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<html>
<title> - REAUTHORIZATION OF THE ADAM WALSH ACT</title>
<body><pre>
[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
REAUTHORIZATION OF THE ADAM WALSH ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
FEBRUARY 15, 2011
__________
Serial No. 112-12
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
64-584 PDF WASHINGTON : 2011
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida DEBBIE WASSERMAN SCHULTZ, Florida
BEN QUAYLE, Arizona SHEILA JACKSON LEE, Texas
MIKE QUIGLEY, Illinois
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
FEBRUARY 15, 2011
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 7
WITNESSES
Dawn Doran, Deputy Director, Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART) Office, U.S.
Department of Justice, Washington, DC, on behalf of Linda
Baldwin, Director, Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART) Office, U.S.
Department of Justice, Washington, DC
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Stacia A. Hylton, Director, U.S. Marshals Service, U.S.
Department of Justice, Washington, DC
Oral Testimony................................................. 26
Prepared Statement............................................. 29
Ernie Allen, President and CEO, The National Center for Missing
and Exploited Children, Alexandria, VA
Oral Testimony................................................. 36
Prepared Statement............................................. 38
The Honorable Patricia Colloton, Chair, Corrections and Juvenile
Justice Committee, Kansas House of Representatives, Leawood, KS
Oral Testimony................................................. 46
Prepared Statement............................................. 48
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 5
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 8
Response from Ronald Weich, Assistant Attorney General, Office of
Legislative Affairs, U.S. Department of Justice, to question
from the Honorable Debbie Wasserman Schultz, a Representative
in Congress from the State of Florida, and Member, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 79
Prepared Statement of Nicole Pittman, Esq., Juvenile Justice
Policy Analyst Attorney, Defender Association of Philadelphia,
submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 81
REAUTHORIZATION OF THE
ADAM WALSH ACT
----------
TUESDAY, FEBRUARY 15, 2011
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m., in
room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Conyers, Goodlatte,
Lungren, Gohmert, Poe, Griffin, Marino, Gowdy, Adams, Quayle,
Scott, Jackson Lee, Johnson, Quigley, Chu, and Wasserman
Schultz.
Staff Present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Sam Ramer, Counsel, Lindsay Hamilton, Clerk;
(Minority) Bobby Vassar, Subcommittee Chief Counsel; Lilliana
Coronado, Counsel; and Veronica Elligan, Professional Staff
Member.
Mr. Sensenbrenner. The Subcommittee will come to order.
Welcome to today's hearing on the Adam Walsh
Reauthorization Act. I would like to especially welcome our
witnesses and thank you for joining us today.
I am joined today by my colleague from Virginia, the
distinguished Ranking Member of the Subcommittee, Bobby Scott,
also the Chairman emeritus, John Conyers of Michigan. And I
recognize myself for 5 minutes.
Today's hearing examines the role of the Adam Walsh Child
Protection and Safety Act as a law enforcement tool to
apprehend sex offenders throughout the United States. This Act
was named for Adam Walsh, a Florida boy who was abducted from a
shopping mall and later found murdered. His father channeled
his grief into assisting law enforcement with the pursuit and
capture of the most dangerous criminals this country faces.
As Chairman of the House Judiciary Committee in the 109th
Congress, I made the adoption of this Act a priority. President
Bush signed it into law on July 27, 2006. As Chairman of the
Crime Subcommittee in this Congress, I am committed to
reauthorizing this important legislation and seeing that it is
fully implemented.
A primary component of the Act is the Sex Offender
Registration and Notification Act, or SORNA. SORNA establishes
a comprehensive national system for the registration and
notification to the public of sex offenders. Under SORNA, sex
offenders are organized into three tiers, with the most serious
offenders required to register their whereabouts every 3 months
with lifetime registration.
SORNA also establishes a national database to incorporate
the use of DNA evidence collection and DNA registry and
tracking of convicted sex offenders with GPS technology. The
law also increased criminal penalties for child exploitation
offenses and authorized additional grant money to assist State
and local law enforcement, with SORNA compliance, to combat
child sex abuse and to assist with fugitive apprehension.
The Act also created the Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking, or SMART.
The responsibilities of the SMART Office include providing
jurisdictions with guidance regarding the implementation of the
Adam Walsh Act and providing technical assistance to the
States, territories, Indian tribes, local governments, and to
public and private organizations. The SMART Office also tracks
important legislative and legal developments relating to sex
offenders and administers grant programs relating to the
registration, notification, and management of sex offenders.
Thanks to the Adam Walsh Act, we have begun to make
progress against thousands of sex offenders whose whereabouts
are unknown. The U.S. Marshals, who bear the primary
responsibility for finding these offenders, have been able to
clear over 6,000 cases, with hundreds of offenders eventually
convicted of failing to register.
I would like to remind the Committee Members that this Act
has been challenged in court several times and has been found
to be constitutional in every respect. Claims that the law
violates due process and claims against retroactivity of the
law have been examined in many courts and rejected. This is a
fair program, and the goals it seeks comport with the
fundamental notions of liberty and federalism. Yet much more
remains to be done.
I am not pleased with the rate of compliance with the SORNA
provisions. The original compliance date was July 2009, with
the ability of jurisdictions to receive two 1-year extensions
to July of this year. In that time, only five States, two
Indian tribes, and the territory of Guam have been certified to
be in compliance with the law. The remaining States and other
tribes and territories have had ample time to come into
compliance with the Act. In fact, the deadline for compliance
for these States has already been extended significantly. I
have heard that many States may be close to compliance with the
law, and I hope that that is the case as the deadline for
compliance fast approaches.
As law enforcement officers seek to investigate serial sex
offenders, they are often frustrated to find different States
have different ways of categorizing them. The whole purpose of
the Act was to make it easier to track these offenders, yet
many of the same problems remain because so many States have
failed to fully comply with the law. I am eager to hear from
the Justice Department why so many jurisdictions have not
complied.
The Adam Walsh Act is vital to apprehending sex offenders
and to protecting our children, and I intend to see that it is
fully implemented.
I wish to welcome our witnesses today and thank you for
joining us today.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Subcommittee, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you for this Subcommittee hearing on the Reauthorization of the
Adam Walsh Act.
It has been over 4\1/2\ years since the passage of the Act.
And when it originally passed, I opposed it because it
increased mandatory minimum sentences, it added creation of new
Federal criminal offenses on top of a myriad of existing and
growing State offenses, it criminalized probably innocuous
behavior by teenagers, and it created a National Sex Registry,
which has not shown value in its stated goal of reducing sexual
assault.
Since its passage, jurisdictions subject to the
requirements under the Act have told us that there are a number
of problems and challenges with implementing the Act. In
particular, the Sex Offender Registration and Notification part
of the Act, referred to as SORNA, has proven to be unworkable
for the vast majority of these jurisdictions. SORNA requires
that individuals convicted of sex offenses register for a
period of 15 years to life for conduct ranging from a
misdemeanor solicitation offense to felony sexual assault. Even
among the few States that have been certified as having met the
requirements of these provisions, we are seeing reports of
problems and difficult challenges, particularly given the
budgetary constraints facing all of the country at this time.
In short, SORNA is facing a crisis. As of a few days ago,
since nearly 5 years after the passage of the Act, I had only
four States had been qualified, two tribes and one territory
have been found to be in compliance with SORNA. The remaining
241 jurisdictions face an unjustified and harsh tax on their
Byrne Grant funding, because if they don't comply they will
lose some of that funding. As we know, the Byrne Grant monies
are used to fund essential State and local programs, such as
law enforcement and other community programs. It would be a
double disaster for States to lose these monies for not being
able to afford to implement the requirements due to their
current severe budget shortfalls.
Instead, we should consider the feedback that we will hear
today and that we have been provided over the past years, and
that is to earnestly seek the legitimate concerns that have
been raised. Some of the feedback came to us by way of previous
hearings on SORNA.
In March 2009, when I was Chairman of the Committee, we
convened a hearing on barriers on implementing SORNA. Nearly 2
years later, many of these barriers that we heard at that
hearing still exist. These include the high costs associated
with implementation, the challenges that require juveniles to
register posts for the States, including pending legal
challenges; and both the legal and practical challenges with
SORNA's retroactivity requirement, the whole-scale
reclassification of sex offenders; and for Indian tribes,
specific challenges, including the loss of sovereignty if the
tribes do not comply. At that hearing, we heard testimony from
various State and local law enforcement officials addressing
each of these challenges. Unfortunately, many of these
obstacles still exist.
One such obstacle continues to be the requirement that
juveniles as young as 14 years of age be placed upon the
registry. Despite that, this registration requirement is
limited to the most serious cases, and just this year the
Attorney General gave jurisdictions discretion to make
juveniles nonpublic. Numerous States are still having
difficulty with this component due to legal challenges,
considerable pressure from advocates and child development
experts, and State legislators' discomfort with placing
juveniles on a registry.
Another continuing impediment to this implementation is
SORNA's failure to allow for an actual risk assessment
component to State registries. SORNA does not allow States to
use risk assessment tools in developing its registry, which has
posed a problem particularly in those States that had
longstanding, effective State registries that used risk
assessment tools long before SORNA. These States must
completely alter their systems, which is costly, and some will
face a legal challenge in so doing. Research indicates that the
risk assessment is an effective way to monitor offenders. We
should all prefer a tool that helps determine who is actually
at risk of committing another offense, rather than just telling
us who committed one in the past. Failing to distinguish
between the two defeats the purpose of the registry and makes
us actually less safe, not more safe.
Tribes continue to face unique and compelling difficulties
in implementing SORNA. Out of 192 tribes who have opted into
SORNA, only two have been found to be in compliance. As many of
us know, tribes suffer from high poverty rates and struggle
with budgetary issues. In addition to losing much needed Byrne
Grant funds, tribes face even more serious penalties should
they fail to implement SORNA. This public function will
involuntarily be delegated to the State in which a tribe is
located. States will then have to take on the additional
responsibility, when they are already struggling to implement
their own registries, without putting them in the difficult
position of encroaching upon tribal sovereignty. In light of
the double penalty that tribes face, the burden that SORNA
imposes on them is onerous.
The cost of the barrier of implementing SORNA is a major
barrier. For example, California has estimated that the
potential cost to implement SORNA will be approximately $37
million. Texas says $14 million will be needed to implement
SORNA. These numbers do not only pose a tremendous burden on
the States, but also ask us to inquire whether it is worth the
money. Are the States going to get a good return on their
investment? And while we will do whatever it takes to protect
our children, we must ask ourselves, are sex offender
registries effective? Available research tells us that sex
offender registers do not actually reduce the number of sexual
assaults. This includes a DOJ study----
Mr. Sensenbrenner. The gentleman is about 1 minute over his
time. Can he wrap up, please?
Mr. Scott. This includes a DOJ study funded under Megan's
Law, the predecessor of SORNA.
I will insert the rest of my statement in the record.
[The prepared statement of Mr. Scott follows:]
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I am pleased to join you for this Crime
Subcommittee hearing on ``Reauthorization of the Adam Walsh Act.'' It
has been over four and a half years since the passage of the Adam Walsh
Act. I opposed the Adam Walsh Act for myriad reasons, including the
increases in mandatory minimum sentences, creation of new federal
criminal offenses, on top of the myriad of existing and growing state
offenses, criminalization of innocuous behavior by teenagers, and the
creation of an onerous national sex offender registry of questionable
merit or value to its stated goal of reducing sexual assault.
