LawPulse

Failing to implement legislation bringing Illinois into compliance with the federal Adam Walsh act is costing the state federal grant funds. But would enacting the law cost even more?

A bill to amend the Sex Offender Registration Act, 730 ILCS 150/1 et seq, has been referred back to the Senate's Assignments Committee but raises whether Illinois' compliance with federal sex offender requirements would be fiscally prudent, ISBA's Director of Legislative Affairs James Covington says.

The high cost of SORNA

SB 1040 would implement the Adam Walsh Child Protection and Safety Act of 2006, also known as the Sex Offender Registration and Notification Act (SORNA), 42 USC §16911 et seq, a federal statute famously named after a Florida boy who was murdered 30 years ago by a convicted sex offender. Among other matters, SORNA eliminated statute of limitations defenses for many sex crimes and revised federal requirements for state sex offender registries.

SB 1040 would bring Illinois into compliance with SORNA by, among other things, increasing the registration period for sex offenders from 10 years to 25 years or natural life in the event of a violation of the registration provisions. Sexual acts by juveniles would lead to registration under this bill even if consensual, as between two teenagers, Covington notes.

As an incentive for state compliance, SORNA provides that noncompliance will result in a 10 percent reduction in the amount of federal funds, known as Byrne Justice Assistance Grants, that noncompliant states would otherwise receive pursuant to the Omnibus Crime Control and Safe Streets Act of 1968 (42 USC § 3750 et seq). The Department of Justice determines and monitors state compliance under 42 USC § 16945. The original federal deadline for states to comply was July 27, 2009; that has been extended twice, each time by a year.

Estimates of how much Illinois risks losing for its noncompliance with SORNA range from $900,000 to $1.6 million.

But the loss of Byrne Grant funds may not be enough of an incentive for Illinois or other states to pass legislation such as SB 1040. The reason: implementing SORNA has, for some states, proved far more costly than failing to comply.

Ohio, for example, the first state to become fully compliant with SORNA, has had to defend more than 7,000 legal claims as a result, according to its office of the public defender, as quoted in a report dated July 28, 2011, from CNN. The Ohio Supreme Court has found its statute's retroactive registration requirement unconstitutional twice.

Texas, which, like a majority of states, including Illinois, has yet to comply, has conducted studies that suggest that complying with SORNA would require the state and its cities and counties to expend an additional $38.7 million, compared with losing only $1.4 million in federal funds for noncompliance.

Romeo and Juliet

Apart from cost, Betsy Clarke, a lawyer with Illinois's Juvenile Justice Initiative, explained her organization's substantive concern over SORNA's effect on the lives of juveniles.

"The idea behind SORNA was that if you know where the predators are, maybe you can keep your children safe from them. But the Adam Walsh Act turned into a very complex piece of legislation." Most significantly, Clarke said, the statute doesn't distinguish between pedophiles and Romeo and Juliet, who, as readers of Shakespeare's play will recall, were minors.

"There's a big difference between the knife at the throat in the alley and children sexually experimenting. SORNA's system puts them all together on the same registry. So the information that's available to the public isn't very helpful, because it lumps so many different cate­gories together."

Clarke points out that registration can inhibit rehabilitation. "By putting people on this public registry it makes it very difficult for them to get an apartment, to get a job, and to move on with their lives. Because the stakes are so high and the penalties so disproportionate, it makes it very challenging for law enforcement. Registration for a lengthy period on a public registry is the same for all offenses, so law enforcement authorities will be less inclined to prosecute the lower level sex offenses, which may have caused some trauma," Clarke said.

"And there's no evidence demonstrating that this overly broad approach is going to help in preventing sexual assaults," she continued. SORNA, Clarke said, is "a cookie cutter response to a complex issue that needs an individualized approach."

Separately, the Sex Offender Registration Act was amended by PA 97-578. The new law requires sex offenders or sexual predators who have either never been required to register or who have successfully completed a 10-year registration period to register or reregister if they have been convicted of any felony after July 1, 2011. Previous registrants must also reregister if the sentence for the offense for which they were registered earlier now requires a registration period of more than 10 years. That means pleas in any felony case will need to trigger a thorough review of past adult and juvenile findings of guilt to ensure the plea does not require registration, Clarke said.

Resources on the Adam Walsh Act include materials on the website of the Training Branch of the Office of Defender Services at http://www.fd.org/odstb_adamwalsh.htm, a Practitioner's Guide to the Adam Walsh Act from the American Prosecutors Research Institute at http://www.ojp.usdoj.gov/smart/pdfs/practitioner_guide_awa.pdf, Illinois Voices http://www.ilvoices.com, and Clarke's organization, the Illinois Juvenile Justice Initiative, at http://www.jjustice.org.