as a factor to be considered. There is also no mechanism in place for incorporating new research findings into the process. As an example, recent research in the field has found that current age is an important factor in determining recidivism rates, yet the statute and regulations do not address this at all.

Research in the field of sex offender recidivism indicates that the most effective way to predict recidivism of sex offenders is to use a combination of an actuarial tool with a clinical assessment. Just as insurance companies use actuarial tools to determine premiums for life insurance, so actuarial instruments can be used to predict recidivism of sex offenders. These tools include combinations of specific "static" factors (e.g., number of prior sex offense charges and convictions, current age, whether any victims were strangers) that, together, are predictive of likelihood of recidivism. Clinical assessments provide information about "dynamic" factors such as general self-regulation (e.g., behavior while incarcerated and in the community), sexual self-regulation (e.g., sexual misconduct or lack thereof since the sexual offense), attitudes condoning sexual assault, and intimacy deficits (e.g., problems establishing and maintaining healthy intimate relationships), which have been repeatedly found to be related to future re-offending. The current list of unweighted factors should be replaced by use of an actuarial tool combined with a clinical assessment.

Funds Not Made Available for Evaluations of Indigent Former Offenders. At SORB hearings, former offenders with financial means often hire experts in the field of sex offender treatment and recidivism to evaluate them and, if the expert's opinion is favorable, prepare a report and testify at their SORB hearings. This evidence often carries great weight with hearing examiners. Requests to the SORB by indigent offenders who cannot afford such evaluations are uniformly denied, and the SORB has no budget for funding expert evaluations for indigents. Poor offenders are clearly disadvantaged. Funds should be available to allow indigent offenders to seek sex offender evaluations, the results of which they may choose to offer at their hearings.

Right to Counsel for Indigent Former Offenders Before Preliminary Classification. Indigent former sex offenders do not have a right to appointed counsel until after they receive their recommended classification level. By that time, they may have provided the SORB, in response to an invitation to submit evidence on their own behalf, information that is actually quite damaging to them (e.g., denying they committed the offense). At hearing, the SORB routinely offers the evidence submitted by the former offender prior to the appointment of counsel. Thus, the lack of access to legal representation at the beginning of the process can prove quite harmful to clients. Indigent former offenders should have a right to appointed counsel prior to submitting any information to the SORB.

Right to Counsel for Indigent Former Offenders Seeking Reclassification. The SORB regulations provide that five years after release from prison or three years after receipt of the SORB's classification decision, former offenders may file a motion for reclassification, along with supporting documentation. These motions are reviewed by the full board and may result in a former offender receiving a lower risk level. Counsel may only be appointed for former offenders after a determination of indigency by the SORB. However, the SORB currently takes the position that there is no right to appointed counsel for these proceedings and thus does not make indigency determinations for these offenders. The SORL should be amended to clarify that indigent offenders seeking reclassification have a right to appointed counsel.

Former Juvenile Offenders Disadvantaged in Classification Hearings. While each former adult offender is entitled to a hearing before a hearing examiner who has no prior knowledge of his case, a former juvenile sex offender's hearing is conducted by the same Board member who assigned him his recommended classification level. Thus, he has no opportunity for a different person to take a "fresh look" at his case. A different hearing examiner than the Board member who assigned the recommended classification level should conduct hearings for former juvenile offenders.

Classification of Former Female Former Offenders. The research cited in the regulations concerning classification is based exclusively on samples of male sex offenders. Research on female sex offenders has found that they have a much lower average recidivism rate than males (1-2% for females as opposed to an average of 13.4% for males). There is no research that has validated the factors that are related to reoffense in females (due in part to the fact that the percentage of sex offenders who are female is quite small). Yet the statute and regulations apply the same factors to both males and females. Risk classifications should be based on clinical assessments and the sexual offense recidivism rate for female offenders.