Since its passage, jurisdictions subject to requirements under the
Act have told us about a number of problems and challenges with
implementing the Act. In particular, the Sex Offender Notification and
Registration part of the Act, referred to as SORNA, is proving to be
unworkable for the vast majority of these jurisdictions (states,
territories, and tribes). And even among the few who have been
certified as having met the requirements of those provisions, we are
seeing reports of problems and difficult challenges, particularly given
the budgetary constraints facing all of the country at this time.
Given these problems, I hope that we use today's hearing to learn
how we can best assist them in addressing the challenges they are
experiencing.
In short, the SORNA implementation process is facing a crisis. As
of this hearing, and nearly five years since passage of the Adam Walsh
Act, only seven jurisdictions--four states, two tribes, and one
territory--have been found in compliance with SORNA. The remaining 241
jurisdictions face an unjustified and harsh tax on their Byrne grant
funding this year, and every year that they do not comply. As we all
know, Byrne monies are used to fund essential state and local programs,
such as law enforcement and other community programs. It would be a
double disaster for states to lose these monies for not being able to
afford to implement the requirements due to their current severe budget
shortfalls.
Despite my opposition to the Adam Walsh Act, I believe that if we
are going to insist on imposing requirements upon states, territories,
and tribes, it is incumbent upon us to do more than just require them
to comply. I believe that it is Congress' obligation, having passed
such an onerous and unfunded mandate, to help find solutions to the
problems facing states trying to implement SORNA before we compound the
problem by penalizing them monetarily. Thus, we should consider the
feedback that we will hear today, and that we have been provided in the
years since the law's passage, and earnestly seek to meet the
legitimate concerns.
Some of this feedback came to us by way of a previous hearing on
SORNA. In March 2009, under my leadership of this subcommittee, I
convened a hearing on barriers to implementing SORNA. Nearly two years
later many of these barriers that we heard at that hearing still exist.
These include the high cost associated with implementation, the
challenges that requiring juveniles to register pose for states,
including pending legal challenges, both legal and practical challenges
with SORNAs retroactivity requirement, the whole scale re-classifying
of sex offenders, and tribe specific challenges, including the loss of
sovereignty if tribes do not comply. At that hearing we heard testimony
from various state and law enforcement officials addressing each of
these challenges. Unfortunately, many of these obstacles still exist.
One of the greatest difficulties with implementation of SORNA
continues to be the requirement that juveniles as young as 14 years old
be placed on the registry. Despite that this registration requirement
is limited to the most serious cases, and that just this year the
Attorney General gave jurisdictions discretion to make juveniles non-
public, numerous states are still having difficulties with this
component, due to legal challenges, considerable pressure from
advocates and child development experts, and state legislators'
discomfort with placing juveniles on a registry. I would like to hear
about the continuing challenges with the juvenile piece, despite the
new guidelines. It may be time to re-visit the inclusion of juveniles
in SORNA.
Another continuing impediment to implementation is SORNA's failure
to allow for an actual risk assessment component to state registries.
SORNA does not allow states to use risk assessment tools in developing
its registry, which has posed a problem, particularly for those states
that had long-standing, and effective, state registries that used risk
assessment tools long before SORNA. These states must completely alter
their systems, which is costly, and some have faced legal challenges in
doing so. To be sure, research indicates that risk assessment is an
effective way to monitor offenders. We should all prefer a tool that
helps us determine who is actually at risk of committing another sex
offense, rather than just telling us who committed one in the past.
Failing to distinguish between the two defeats the purpose of a
registry and actually makes us less safe, not more.
Finally, tribes continue to face unique and compelling difficulties
implementing SORNA. Out of 192 tribes who have opted into SORNA, only
two have been found in compliance to date. As many of us know, tribes
suffer from high poverty rates and struggle greatly with budget issues.
In addition to losing much needed Byrne grant funds tribes face an even
more serious penalty. Should they fail to implement SORNA, this public
function will involuntarily be delegated to the state in which a tribe
is located. States will then have to take on this additional
responsibility, when they are already struggling to implement their own
registries without also putting them in the difficult position of
encroaching upon tribal sovereignty. In light of the double penalty
that tribes face, the burden that SORNA imposes on them is enormous. I
would like to hear about the likelihood that 190 tribes will be able to
come into compliance in five months. And what we are going to do to
help them avoid the penalties they will be subject to if they do not.
In light of the looming compliance deadline and that over 240
jurisdictions remain outstanding, it is also time for Congress to
consider a statutory extension of the deadline. Before dismissing this
as untenable or as a way to allow recalcitrant states to stall
implementing SORNA, I urge my colleagues on both sides of the aisle to
consider the fact that, although the Act contemplated that
jurisdictions would have five years to implement SORNA, the Department
of Justice did not issue guidelines until 2008, leaving them only three
years to implement SORNA. Furthermore, last month the Department of
Justice issued supplemental guidelines, just months before the final
deadline. I also urge my colleagues to heed the testimony of the only
witness representing a state here, Representative Collohon from Kansas,
who will share her states' experiences and challenges, trying to
implement SORNA.
In conclusion, it is my sincere hope that although this hearing is
about reauthorizing the Adam Walsh Act generally, that we focus on the
piece that is truly in danger of failing, SORNA, and come up with
creative solutions. These may include amending SORNA to help facilitate
compliance, with a specific eye towards fixing the juvenile, risk-
assessment, deadline, and tribal issues. It is it not only our
obligation, having imposed this mandate on jurisdictions, but it is
also the right thing to do. Now, it is my understanding that the
Majority's preoccupation with cutting the federal budget will mean
across the board slashes to numerous programs. But it would be
fundamentally unfair to demand that states meet a costly mandate, while
at the same time reducing funding opportunities to help them do so.
Thank you for attending today's hearing. I look forward to hearing
from all the witnesses.
__________
Mr. Sensenbrenner. Without objection, all Members' opening
statements will be made a part of the record. And also, without
objection, the Chair will be authorized to declare recesses
during votes on the House floor.
It is now my pleasure to introduce today's witnesses. Dawn
Doran is the Deputy Secretary of the Office of Sex Offender
Sentencing, Monitoring, Apprehending, Registering, and Tracking
Office, or SMART, for the U.S. Department of Justice, Office of
Justice Programs. She works to administer the standards of the
Sex Offender Registration and Notification Act, including
administration of grant programs and providing technical
support for SORNA.
Prior to joining the SMART Office, she served as the Deputy
Director of the National Assistant District Attorneys
Association Child Abuse Program. She was also Assistant
District Attorney General in Memphis, serving as co-chair of
the Sexual Offenders Registry Violation Unit, and a member of
the Child Physical and Sexual Abuse Warrant Review Act. She
received her bachelor of science degree in public and business
administration from the University of Tennessee at Martin, and
her law degree from the University of Tennessee.
Ernie Allen is the cosponsor of the National Center for
Missing and Exploited Children and has served as its President
and CEO for 22 years. Mr. Allen is also the founder of the
International Center for Missing and Exploited Children and
serves as its CEO. Under his tenure at NCMEC, more than 150,000
missing children have been recovered. He has received both his
bachelor degree and his JD from Louisville University.
Stacia Hylton is Director of the United States Marshals
Service, having been appointed by President Obama as the 10th
director of the service, and sworn in on December 31, 2010. She
has over 30 years of law enforcement and management experience
within the Justice Department.
Prior to her appointment as Director of the Marshals
Service, she served as the Attorney General's Federal Detention
Trustee from 2004 to 2010, and was the incident commander
organizing the Marshals Service response for Ground Zero. She
began her career in 1980 as a Deputy U.S. Marshal and has
received her bachelor of science in criminal justice from
Northeastern University.
Finally, Pat Colloton has served in the Kansas House of
Representatives since 2004. She authored legislation on the
expansion of DNA testing to facilitate the early detection and
arrest of sexual predators, new approaches to community
corrections, and revising laws regarding domestic violence and
victim notification. She currently serves as Vice Chair of the
Board of Directors of the Justice Center, a national
organization under the Council of State Governments, which
focuses on developing evidence-based practices and laws in the
criminal justice system.
Prior to her career in politics, Ms. Colloton was a small
business owner, an attorney, who also served as a member of the
Johnson County Public Policy Council. She received a bachelor
of science in chemistry and psychology and a juris doctorate
from the University of Wisconsin, and was in my law school
class, so I know she got a very good education there.
But before recognizing Ms. Doran, I am informed that the
most recent Chairman emeritus of the Committee wishes to make
an opening statement, and the Chair recognizes the gentleman
from Michigan, Mr. Conyers, for 5 minutes.
Mr. Conyers. Thank you very much, earlier Chairman emeritus
of the Committee. I am glad that you were generous enough to
allow me just to make a small comment about the hearing today
because--I am not sure about this--but I think with Bobby Scott
I opposed this too a few years back, only I didn't have the
courage to say anything and speak up about it. He went on the
floor and gave a--it was a heroic act by ex-chairman Scott, and
I am proud of you for it.
There are concerns. There are, I think, 40-some-odd States
who are in jeopardy of losing part of their Byrne JAG grants in
July, and that is going to be a fair amount of money for
everybody.
The second thing I don't like about this law that we are
examining is that there is a strict compliance standard that
disturbs me a great deal, and I hope that the witnesses will
comment on that. I think we need flexibility in compliance.
And could some one of our distinguished witnesses, can some
talk about the tribal sovereignty issue in this SORNA law that
seems to be pretty--it is not being worked in any way that I
think is fair to those on reservations.
And finally, we have this problem with juveniles. Should
juveniles be treated as adults? Not a new problem. And it is so
important that it is going to the Supreme Court. We are in the
process of examining--the registration provision of SORNA may
not be retroactively applied to delinquent individuals. The
court has said--repeatedly almost--in focusing on juvenile
adjudications, that we do not punish our Nation's youth as
harshly as we do our fellow adults. And so with those
qualifications in what we are doing, I find myself in the
position of, first, hoping someday that we will have a clear
examination of this law and make the changes that importantly
need to be made, but in the meantime, I don't want to punish
the States who are not in compliance.
This is an unfunded mandate. Nobody has used that term this
morning, and so I will. The States are mostly in a bind; there
are very few that are not having incredible funding cuts. And
the President's budget release doesn't help things a bit in
terms of this and many other areas. And so I look forward to
the witnesses, and I yield back the balance of my time and
thank the Chairman.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
With the enactment in 2006 of the Adam Walsh Act, a number of
significant amendments to our federal criminal code were made and a
national sex offender registry system was established, among other
things.
As some of you may recall, I had serious concerns about the this
legislation. In particular, I opposed several provisions, not the least
of which were those that imposed severe mandatory minimum sentences and
created additional death penalties.
No one doubts the importance of protecting our children from sex
offenders and making our communities safer. So, despite the many
problems that with the Adam Walsh Act, I believe the intent behind the
bill was laudable, namely, to protect our children.
Unfortunately, however, the Act has not accomplished its intended
goals. In fact, it may even have made children less safe, by diluting
state sex offender registries and making them less effective in helping
us determine who is and is not dangerous.
Title I of the Adam Walsh Act, the Sex Offender Registration and
Notification Act, referred to as SORNA, requires states, territories,
and federally-recognized tribes to create a sex offender registry,
according to certain onerous federal specifications.
If these entities fail to do so by July of this year, however, they
will be penalized by losing 10% of their Byrne Grants per year.
At the time that the Adam Walsh Act passed, we warned that this may
be an unobtainable goal. It unfortunately now appears that our concerns
were justified.
Since 2006, only 7 jurisdictions have been able to meet this
requirement.
Worse yet, more than 240 jurisdictions are now in danger of losing
significant amounts of federal money that they could use to fund
critical law enforcement and other essential community programs.
In short, SORNA is failing and Congress is now faced with the
challenge of cleaning up this mess.
Today's hearing will help us figure out how to address this problem
and to help those struggling with implementing SORNA before they are
penalized.
Accordingly, I would like my colleagues and the witnesses to focus
on three aspects about the kind of clean-up process we should
undertake.
First, our discussion about SORNA must begin with a recognition
that it imposed an unfunded mandate on states, territories, and tribes
and the cost of this mandate is one of the biggest obstacles to
implementing SORNA.
The Justice Department grants that are made available to help
offset the implementation costs are simply inadequate. In fact, the
State of Texas--which my colleague, the Judiciary Committee Chairman,
represents--has published reports about the obstacles to implementing
SORNA. They conclude that it would cost Texas $14 million a year to
implement SORNA.
Furthermore, the Senate Criminal Justice Committee recommended that
Texas not implement SORNA.
You can imagine how serious the problems are with SORNA if Texas,
one of the toughest states on offenders, is unable to comply.
I hope we will take particular heed of Kansas State Representative
Patricia Collohon's testimony describing the overwhelming cost of
implementing SORNA that states are facing and how we can develop
strategies to assist them in this monumental endeavor.
Second, we must consider the effectiveness of these federal
requirements, especially given the fact that they will obligate the
states to spend millions of dollars to implement them.
We must ask ourselves some hard questions, such as--
<bullet> How effective are sex offender registries?
<bullet> Are states getting the most bang for their buck,
particularly in this time where most states are suffering
significant budget short falls?
<bullet> Do these registries really make us safer?
<bullet> And, are there better ways to protect our children?
Research does not indicate that these registries truly keep us
safer, particularly when they lump together serious sex offenders with
less serious sex offenders, like SORNA does.
In fact, they give us a false sense of security and perpetuate the
myth that strangers are most likely to victimize our children, which
simply is not true. The sad truth is that most children are victimized
by family members or friends of the family.
Whether sex offender registries actually make us safer is a
question that is further complicated when you consider that SORNA does
not allow states to assess risk in their registries.
In other words, they must register people based solely on the
offense for which they were convicted, not on their actual risk of re-
offending. This is simply nonsensical.
The problem with SORNA's failure to take into account risk is
underscored when one considers that states had been registering sex
offenders long before SORNA.
Indeed, many have developed sophisticated risk assessment tools to
help them create and maintain their registries.
These systems were working for states, when Congress came along in
the Adam Walsh Act and decided to impose its ideas about what works
best on them.
SORNA does not allow states to use risk assessment in registering
offenders and so states that had been doing so and whose systems were
working had to scrap them and start all over with none of those tools.
In light of the research that affirms the value of risk assessment
tools and given the significant difficulties states are having
implementing SORNA, omitting risk assessment turned out to be quite an
unwise idea.
It is time to revisit the issue of risk assessment in SORNA.
Finally, it is worth noting that imposing federal mandates--
especially unfunded ones that then jeopardize a state's funding--goes
against one of the Majority's fundamental principles that it frequently
espouses, namely, states' rights.
Yet this did not stop the Majority from imposing SORNA and I am
certain that it will not stop my colleagues on the other side from
continuing to espouse the value of the Adam Walsh Act and SORNA.
States have been struggling with implementing SORNA for almost 5
years and the overwhelming majority are making a good faith effort to
comply with the law.
Yet despite their best efforts, only 3 states have been able to
comply so far.
This statistic alone should give both sides pause and prompt us to
develop real solutions to the problems that states, tribes, and
territories have encountered in trying to implement SORNA.
It also means we must revisit those aspects of the Adam Walsh Act
and SORNA that have been proven unworkable since its passage.
I thank the witnesses in advance and look forward to hearing from
each of you.
__________
Mr. Sensenbrenner. I thank the Chairman emeritus.
Ms. Doran, you are recognized for 5 minutes. And
everybody's full statement will be placed in the record.
TESTIMONY OF DAWN DORAN, DEPUTY DIRECTOR, SEX OFFENDER
SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING
(SMART) OFFICE, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC, ON
BEHALF OF LINDA BALDWIN, DIRECTOR, SEX OFFENDER SENTENCING,
MONITORING, APPREHENDING, REGISTERING, AND TRACKING (SMART)
OFFICE, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Doran. Good morning, Mr. Chairman, Ranking Member
Scott, and Members of the Subcommittee. I am pleased to have
the opportunity, on behalf of Director Baldwin, who was called
away last night on a family emergency, to discuss the
Department of Justice's work to implement the Sex Offender
Registration and Notification Act, or SORNA.
I am Dawn Doran, Deputy Director of the Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking, or SMART, within the Department's Office of Justice
Programs.
The SMART Office has the primary responsibility within the
Department of assisting States, territories and tribes in
implementing SORNA. The work of the SMART Office is a part of
the Department's efforts to assist in implementing the Adam
Walsh Child Protection and Safety Act of 2006.
I am honored to appear today with Director Hylton, our
invaluable partner in this effort. Also, I want to acknowledge
another invaluable partner, Ernie Allen and the National Center
for Missing and Exploited Children.
We are pleased that Ohio, Florida, Delaware, South Dakota,
Guam, the Confederated Tribes of the Umatilla Indian
Reservation, and the Confederated Tribes and Bands of the
Yakama Nation have substantially implemented SORNA. We are
cautiously optimistic that many more States, territories, and
tribes will follow suit by the implementation deadline of July
27, 2011.
The SMART Office provides critical resources and guidance
to the 248 SORNA States, territories, and tribes. Since fiscal
year 2007, the SORNA jurisdictions have received over $39
million in grants, training, and other resources under our
support for the Adam Walsh Act Implementation Grant Program.
SORNA addresses gaps in registration programs that are the
result of variations in laws, policies, information sharing,
and technology systems across the country. To address some of
these gaps, the Act permitted for the first time 212 tribal
nations to elect to become SORNA registration jurisdictions
and, of those, 192 have chosen to do so.
The SMART Office has provided numerous resources to help
these tribes address information sharing and technology gaps.
One example is the Tribe and Territory Sex Offender Registry
System, or TTSORS, available free of charge to all SORNA tribes
and territories. TTSORS can serve as both the administrative
registry system and the public sex offender Web site system
needed for tribes and territories to comply with SORNA. We have
developed a similar system to help States, called the Sex
Offender Registry Tool, or SORT, and another tool called the
SORNA Exchange Portal to help all SORNA jurisdictions to share
information about sex offenders who are relocating between
jurisdictions or are required to register in more than one
jurisdiction. These are free of charge as well.
The SMART Office also administers the Dru Sjodin National
Sex Offender Public Web site, which is the public's link to
information regarding registered sex offenders across the
country. All 50 States, the District of Columbia, three U.S.
territories, and 22 tribal nations have public Web sites now
linked to this site.
Many jurisdictions that have not fully implemented SORNA
have still made great strides. Director Linda Baldwin has
submitted, along with her written testimony, detailed
information on SORNA activities as reported by each State,
territory, and D.C. The information submitted is based on our
frequent contacts with the SORNA jurisdictions. To date, 47
States, the District of Columbia, five territories, and 41
tribes have submitted materials to the SMART Office for review
and technical assistance. The SMART Office has reviewed and
responded to all but the most recent of these submissions,
providing specific guidance back to the jurisdictions regarding
their current and proposed registration and notification
systems and laws.
Despite our best efforts, including the development of
supplemental SORNA guidelines that address some of the SORNA
jurisdictions' substantive concerns, and despite the efforts of
many on the State, local, and tribal level, some serious
barriers remain. These barriers include, among others,
opposition to SORNA requirements, such as juvenile
registration, the impact of government turnover, and the
anticipated cost of compliance. Most of the jurisdictions are
in the position of having to change their existing laws in
order to meet SORNA's requirements. Many States have introduced
bills in their legislatures that would move them toward
substantial implementation of SORNA. It is difficult to
predict, however, which ones will be successful in enacting
legislation prior to the July 2011 deadline.
One hundred and ninety-two SORNA tribes are facing barriers
similar to those of the States, with some variations. Most
tribes face challenges in establishing sex offender
registration and notification systems and codes for the first
time. Please be assured that the Department is committed to
helping every jurisdiction meet the implementation deadline and
that we will continue to work to develop the seamless web of
public sex offender Web sites and law enforcement information
sharing as envisioned by SORNA.
This concludes Ms. Baldwin's introductory statement, Mr.
Chairman. Thank you for the opportunity to testify today. And I
will be glad to try to answer any questions you or Members of
the Subcommittee may have.
Mr. Sensenbrenner. Thank you. The gentlewoman's time has
expired.
[The prepared statement of Ms. Baldwin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. Ms. Hylton.
TESTIMONY OF STACIA A. HYLTON, DIRECTOR, U.S. MARSHALS SERVICE,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Hylton. Thank you, Chairman Sensenbrenner, Ranking
Member Conyers, Ranking Member Scott, and all Members of the
Subcommittee for holding this hearing.
It is an honor to be here with Deputy Director Doran from
the Department's SMART Office, Ernie Allen from NCMEC, and
Representative Colloton from the Kansas State legislature.
Thank you for the opportunity to share the Marshals Service's
accomplishments and challenges related to this important piece
of legislation.
The Adam Walsh Act was a monumental bill, changing how this
country addresses registering, monitoring, and apprehending sex
offenders. This Committee, as well as the full House and
Senate, showed tremendous leadership in drafting and passing
this Act 5 years ago.
The Act added three new and important mandates for the
Marshals Service: To assist State, local, tribal and
territorial authorities in the location and apprehension of
noncompliant sex offenders, to investigate violations of the
criminal provisions of the Act, and to identify and locate sex
offenders displaced by major disasters. I am proud to say the
Marshals Service has made significant strides in each area.
To accomplish the enforcement mission under the Act, the
Marshals Service took numerous steps, including hiring and
training deputies in sex offender investigations, designating
leadership positions throughout the agency to coordinate
enforcement efforts, creating the National Sex Offender
Targeting Center, developing new partnerships with Federal,
State, local, and tribal agencies to locate and apprehend
offenders, and launching specific operations to target
noncompliant sex offenders nationally.
Our goal is to leverage our resources and partnerships to
maximize noncomplying sex offender apprehensions. For instance,
by training leaderships and field offices about our mandates
under the Act, coupled with the training of sex offender
investigators in our field offices, we have a more
knowledgeable workforce at every level. We combine this effort
with training for our State and local partners. Approximately
50 agencies have already participated, and we have two more
training sessions for new participants scheduled this spring.
Better training at all levels results in a greater number of
apprehensions.
Last July, the Marshals Service launched Operation Guardian
with State and local agencies to target the worst of the worst
sex offenders. As this Committee knows, the number of
noncompliance sex offenders is staggering. The Marshals Service
initiated this operation in each judicial district to target
the five most dangerous sex offenders based on their criminal
record, efforts to avoid capture or registration, and danger
posed to the public.
Let me be clear, every noncompliant sex offender is a
potential threat. This operation is working with limited
resources, with a focus on realizing the greatest success
possible. Operation Guardian helps to ensure we find these
particularly dangerous offenders and get them off the streets,
making our communities safer with the resources provided to us.
This targeted approach is proving successful with over half the
cases closed in less than a year.
The Marshals Service continues to be an agency which prides
itself in the extent and quality of its partnerships. Along
with the SMART Office, NCMEC, our Federal, State, local and
tribal law enforcement partners, we continue to find new and
innovative ways to strengthen our relationships. The National
Sex Offender Targeting Center at the Marshals Service is a
prime example of these partnerships in action. It is an
interagency center providing intelligence and resource support
to other law enforcement agencies, coordinating international
sex offender apprehensions, and generating new behavioral tools
for use by investigators. The Targeting Center is an important
resource to enforce the Act and to support our partners'
efforts to do the same.
Our success can be seen in the numbers. Since July 2006,
our deputy marshals have initiated almost 8,000 sex offender
investigations. In addition, the Marshals Service has either
directly arrested or assisted our State and local partners with
the captures of over 43,700 sex offenders nationwide. The
Marshals Service remains a leader in fugitive apprehension, and
the Act provided us the additional assets to take the
apprehension of sex offenders to another level.
This funding, provided by Congress since fiscal year 2008,
directly contributed to this impressive number of noncompliant
sex offenders brought to justice. Today, the effective and
efficient use of these resources is more important than ever,
and these numbers represent a significant return on the
investment made by Congress to keep our children and our
communities safe.
Thank you for the opportunity to testify and for your
ongoing support on this important issue.
Mr. Chairman, this concludes my remarks, and I am pleased
to answer any questions.
Mr. Sensenbrenner. Thank you.
[The prepared statement of Ms. Hylton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. Mr. Allen.
TESTIMONY OF ERNIE ALLEN, PRESIDENT AND CEO, THE NATIONAL
CENTER FOR MISSING AND EXPLOITED CHILDREN, ALEXANDRIA, VA
Mr Allen. Mr. Chairman, Mr. Scott, Mr. Conyers, the
National Center for Missing and Exploited Children was a
fervent supporter of the Adam Walsh Act in 2006. We remain so
today.
As of our latest State survey in December, there are now
728,435 offenders in the United States required to register and
update their information as it changes. As many as 100,000 of
those offenders are missing or noncompliant. The number of
registered offenders is going to continue to grow, and clearly
States are struggling with the challenge. Yet we believe that
States benefit from strong Federal cooperation and leadership
under the Adam Walsh Act. For example, as you have heard from
Director Hylton, the U.S. Marshals Service is tracking down
serious fugitive sex offenders. We are grateful for the
dedication and commitment of the SMART Office and their support
of the States and tribes as they move toward compliance.
Congress also mandates that the National Center provide
training and technical assistance to law enforcement in
identifying and locating noncompliant sex offenders, and we are
doing that.
In 2006, we created a sex offender tracking team which
receives daily requests from States and localities regarding
missing sex offenders. Our analysts run searches using public
record databases donated by private companies. We are looking
for links between noncompliant offenders and child abductions,
attempted abductions, and sexual exploitation cases. We then
forward that information to the appropriate law enforcement
agency in a leads package, which is then used to search for
fugitive offenders. To date, we have provided more than 6,000
of those leads packages, with more than 1,200 fugitive sex
offenders located and arrested as a result. And at the request
of the Marshals Service, we are assigning six of our analysts
to their Sex Offender Targeting Center to assist in their
efforts.
Regarding SORNA implementation, we believe that we have
begun to see real progress. It has been a challenge, dependent
upon both the executive and legislative branches of the States
to act. These efforts were delayed because the guidelines on
SORNA implementation were not issued until 2 years after the
law was enacted, providing no clear direction until 2008.
We are pleased that efforts are underway today in most
jurisdictions to work toward compliance. According to our
friends at the National Conference of State Legislatures, 41
States enacted SORNA-related legislation in 2009, 28 States
enacted SORNA-related legislation in 2010, and 23 noncompliant
States are currently working on legislation that will bring
them closer to achieving substantial compliance with SORNA. And
Mr. Conyers, that is the language of the statute, not
``strict'' compliance, but ``substantial'' compliance. And we
think the SMART Office is working in good faith with these
States to achieve accommodations, where appropriate, under the
law.
We recognize that States have faced barriers. A 2009 survey
responded to by 47 States indicated four primary obstacles; 23
States cited the juvenile registration and reporting
requirements; 20 States cited the retroactive application
provisions; 7 States cited the tier-based system; and 7 States
cited cost.
In January, Attorney General Holder published supplemental
guidelines that in our judgment effectively address and resolve
the concerns of most States about juvenile registration and the
retroactivity provisions. We believe that the Attorney
General's guidelines pave the way for many more jurisdictions
to come into compliance with SORNA. Congress has appropriated
funds for grants to States to help with compliance efforts and
to fund the Marshals for their Adam Walsh Act responsibilities.
We hope that Congress will remain committed to funding these
efforts.
Mr. Chairman, we share your frustration that just seven
jurisdictions have become compliant in the 5 years after the
passage of the Adam Walsh Act. However, we believe that today
the primary obstacles have been overcome and that many more
jurisdictions are moving toward compliance. We believe that the
goal of building a better, more unified sex offender
registration system across the Nation is within reach.
Thank you.
Mr. Sensenbrenner. Thank you.
[The prepared statement of Mr. Allen follows:]
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__________
Mr. Sensenbrenner. Representative Colloton.
TESTIMONY OF PATRICIA COLLOTON, CHAIR, CORRECTIONS AND JUVENILE
JUSTICE COMMITTEE, KANSAS HOUSE OF REPRESENTATIVES, LEAWOOD, KS
Ms. Colloton. Thank you, Mr. Chairman.
Chairman Sensenbrenner, Ranking Member Scott, and Members
of the Subcommittee, thank you for the invitation to testify
today about the Adam Walsh Act and efforts by States to
implement the Sex Offender Registration and Notification Act,
SORNA.
As Chair of the Corrections and Juvenile Justice Committee
in the Kansas House, I have focused my time in the legislature
on protecting those who are vulnerable and holding offenders
accountable for their crimes. I believe Kansas is one State
that, like many others, is working diligently to walk the line
between implementing the policies established by Walsh and
policies developed within Kansas over many years that address
our specific needs.
Kansas has a longstanding commitment to the safety of our
citizens, of course, and then particularly to our children.
Seventeen years ago, Kansas passed its Sex Offender
Registration Act which created a Statewide registry for
specified sexual offenders available for law enforcement use.
As of last year, over 5,000 sex offenders are in the Kansas
registry. We include all sexually violent crimes and all crimes
involving children under 18 years of age in our registry. We
have passed Jessica's Law, a mandatory hard 25 years for sex
offenders, and we made failure to register for 30 consecutive
days a prison-level felony. These policies reflect Kansas is
serious about registration compliance.
We have also learned that keeping Kansas safe from the
threat posed by known sex offenders requires more than a good
registry; it requires an entire coordinated system of
assessment, management, and supervision that starts from the
day the offender walks into the courtroom and extends through
their ultimate release into the community. Kansas has
legislation ready to proceed that would bring us more into line
with the standards set forth in Walsh. We have every intention
of complying with Adam Walsh by enabling our registry to link
to the nationwide SORNA database.
Even with our sincere commitment to comply with the
Herculean efforts that we have taken, bringing our State into
compliance is a time-consuming and sensitive process. We have
set up a State working group to assist us with determining the
scope of our implementation package. We set up that State
working group in 2006 and then waited for the very first
regulations to come out in 2008.
What we cannot guarantee is that the changes that we have
put into the legislation, the bill before my Committee to be
heard later this week, will be adopted wholesale or without
change, despite the threat of losing that Byrne JAG money.
So we need to applaud the SMART Office. They have worked
extremely hard with Kansas and other States. They have been
courteous and professional. They have gone through many
different issues with us, and we have a package that we have
worked with them. We just don't know if we can whip it through
the legislature this session.
While only seven jurisdictions have been classified as
compliant with Walsh, there has been significant work done and
progress that should not be overlooked. Over 250 pieces of
legislation have been passed across the country since 2006.
What you implemented with Walsh, Mr. Chairman, and those of you
who supported it, was a whole bevy of pieces of legislation
that enact pieces of the Walsh compliance picture.
Why the delay? There are several issues. First is timing.
Congress intended to give jurisdictions 5 years to come into
compliance, but the implementing guidelines didn't come out for
2 years, 2008, leaving these jurisdictions only the 3 years to
demonstrate substantial compliance.
Additionally, in January of this year, significant SORNA
implementation issues were finally clarified in the final
supplemental guidelines released by the Attorney General. Now,
those guidelines are very helpful. And I agree with what Mr.
Allen just said. They make compliance very, very possible. But
they came out in January of this year. States simply need more
time. Even a State like Kansas that has written and introduced
a bill needs more time to address the SORNA requirements in
full.
Secondly, the second issue that we have concern is that
juvenile registration. A number of States in compliance with
other requirements of SORNA are hesitant to adopt the juvenile
offender notification requirements. Many lawmakers from across
the country on both sides of the aisle oppose lifetime
registration and public notification for juveniles, especially
because juveniles that exhibit problem sexual behavior are less
likely to re-offend and more likely to benefit from treatment
and intervention.
In summary--is that a hint?
Mr. Sensenbrenner. Yes.
Ms. Colloton. In summary, the costs are great, but the
benefits of that national portal are excellent. We are working
hard to comply. But given the whole process, we need more time.
We consider the Adam Walsh a benefit to us, and we are working
to get there.
Mr. Sensenbrenner. Thank you very much, Representative
Colloton.
[The prepared statement of Ms. Colloton follows:]
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__________
Mr. Sensenbrenner. The Chair will now recognize Members for
5 minutes apiece, alternating by sides, in the approximate
order in which the Members appeared for the hearing, starting
with me.
Representative Colloton, if you can't make this deadline,
how much more time do you think Kansas will need to come into
substantial compliance?
Ms. Colloton. I would give us 2 more years in the sense
that it may well be that we start to vet the policy changes
contained in the agreement we have reached with the SMART
Office, and that we are unable to pass it this legislative
session. Remember, we are a 90-day citizen legislature. We do
meet every year, thankfully. Some of the States only meet every
other year. So I would say if you would give us next session,
we may well do it. If you are including all States, I would say
you need a 2-year time frame for those tentative agreements,
particularly under the January guidelines, to come into
fruition and be passed in legislation.
Mr. Sensenbrenner. Do you support the carrot-and-stick
approach, where the stick is reducing Byrne JAG funding?
Ms. Colloton. Not fully, in this sense; that much of that
money is used for victim treatment, for community corrections
treatment of sex offenders when they reenter into the
community. To take that kind of money away when it is the very
money that helps us control, track, and monitor, to do what is
smart--monitor and track--I think is counterproductive. But
what I would see as kind of being fair about it might be where
you give some credit for those States that have done at least a
partial compliance with SORNA. Every State I think has pretty
much done some of the pieces of SORNA.
I mean, you have unleashed here, with the Adam Walsh Act, a
whole variety of advances in tracking, apprehending, and then
monitoring sex offenders. So we are well on our way, I think we
are. And I would give partial credit--perhaps determined by the
SMART Office--and maybe take a little away. For example, you
are thinking 10 percent of Byrne JAG money. Maybe you would
give 90 percent, 80 percent, 50 percent credit, and not take it
all away. It goes for very good causes related to sex offenses.
Mr. Sensenbrenner. Thank you very much.
Mr. Allen, what is your view on how States are complying
and your response to the additional 2-year proposal that
Representative Colloton has put on the table?
Mr Allen. Mr. Chairman, I think Representative Colloton
makes a very good point. And we, too, have been concerned with
the total loss of Byrne JAG funds for States that have really
made a substantial effort and have not quite gotten there. So
some proportionate allocation of that we agree makes sense.
Our primary concern about extension is that our sense is
that States have really worked diligently, many States have
worked diligently to come into compliance by July of 2011. Our
concern with an extension is that I fear if the extension is
provided, States will just delay further in their process--
which I don't think is unheard of in these kinds of processes
for a variety of issues. So I think there is a real balancing
act here.
We certainly agree with Representative Colloton's point
about the fact that effectively States have only had 3 years to
come into compliance. And I think she makes the point--and
certainly the data we have from the leading associations
indicates--that most States have really made diligent efforts,
including passing various pieces of the legislation, to try to
get to compliance. So I think that is--not to pass the buck,
but I think that is something Congress needs to weigh; and that
is, an extension may effectively reduce the total number of
States that are compliant as of July of this year.
Mr. Sensenbrenner. Well, I believe in deadlines, and
excuses are going to have to be valid if there is to be an
extension considered. I will look at all 50 States and a good
percentage of the tribes to make a determination on that. I
really don't think 2 years is appropriate, as I have a feeling
that people won't get worried about this until January of 2013.
Mr Allen. That is exactly----
Mr. Sensenbrenner. And Governors do like to call special
sessions of legislatures upon occasion.
My time is up. The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, we just heard comments about losing all of
the Byrne Grants. Ms. Doran, if a State is out of compliance
under present law with no extensions, how much of the Byrne
Grant would they lose?
Ms. Doran. If a State has not complied by July 26, 2011,
and it has been determined that they have not substantially
implemented, the penalty is 10 percent of their Byrne JAG
funding. However, of course, the Act provides for a
reallocation. If a State is continuing to work toward
substantial implementation of SORNA, they may apply for that 10
percent back to their State toward specifically targeted SORNA
implementation activities.
Mr. Scott. Thank you.
Ms. Hylton, Mr. Allen indicated that there are
approximately 100,000 people on the registry that are out of
compliance. What do you do with that information?
Ms. Hylton. Sir, we continue to work diligently across our
partnership relationships with the SMART Office, with NCMEC,
and our State and local and Federal law enforcement partners to
continue to apprehend. Again, I think that we stand in a great
position with the Marshals Service to say that of those that
were noncompliant, we have actually with our State and local
partners either had a direct impact or assisted with the
apprehension of over 43,000 sex offenders nationwide. So we
continue to work those numbers, and I think----
Mr. Scott. You have apprehended and incarcerated 43,000?
Ms. Hylton. We have assisted or had a direct apprehension
of over 43,000 since the Act was passed in 2006.
Mr. Scott. Ms. Doran, has the Department of Justice done
studies to show the recidivism rate for those States with a
registry and those who do not have a registry?
Ms. Doran. Are you referring to SORNA?
Mr. Scott. Right. Does the fact that somebody has to
register reduce recidivism?
Ms. Doran. I am not aware of any studies that have been
conducted yet on SORNA and its effects.
Mr. Scott. What about Megan's Law?
Ms. Doran. Under Megan's law, there have been some studies
produced under that.
Mr. Scott. And what did they find?
Ms. Doran. The main purpose of registration and
notification is, of course, registration for law enforcement
purposes and sharing of information, and providing information
to the public.
Mr. Scott. Does the fact that there is a registry reduce
recidivism?
Ms. Doran. I would have to get back to you on those
studies.
Mr. Scott. Are there any studies that show whether or not
someone who is compliant on a registry versus someone who is
not compliant on a registry is more or less likely to offend?
In other words, the list of 100,000 that Ms. Hylton is chasing
down and incarcerated, is that list more likely to offend than
those on the registry that are in compliance?
Ms. Doran. No.
Mr. Scott. No, there is no difference?
Ms. Doran. That is correct. They are not showing to be more
or less likely.
Mr. Scott. The fact that you are not in compliance does not
mean that you are any more likely to offend than if you are out
of compliance; that is the finding of the studies.
Ms. Doran. That is one study, yes, sir.
Mr. Scott. Ms. Colloton, the juvenile issue, why are States
reluctant to have juveniles register on these public
registries?
Ms. Colloton. Well, there are a couple different reasons.
One is that juveniles that exhibit problems with sexual
behavior are much less likely to re-offend. And their brains
are developing; they are much more susceptible to treatment. So
I think to treat them and put them on a public registry and put
them on registration creates issues for them that are exactly
the opposite of the paternalistic juvenile system that we have
created in juvenile justice. And I think it is
counterproductive.
There is one other thing I would like to----
Mr. Scott. When you say ``counterproductive,'' are you
suggesting that putting a juvenile on the list would alter
their future opportunities such that you are actually
increasing the likelihood that they will get in trouble in the
future?
Ms. Colloton. Yes, absolutely. I think that if that
registry is published--and just as of January now, it doesn't
have to be published. And that means States will have 6 months,
if they believe in that policy, to comply. I believe in
deadlines too, but we have 6 months from the final regulations
now to July when the penalties start to go into effect, 6
months. And there are still some issues like the juvenile where
there really hasn't been a resolution.
The other area that there hasn't been a resolution on that
I would like to speak to for just a second is risk assessment.
It is important to know that many States who have had
registries for a long time do their tiering based on risk
assessment. Because just because you have pled down to a low
felony doesn't mean that you are a lesser sex offender risk.
And the one thing that is really needed here under Adam Walsh
in supplemental regulations--and then we would need some time
after that to get it done--would be that we allow risk
assessment to be used in States as the different tiering.
New Jersey did the very first sex offender act in 1992,
they did Megan's Law, the first registry, and they have done
tiering based on risk assessment since then. Adam Walsh is
requiring them to change that process and not use risk
assessment. That is one other thing that is very much needed
and it is critical with regard to juveniles.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Doran, who is responsible for the 2-year lag in
promulgating guidelines?
Ms. Doran. The SMART Office was stood up in 2007. The Act
was passed in July of 2006, and the SMART Office was stood up
in the beginning of 2007. I wasn't there from the beginning----
Mr. Gowdy. The SMART Office is part of the Department of
Justice?
Ms. Doran. Correct.
Mr. Gowdy. The Department of Justice was around in 2006,
right?
Ms. Doran. Correct.
Mr. Gowdy. So who is responsible for the 2-year lag in
promulgating guidelines?
Ms. Doran. The guidelines first have to be issued as
proposed guidelines, and they went through a lengthy and
extensive commenting session for that before. And then all of
those comments from the proposed guidelines were then
accumulated and reviewed. And based on those, they adjusted the
final guidelines which were issued in 2008.
Mr. Gowdy. So you think 2 years is a reasonable length of
time to take to promulgate guidelines?
Ms. Doran. The initial guidelines were quite lengthy and
complex because, of course, the Adam Walsh Act is quite lengthy
and complex. And so I know that the Department of Justice took
their time to make sure that they provided all of the
information that they could provide to the States----
Mr. Gowdy. Let me rephrase the question. Do you think 2
years is a reasonable amount of time to promulgate guidelines?
Ms. Doran. I wouldn't have a position on that one way or
the other.
Mr. Gowdy. All right.
Ms. Colloton--Representative Colloton, excuse me--I have
been listening this morning, and it seems as if there are only
two alternatives with respect to juvenile registration. Either
we are going to have a public list or we are going to have a
law-enforcement-only list.
Ms. Colloton. Correct.
Mr. Gowdy. There are other alternatives, correct? I mean,
you can have a list where camps could--I mean, you acknowledge
it is not just law enforcement that would want this
information?
Ms. Colloton. Oh, absolutely. And I note within Kansas,
when I mentioned those 250 changes in the law and that kind of
thing, one of the things that has happened is, of course, these
registries are being made available to different agencies that
deal with children; as you say, some private organizations that
deal with children, and all of that. So yes, there are steps
between complete--Kansas had the very first, in 1994, publicly
open sex offender registry. We also, by the way, had the very
first, in 1997, Web site registry, but we didn't do it for
juveniles. For juveniles, we limited it to very serious--some
agencies, some very well-known, well-regarded private
institutions that dealt with children.
Mr. Gowdy. Fourteen-year-olds can be prosecuted as adults
for homicide, and in some instances incarcerated for up to half
a century. So there is no Eighth Amendment issue with respect
to public registration; do you agree?
Ms. Colloton. Yes.
Mr. Gowdy. All right. So in the course of a minute, you and
I have agreed the alternatives are public registration, law
enforcement only, or registration where interested groups can
ask whether or not this person, this putative employee or hiree
is on a list. You and I did it in a minute.
Ms. Colloton. That is right.
Mr. Gowdy. Why do we need 3 years? Why 3 more years for
implementation? You and I did it in a minute.
Ms. Colloton. I was suggesting 2. I think with the tribes,
because they don't have the kind of digitized requirements of
Adam Walsh, you probably need more than that.
Mr. Gowdy. Why do we need 2?
Ms. Colloton. With regard to States, we need 2, and simply
for this reason: The final supplemental regs came out in
January. What they did is they changed several things----
Mr. Gowdy. Let me stop you right there. Who is responsible
for waiting until January to put out the final regs?
Ms. Colloton. Well, they came out of the SMART Office.
Mr. Gowdy. Which is part of the Department of Justice.
Ms. Colloton. Yes.
Mr. Gowdy. And this law was passed when?
Ms. Colloton. 2006.
Mr. Gowdy. And we waited 2 years for regulations and then
we waited until January of which year for----
Ms. Colloton. This year, 2011. And what I am saying is the
SMART Office has been excellent to work with. All last year
they worked with a group very hard--and the year before as
well. We have a working group to comply with SORNA. It was set
up in 2006. It has on it prosecutors, judges, law enforcement,
community corrections----
Mr. Gowdy. You will acknowledge the difficulty in
convincing people that 5 years is not enough time.
Ms. Colloton. We agree 5 years, but it has to be 5 years
from when we know what we are supposed to do.
Mr. Gowdy. What is a better motive for compliance than
Federal funding?
Ms. Colloton. Oh, how about protecting our children? I
mean, we absolutely believe that this is an excellent--the
national portal that SORNA sets up----
Mr. Gowdy. When you say ``protecting our children,'' are
you suggesting--are we going back to the juvenile registration
argument?
Ms. Colloton. No. What I am saying is----
Mr. Gowdy. Because when you say ``protecting our
children,'' that argument can go both ways. I can also ask you
why it has taken 5 years.
Ms. Colloton. You could also ask me--I am sorry?
Mr. Gowdy. My time is up.
Mr. Sensenbrenner. The gentleman from Michigan, Mr.
Conyers, is recognized for 5 minutes.
Mr. Conyers. Let's look at the tribe problem with the
Indians. I know you are here representing someone that couldn't
be here. But none of you have even mentioned the 212 Indian
tribes. Is it because you don't know about them or you don't
care about them?
Ms. Doran. The tribes actually have built into the Act a
reasonable amount of time after the deadline for them to be
able to implement. So they already have some extra time. And
the Department of Justice is very committed to working with the
tribes to continue to assist them with their implementation
efforts.
Mr. Conyers. Boy, is that standard bureaucratic rhetoric.
Look, you must know, I found out in 5 minutes that the
tribes don't get out of anything. The States will reimpose
their activity, isn't that right, Mr. Allen, on the tribes? So
they are not getting away with a thing.
That is the excuse that you folks come here to the
Committee and make us feel that the tribes are okay. The tribes
are going to get it in the neck. And if you don't know it, then
I am glad we are holding this hearing.
What do you say, Mr. Allen?
Mr. Allen. Mr. Conyers, I think the reality is that tribal
law has different challenges--the whole issue of tribal
sovereignty. There were provisions written into the statute. We
have met with the National Congress of American Indians on
these issues. Clearly, the SMART Office has dedicated personnel
to follow up with the tribes to try to address these legal
issues, but there is no question they are going to take more
time. And there is also no question that State compliance may
effectively roll in some of these tribal governments under
that.
So I think the SMART Office has been trying to respond, but
there is not a lot of clarity in the initial statute on tribal
governance issues.
Mr. Conyers. Well, the National Congress of American
Indians is asking for 5 more years. Do you know that?
Ms. Doran. Yes, sir.
Mr. Conyers. Well, why don't you say so?
Ms. Doran. I do. As I said, the Act itself builds in a
reasonable amount of time. And I think that----
Mr. Conyers. Well, they are asking for it. That doesn't
mean they get it.
Ms. Doran. Correct. But the Act itself builds in an
extension of time for them. And, as I have said, the Department
of Justice is not going to delegate their responsibilities to
the State. The Department of Justice is committed to each and
every tribe that is wishing to implement SORNA, to work with
them past the deadline to continue their implementation
efforts.
Mr. Conyers. Okay. Now, do you know that the States take
over when the tribes can't meet these deadlines?
Ms. Doran. I am sorry. Can you repeat the question?
Mr. Conyers. Do you know that the States take over when
they don't meet these deadlines?
Ms. Doran. If a tribe is eventually delegated over to a
State for registration and notification, but that is our
absolute last resort. The Department doesn't intend to delegate
any tribe that has any intention and wishes to work toward
implementation. And most tribes are doing so.
Mr. Conyers. Most tribes are doing so? There are only two
that are in compliance out of 212.
Ms. Doran. That is correct. Quite a few tribes are----
Mr. Conyers. Well, why are you saying that?
Ms. Doran. Quite a few tribes are working toward
implementation, just like the States are----
Mr. Conyers. Look, everybody is working toward it. All of
the States are trying. Please.
Ms. Doran. Also, over half the tribes are already in either
the testing stage----
Mr. Conyers. Give me a break, will you, this morning?
Ms. Doran [continuing]. Or in the actual stage of
connecting to the Tribal and Territory Sex Offender Registry
System and the National Sex Offender Public Website----
Mr. Conyers. All right.
Ms. Doran [continuing]. Which is half of their requirement.
Mr. Conyers. Look, thank you very much.
Mr. Allen, can you show some sympathy for the juvenile
problem? It is going to the Supreme Court. And attorney Nicole
Pittman, who we wanted as a witness but we only have a rule of
four--it looks like there is a constitutional problem as big as
this room involved in that Supreme Court case coming up. Could
you show us a little sympathy, even just for the hearing?
Mr. Allen. Well, no, Mr. Chairman. I think there has been
that kind of sympathy. And I think it is reflected in Attorney
General Holder's supplemental guidelines. What the provisions--
--
Mr. Conyers. Boy, here we go again.
Mr. Allen. No, no, no. I mean----
Mr. Conyers. Well, you know, he made some changes. I am
glad he made some changes. But that doesn't even begin to deal
with it.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Ms. Doran, following up on the gentleman from Michigan's
question, how many States and tribes do you expect to comply
with this Act by the July 2011 deadline?
Ms. Doran. By the July 2011 deadline, we are very
reasonably comfortable that between 10 and 15 additional States
will be able to implement by July. In other words, they don't
have any large, substantive barriers or challenges, and they
feel comfortable that their legislatures are going to be able
to pass this.
Mr. Goodlatte. And that is in addition to how many are in
compliance now?
Ms. Doran. In addition to the four States and the two
territories and the tribes. We think we have--we do believe
that an additional between 25 and 30 States may or may not be
able to meet the deadline. It is really too soon to tell.
Mr. Goodlatte. And how about the tribes?
Ms. Doran. These are all in session.
The tribes are definitely not going to be in the same
position. We have reviewed materials for about 50 tribes, at
this point. And, as I said, as I was telling Chairman Conyers,
they are all connecting to the sex offender registry system.
But they are going to need more time. The Department is
committed to doing that, under the reasonable amount of time
extension under the Act.
Mr. Goodlatte. Okay. And, in the last 3 years, your office
has awarded over $25 million in implementation and planning
grants. How has this money been used by the jurisdictions?
First of all, how has it been distributed? Are all 50 States
and 212 tribes availing themselves of this money?
Ms. Doran. It is a discretionary grant program for the Adam
Walsh Implementation--the Support for Adam Walsh Implementation
Grant Program. It has been a discretionary program since 2007.
Every eligible jurisdiction, all 248, are eligible to apply.
Mr. Goodlatte. How many have?
Ms. Doran. To date--I have the information here. It has
been submitted. To date, I would say we have, total--I would
have to get you back the exact number. But what I can tell you
is, as of last year, we were able to fund every jurisdiction
that applied last year.
Mr. Goodlatte. But you don't know how many applied?
Ms. Doran. Oh, last year, we had 28 jurisdictions.
Mr. Goodlatte. And over 3 years, do you know how many?
Ms. Doran. I cannot give you an exact number right now, but
I can get that back to you.
Mr. Goodlatte. Let's say we are three times that number,
around 75. Is that an indication that there are 175
jurisdictions that think so little of complying with this law
that they are not applying for the funding but they are still
complaining about not being able to comply? What is the----
Ms. Doran. No, not necessarily. Out of the seven
jurisdictions that have implemented, four of those didn't
receive any Federal funding.
Mr. Goodlatte. Okay. Very good.
And your office has also provided software platforms for
the States and tribes to use to build their capacity to feed
information into the national sex offender registry. What has
been the impact of that software?
Ms. Doran. The software has been an enormous success,
particularly for the tribes. I know I have talked about it a
couple of times, but the tribe and territory sex offender
registry system has been enormous for the tribes. Over half of
them are now in the testing stage or using it.
And, out of the great success from that, the States asked
if they could also have a similar tool developed for them. And
we developed the Sex Offender Registry Tool. And quite a few
States, as many as 10 right now, are testing it or looking into
it and are using that tool, as well, for their registry system.
Mr. Goodlatte. Thank you.
Ms. Hylton, are there any additional law enforcement
authorities that would help the Marshals Service to better
investigate and track sex offenders?
Ms. Hylton. Yes, there is, and thank you for that question.
The Marshals Service would greatly benefit from documentary
administrative subpoena authority.
You know, as you can appreciate in any investigation, but
one of so sensitive in protecting our children, the ability to
immediately react during an investigation is critical to the
apprehension of the fugitive or the noncompliant sex offender.
And so, having the ability to have documentary administrative
subpoena would allow the investigators real-time information
that is critical to apprehending the individual. That would be
the greatest asset we could receive at this point to take our
Adam Walsh Act responsibilities to a higher level.
Mr. Goodlatte. Let me get one more question in before my
time runs out.
Are there other agencies that have the ability to issue
administrative subpoenas? And have they been used without
overreach on their part? Do they have a good track record?
Ms. Hylton. Thank you. I appreciate that.
Yes, I believe that there are, within the Department of
Justice, the DEA and FBI have the ability. It has proven
effective. I cannot speak at this point to the integrity of
their processes. But, certainly, if given that ability, what we
are really looking for is documentary, which is an asset that
would provide us limited responsibility but allow us to get
what we need on the fugitive investigation. So it would serve
vital to us. And we would look at the best practices when we
implement that. And I am confident that we can keep the
integrity of the authority intact.
Mr. Goodlatte. Thank you, Mr. Chairman.
Ms. Hylton. Thank you.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Georgia, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman, for holding this very
important hearing, one that affects the lives of many people,
many of them who don't belong on a child sex registry or any
sexual registry.
And what we have here today is an act; for some reason, it
is called the Adam Walsh Act. I don't know if there has ever
been any evidence uncovered that would establish the fact that
this horrific murder of Adam Walsh had anything to do with a
sex act. But, nevertheless, that is the name of the Act that we
are dealing with here today.
That act is pretty strict and pretty broad in scope. It
requires that all persons convicted of a sex offense must be
placed on sex offender registry. Is that correct? Is that true?
Mr. Allen. Above a threshold. There is a threshold of
severity that requires--you would have to--so very minor
offenses would not get you on the sex offender list.
Mr. Johnson. Well, certainly, a definition of what
constitutes a sex offender act is any criminal offense that has
an element involving a sexual act or sexual contact with
another. So that means, does it not, that just simple
possession of child pornography would require the placement
automatically of a defendant or a convicted person on the sex
offender registry? Isn't that correct?
Ms. Doran. No, that is not correct.
Mr. Johnson. You don't think so?
Ms. Doran. If it is a Tier 1--a Tier 1, they have to
register for the law enforcement database, the national sex
offender registry----
Mr. Sensenbrenner. The Chair would remind members of the
audience that they are here as guests of the Subcommittee, and
expressions of support or opposition to any of the statements
are specifically prohibited by House rules.
Mr. Johnson. And if I might get back my 20 seconds.
Mr. Sensenbrenner. You may.
Mr. Johnson. Okay, thank you.
Ms. Doran. Tier 1's do not necessarily have to be publicly
posted. It is up to----
Mr. Johnson. Okay. Well, now, that is fine. That may be
true in some States.
Ms. Doran. Right.
Mr. Johnson. In other States, it may not be true.
But it is also true that just an online chat with someone--
between persons talking about sex, and one person to the
conversation is actually a child posing as an adult, that can
be an offense that renders one subject to placement on that sex
offender registry. Even sex between, say, a 17-year-old and a
15-year-old, consensual, requires placement on the sex offender
registry.
Now, I see you are shaking your head, but I will tell you,
being a criminal defense lawyer for 27 years before I became a
congressman, I handled many cases involving allegations of
misconduct involving sex. And so I know what I am talking about
in Georgia.
Even when you are placed on this sex offender registry, you
cannot live within, say, 500 feet of a child or of a school or
of a playground or of your neighbor's backyard pool, where
there are children who may congregate. And so, therefore, you
have to establish a place somewhere, 500 miles from nowhere,
where there are no children as the only place for some people
to live.
Now, I want you to answer this question for me. Is there
anybody here who has any objection to, instead of applying
rigid sets of Federal law to an offense, compelling placement
on a registry----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Johnson [continuing]. That you would not support an
amendment----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Johnson.--that would enable a judge, based on the facts
that----
Mr. Sensenbrenner. The gentleman will suspend. His time has
expired, including the extra 20 seconds.
The gentleman from Pennsylvania, Mr. Marino.
Mr. Johnson. Could they answer the question, sir?
Mr. Sensenbrenner. The gentleman used up all of his time.
The gentleman from Pennsylvania, Mr. Marino.
Mr. Marino. Mr. Chair, I yield my time at this point.
Mr. Sensenbrenner. Okay. The gentleman from Texas, Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
Thank you for being here.
Back in 2005, I was one of the several that helped write
the Adam Walsh Child Safety Act. I think it is a good piece of
legislation. At that time, we were concerned about some of the
horrific crimes that were being committed in the United States.
For some reason, in that year and subsequent years, there was
almost an epidemic of young children being kidnapped by sex
offenders, previous sex offenders, and taken throughout the
United States, and criminals continued their criminal ways.
I want to thank Ed Smart for being here today, and my good
friend, Mark Lunsford, as well. Mark, like you, I have a
photograph of your daughter in my office, and I will continue
to do so for as long as I am in Congress.
Because of the crimes committed against the Smart family
and Jessie Lunsford, we saw a need to try to keep up with these
child molesters. When they commit a crime in one State, they
may register in that State, and then they flee to another State
to continue their criminal ways. That was the purpose of the
Adam Walsh Child Safety Act.
If it needs to be tweaked to refine it more, let's tweak
it. But let's make sure that the law is enforced.
A person who is a registered sex offender, according to our
court system, does not have a constitutional right to be
anonymous anymore. I agree with that provision. There is no one
that values privacy more than me, but, in this case, a person,
once they choose to commit a crime against America's most
innocent, we need to know who they are and we need to have them
on a registry. If we need to fix it for juveniles, that is a
different issue.
I want to address some questions to Ms. Hylton and then to
you, Ernie Allen.
Ms. Hylton, do you think that the law, the Adam Walsh Child
Safety Act, is a necessary tool to protect children, our
society, the Adam Walsh Child Safety Act?
Ms. Hylton. Yes, sir.
Mr. Poe. Why?
Ms. Hylton. It allows us the opportunity, within the
Federal system, to provide our assets and our ability to reach
further across the Nation in the apprehension of noncompliant
offenders and also violent offenders.
So, as you know, at the State and local level, they don't
always have those resources. By integrating the U.S. Marshals
Service into the process through the Adam Walsh Act, it allows
them to provide their information to us and us to provide our
assets and our knowledge and our tracking abilities to quickly
apprehend these individuals and protect our children. There is
no doubt about it.
Mr. Poe. Mr. Allen, thanks for your work in missing and
exploited children. It is a noble cause, to take care of
America's kids.
What do you think about the Adam Walsh Child Safety Act and
what Congress should be involved in, or not involved in, in
this area?
Mr. Allen. Judge Poe, we think it is incredibly important.
The reality is, 6 years ago, 5 years ago, and today, we still
face a wide range of disparity from State to State in terms of
existing law. And there is no question but that the most
serious offenders take advantage of those gaps.
The goal of the Adam Walsh Act was to create a system where
there is far greater consistency from State to State and to
provide a reasonable Federal role. We think the Marshals
Service is doing that. You heard Director Hylton's numbers. We
are identifying these traveling offenders and bringing them to
justice.
I recognize--Representative Colloton made a good point--
that there are States that have been out there doing important
work in this space. The oldest sex offender registry in this
country is California's, which was created in 1947. This is not
new law; this is not a new concept. The goal is simply to
eliminate the gaps.
One of the reasons we still estimate the number of
noncompliant offenders is that many States, maybe most States,
still don't know how many of their registered sex offenders are
noncompliant. Because what we saw was a situation in which
offenders were registering by mail without that, kind of,
personal presence.
So we absolutely believe in the law. We think clearly that
there has been a process to reach a reasonable level. We think
the Attorney General's guidelines on the juvenile provision,
which eliminate adjudicated juveniles being on the public
registries and Web sites, we think it is a reasonable step
forward. But it doesn't mean that there aren't serious offenses
being committed by juvenile sex offenders who are starting when
they are very young.
Mr. Poe. Thank you.
Mr. Chairman, I yield back.
Mr. Sensenbrenner. Thank you.
The gentlewoman from California, Ms. Chu.
Ms. Chu. Thank you, Mr. Chair.
I address this question to Ms. Doran and then to Mr. Allen.
I do come from California, which was, indeed, the first
State to establish the sex offender registry, back in 1947.
Since then, we have made great advances, and we have
established the California Sex Offender Management Board, which
came from a bill that I wrote when I was in the State
legislature. What it does is bring together law enforcement,
judicial officers, probation officers, treatment professionals,
and advocates together to fashion a comprehensive way of
dealing with sex offenders and actually reducing recidivism on
a more comprehensive basis.
And these are on a variety of variables. They are basically
the risk assessment that is done for these variables that have
high correlation to sexual recidivism, such as criminal
history, victim profile, and age at the time of offense, to
determine an offender's risk of recidivism.
But the Adam Walsh Act bases the offender's crime only on
conviction and not on any kind of risk-assessment score. So I
believe that we have a superior registration system in place.
And I want to know, what are the States' rights in a
situation like this? We don't want to replace our superior
system with the Adam Walsh system. We have put a lot of time
and a lot of expertise into a system that will actually reduce
recidivism.
Ms. Doran?
Ms. Doran. Thank you for your question.
The California system, as with most of the States that use
risk assessment, is not inconsistent with SORNA's purposes.
Yes, SORNA does require a conviction-based offense for their
initial registration and tiering. But risk assessment can be
used and is not incompatible with SORNA for purposes of public
notification, treatment, supervision, and the other uses that
people and States use risk assessment for.
There has been a lot of confusion about that among the
States, and we did issue a clarification document entitled,
``An Implementation Document on the Uses of Risk Assessment
Consistent with SORNA.'' And we are in contact with California
and hope that we can move forward on some of those issues, as
well as their information-sharing that they are working on.
Ms. Chu. Well, I would like to follow up on that, because
the California Sex Offender Management Board has recommended
that California not come into compliance with the Adam Walsh
Act. And the reason is not only what I have just mentioned, we
believe we have a superior system, but also the monetary
situation is utterly ridiculous.
The cost for implementation of the Adam Walsh Act would be
$21 million to probation for conducting presentencing record
checks, $10 million for local law enforcement agencies to
conform with changes in frequency of registration requirements;
$770,000 in a one-time cost to the attorney general's office to
re-tier the registered offenders.
This amounts to $32 million, and that doesn't even
calculate the cost of an additional incarceration. But the
amount that we would get from the JAG Byrne funds is $2
million. So $32 million we would lose; $2 million we would
gain.
What is the point to this?
Ms. Doran. Well, I would also add that the responsibility
to implement is an ongoing responsibility every year. So,
unfortunately, that penalty will be applied each and every year
that California or any other State doesn't come into compliance
with the Adam Walsh Act.
And I am glad that you brought up the cost. There has been
a lot of information given on cost, as well. If you would like
me to expand a little bit on what the SMART Office has been
able to learn about the true cost of implementation.
Ms. Chu. Well, you are saying that California would comply
and that there some State rights. You are saying that there was
confusion and that now they will qualify. But are you saying,
then, that they would qualify for these JAG Byrne funds?
Ms. Doran. If they were to substantially implement.
California would need to work with the SMART Office and submit
their legislation and their substantial implementation packet
to move forward.
And we are happy to do that with California. We have
actually made more in-person visits to California than any
other State, attempting to work with them on implementation of
SORNA. And we look forward to continuing to do that with
California.
Ms. Chu. Okay.
Mr. Allen, do you have any comment on this?
Mr. Allen. I think the only point, Congresswoman, that I
would raise is that, as I understood the debate at the time of
the Adam Walsh Act, a number of States were doing some
variation of risk assessment, but they were all over the place.
And my understanding is that bipartisan leaders of the Congress
concluded that the Adam Walsh Act was intended as a floor, as a
minimum set of steps that States needed to take. And the
reality is that--I think it was felt that the best predictor of
future behavior is past behavior. So I think that is why that
was used.
But, as Ms. Doran points out, it does not preclude States
from applying and using risk-assessment tools as long as they
are substantial and meaningful.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentlewoman from Florida, Ms. Adams.
Mrs. Adams. Thank you, Mr. Chair.
Ms. Doran, I have some questions, but you wanted to expound
on the cost, and I am curious about that.
Ms. Doran. Sure, absolutely.
The cost of SORNA really, for the jurisdictions, can be
divided into two major categories. One is their start-up costs
that they will be required to do, mainly their information
technology infrastructure and reclassification, any costs that
are associated with that. And then they have their ongoing or
their maintenance costs that are associated with implementation
of SORNA, which is mostly in the category of personnel because,
for many jurisdictions, depending on their reclassification,
they will need additional personnel, additional equipment to
handle additional check-ins and probation and supervision.
But what we have learned so far--we have gotten actual
numbers from one State that has implemented. And Ohio's number
for start-up costs for implementation was a little over
$400,000. Now, that doesn't include their ongoing maintenance
costs, and Ohio is keeping us informed about that as they move
forward.
Mrs. Adams. Thank you.
And I have heard a lot about the risk-assessment tool and
how it is used. How long have they been using these risk-
assessment tools? I know California has had one for a while.
But how are they tested? What is the research on it?
Can anyone answer that?
Ms. Colloton. Sure. The LSIR, the level of service risk
assessment, is used by most States to guide who is a high risk
at recidivating and then who isn't, and to guide how much time
you are going to put in monitoring them, what sort of
treatment, and that kind of thing. And it looks at 20 different
factors. It is a test. And it is a dynamic test, because it
goes to things like what are their leisure activities, you
know, what sort of mental health background had they had,
substance abuse, et cetera. It combines that.
And what is so misleading and a problem when we are making
these changes for the Adam Walsh Act is that, that is how we
manage offenders. We manage them based on dynamic risk factors.
And we have very limited resources, so we use those to
determine how much of a parole officer staff we put on it, all
the rest.
But now what we will put on the public registry will just
be the plea bargain that they got, the offense that they got
convicted of. So that somebody with a low-level sex offense may
be a very high risk--may be a real danger to our children. And
what Adam Walsh requires and where we need to change that still
and give us a little more time then is allow those States who
wish to to have their public notification relate to the risk,
the same risk that we supervise on, rather than just the name
of the crime, you know, the level of the crime that they
happened to be convicted of in the plea bargain.
So we are absolutely on the same page with Adam Walsh on
the public registry of these sex offenders. The national portal
is critical. But we absolutely believe that we need at least
another year and some supplemental change for risk assessment
to make this really work.
Because, just like California, most States have spent a lot
of time on their registries. What I was trying to say to Mr.
Gowdy is, we care about the children too. That is why most of
us--maybe not as early as 1947, but we have put a lot of time
into the whole procedures we have in our sex registries and the
way that the sheriff's office uses them.
I would like to say one other thing, if I could, on the
money that has been spent by the Justice Department. What they
are doing in Kansas, as an example, is we have the national
portal software all installed. That is not a problem. That is
State to State. But what really matters is county to county,
sheriff's office to sheriff's office, in the 105 counties in
Kansas.
To do that, SMART has also created a piece of software
called the SORT software. But they have given us a $300,000
grant so that we can tie the technology at each of the
sheriff's offices together in the State, so when a sex offender
changes employment or travels or changes jobs, we can notify.
And, of course, if he absconds, we can notify. It is that money
and the grant money within the State that becomes very
important for monitoring, as well.
I just wanted to put that in because I don't think----
Mrs. Adams. Thank you. I am about to run out of time.
And as someone who just came out of the Florida legislature
and was involved as a cosponsor of the Jessica Lunsford Act and
actually worked with the legislature last year in Florida to
come to substantial compliance under the Adam Walsh Act, I am
concerned that we are, you know, now getting to a level--
January of this year, we are giving the States that
information. And it seems like it has been a very long time
coming, and the States are having a hard time complying. But,
at the end of the day, we need to protect our children.
Coming from a State where the capital is about 20 minutes
from the State of Georgia, I recognize from law enforcement
background that these offenders do travel across State lines.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, let me thank you for the
hearing, and let me thank the Ranking Member.
I remember 2006, when this bill was passed, and remember
how hard we worked. And we all know John Walsh, and we know his
passion. I just couldn't fathom letting him down and
disappointing him, not because he is a person that would not
override difficulties, but because this is something that has
been constructed with not only tears but concerted thought
processes.
So let me begin with the Justice Department. And I just
can't fathom why we took so long to get the basic information,
as I understand, the regulatory scheme or structure to the
States. And if you have already said, please just brief me as
to why it took so long.
Ms. Doran. Are you referring to the supplemental guidelines
that were just issued?
Ms. Jackson Lee. That and--yes.
Ms. Doran. The supplemental guidelines that were just
issued in 2011 were really the culmination of a great deal of
work from the States, from the jurisdictions, from the SMART
OFFICE.
The SMART Office, I would say as early as 2009, did a
really comprehensive review of what the barriers were, why
States and tribes were having difficulty coming into
compliance. And there were obviously a few large barriers. And
we met with many of the national organizations--the National
Criminal Justice Association, National Congress of American
Indians, National Conference of State Legislators--as well as
we met with Mr. Walsh himself and the Surviving Parents
Coalition. And we really tried to work toward the issues that
were causing the most difficulty for the States and the tribes.
Ms. Jackson Lee. And what did you consider were the most
difficult ones?
Ms. Doran. We considered the most difficult ones to be the
juvenile issue, the juvenile registration and notification
issue. And so, within the supplemental guidelines, we did what
we could, underneath the Attorney General's authority and
discretion, to allow States the discretion not to post those
names publicly.
Under the retroactivity issue----
Ms. Jackson Lee. And that is if you were a juvenile having
perpetrated an act?
Ms. Doran. That is correct. A juvenile that would have to
register under SORNA----
Ms. Jackson Lee. Right.
Ms. Doran [continuing]. Exactly--for a serious sex offense.
And then under retroactivity, what we did was we limited
the scope that States would have to go back to in order to
recapture, and we limited that to felony convictions, as well
as those that were already incarcerated or under probation or
parole. So we limited that scope for the jurisdictions, as
well.
Ms. Jackson Lee. And, at the time that the law was passed,
do you know how quickly--before you found the need for
resolving some of the most difficult questions, did you have a
regulatory scheme after 2006 that got to the States quickly?
Ms. Doran. The guidelines were issued in July of 2008.
Ms. Jackson Lee. Okay, so it was still 2 years.
Ms. Doran. That is correct.
Ms. Jackson Lee. And that is a challenge.
Let me just ask, if I can, Ernie, if you would--you worked
through this. You know the horrific circumstances that have
occurred. There are some elements that I will just raise with
you on the juvenile question.
You know, there are some cultures where marriage occurs
before 18. And there were some issues regarding whether those
juveniles--how we actually treat them if we register them and
they are, in fact, able to be rehabilitated. I just want you to
reflect on that.
But, more importantly, I want you to reflect upon how
important it is to stay the line on this legislation and your
sense of the plea by States that it is just too difficult.
Mr. Allen. Well, first, Congresswoman, on the juvenile
provision, we are enthusiastic supporters of the Attorney
General's supplemental guidelines. I think it is infinitely
reasonable for serious juvenile offenders over the age of 14 to
be registered but not be subject to inclusion on the public
databases.
We believe in the rehabilitative ideal of the juvenile
courts, the juvenile justice system. But the reality is, the
evidence proves--one of the leading researchers talked about
the myth of the dirty old man. The typical offender in child
molestation cases starts very young.
Ms. Jackson Lee. Okay.
Mr. Allen. So it is important to identify, to rehabilitate,
to direct treatment resources. But we think the Attorney
General's accommodation on that is reasonable and is going to
enable a lot of States to become compliant.
Ms. Jackson Lee. Let's go to my next two because of the
timing.
Mr. Allen. Yeah, the next part is, we see real progress.
States, I think largely because of the supplemental guidelines,
our sense, as Ms. Doran has indicated, is that States are
enacting law. They are moving toward compliance. And we think
there is going to be a critical mass in a very short period of
time.
Now, Representative Colloton's points about timing, I
think, have real validity, and that is something Congress has
to grapple with. But we think it is important to stay the
course, to implement this. And we think there are going to be a
significant number of States compliant in a very short period
of time.
Ms. Jackson Lee. Well, I agree----
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Florida, Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
First, I want to recognize Ed Smart and Mark Lunsford and
the other members of the Surviving Parents Coalition that are
in the audience, and appreciate their advocacy.
My question is for Dawn Doran. I appreciate your testimony
on sex offender registration. And I am quite proud, along with
my colleague, Ms. Adams, that our home State is fully
compliant. But as we discuss the reauthorization of the Adam
Walsh Act, I want to focus on civil confinement, which is
another provision of the law.
Now, the representative from Kansas, I am sure, is familiar
with the civil confinement provisions. They have a State
statute that went all the way to the Supreme Court and was
upheld in 1997 and was really a model law for the rest of the
country. There are now 19 States that have civil confinement
laws on the books. And because these kinds of crimes are more
often committed at the State level, that makes sense. But there
is also a general consensus that most child sex offenders are
not, quote/unquote, ``curable.'' And there really needs to be a
priority made in ensuring that, following the expiration of a
criminal sentence, that there is a way to keep these
individuals who are very, very likely to re-offend confined,
with the proper review that civil confinement statutes require.
With Chairman Sensenbrenner's help, I was able to include
in the Adam Walsh Act a grant program that provided for
incentives for other States to enact civil confinement
provisions under certain requirements. And Section 301(d)of the
law required the Attorney General to submit a report to
Congress at the end of each year, beginning in 2008, to inform
us about the progress that States were making on adopting civil
confinement statutes of their own and the rate of sexually
violent offenses in that provision.
Can you tell me whether that report was ever filed in any
year?
Ms. Doran. My understanding, unfortunately, is that the
civil commitment portion of the grant program was never
appropriated any funding. And, therefore, OJP was not issued
any grant funding in that area.
Ms. Wasserman Schultz. Okay. Well, let me read to you from
the statute, which does not say anything about the report being
contingent upon funds being appropriated. It is Section D. It
says, ``Attorney General reports not later than January 31st of
each year, beginning with 2008. The Attorney General shall
submit to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives a
report on the progress of jurisdictions in this section and the
rate of sexually violent offenses for each jurisdiction.''
There was $87.3 million appropriated for the entire Adam
Walsh Act over 3 years. There is nothing in the language that
requires that report to be tied to appropriations.
Is the Department of Justice in the habit of ignoring
Congress's direction?
Ms. Doran. Well, the civil commitment issue is outside of
SORNA and outside the scope of the SMART Office. But I will
certainly have that information given to you as soon as the
hearing is concluded.
Ms. Wasserman Schultz. Okay, well, I mean, your answer
speaks volumes.
Mr. Sensenbrenner. Without objection, the information will
be included in the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. The gentlewoman may proceed.
Ms. Wasserman Schultz. Thank you so much, Mr. Chairman.
And I can appreciate that, in 2008, from the 2007 CR, we
had a CR and that there were not substantial appropriations
provided for the Adam Walsh Act in general. I was a Member of
the Appropriations Committee at the time. And, to be honest
with you, I lament that the Adam Walsh Act was significantly
underfunded overall.
But the language in the statute clearly says that the
Department of Justice was supposed to issue a report. It should
have been a priority to issue that report annually since 2008
regardless of whether the appropriations were made. So I look
forward to hearing back from you on where you are going to go
from here, because I would expect that reports would be
generated.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. Thank you----
Ms. Jackson Lee. Would the gentlelady yield?
Ms. Wasserman Schultz. If I could yield to the gentlelady
from Texas.
Ms. Jackson Lee. Thank you very much. And I thank you for
your service, as well, Congresswoman.
Quickly, Mr. Allen, I just wanted to finish your point
about your believability in States being able to get this done.
I think what you were saying is, you expect that there is go to
be, sort of, a synergism of everybody rushing. So, therefore,
should we not keep the pressure on? There are so many
vulnerable children. I am just trying to hear where you are on
this situation.
Mr. Allen. Congresswoman Jackson Lee, I absolutely believe
we need to keep the pressure on and stay the course. I think
States have been provided the latitude to come into compliance.
I am hopeful that there will be a significant group of States
that become compliant quickly. And I think, once there is
critical mass, there will be significant pressure for the rest
of the States to join in.
Ms. Jackson Lee. I agree with you, and I thank you and
yield back.
Mr. Sensenbrenner. The time of the gentlewoman from Florida
has expired.
I would like to thank all of the witnesses for giving us
some extremely important information as we consider
reauthorization of the Adam Walsh Act.
I thank my colleagues for their active participation in the
hearings.
The gentleman from Virginia has a unanimous-consent
request.
Mr. Scott. Thank you, Mr. Chairman.
I ask unanimous consent that the testimony by Nicole
Pittman, a juvenile justice policy analyst attorney for the
Defender Association of Philadelphia, be included in the
record.
Mr. Sensenbrenner. Without objection.
[The prepared statement of Ms. Pittman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Sensenbrenner. And, without objection, this hearing is
adjourned.
[Whereupon, at 11:42 a.m., the Subcommittee was adjourned.]
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