SORNA's Approaching Deadlines by Dr. Levenson a Guest Blogger at SAJRT

7-21-2011 National:

Dr. Levenson was a Guest Blogger over at "Sexual Abuse: A Journal of Research and Treatment," and had the following to say about SORNA's approaching deadlines.

Here is a guest blog from Florida's Jill Levenson, a public policy researcher and expert. In this piece, Jill discusses a variety of issues associated with evidence-based risk management of sexual offenders--focusing specifically on the SORNA. Please note that the majority of Jill's references are in Sage Journals, which means that ATSA members can access them for free from the Members Only side of http://www.atsa.com/. RJW

With the SORNA deadline approaching next week, only eight states are in substantial compliance with the law. The Sex Offender Registration and Notification Act (SORNA), which is Title 1 of the Adam Walsh Act (AWA), requires states to meet minimum standards in their sexual offender tracking and disclosure procedures.

Why is it that over 80% of states are not complying, especially when facing a 10% loss of federal crime funding each year? Since its inception, certain pieces of SORNA have been quite controversial and, in many cases, "deal-breakers" for states. Aside from the fiscal reality that SORNA will cost more for most states to implement than they would lose through penalties, parts of the law contradict evidence and best practices that some states have spent years refining.

Take, for example, the rigid offense-based tier system that classifies offenders by their statutes of conviction. There is a seemingly intuitive logic to the belief that statute titles, crime degrees, and descriptions accurately portray the offense in question. We all know, however, that in many cases statutory language does a poor job of characterizing the crime—and an even worse job of characterizing the criminal. In other words, SORNA tiers confuse the seriousness of the crime with the risk to reoffend. Although the SORNA guidelines cleverly avoid using the word risk, there is a clear implication, based on the associated longer registration durations and more frequent updates, that the Tier 3 offenders are more dangerous and therefore necessitate closer monitoring for longer periods. As well, "tier enhancements based on recidivism" can be made, allowing an offender with more than one conviction to be upgraded to a Tier 3 based on the repetitive nature of the criminal behavior—again suggesting to the public that higher tier assignments are associated with an increased likelihood of recidivism.

Unfortunately, in most instances, offense definitions are an inadequate means for evaluating risk or determining supervision needs. They overestimate risk for most offenders, and underestimate risk for those who plea-bargained to lesser offenses. Andrew Harris and colleagues (2010) found that applying SORNA criteria in Ohio and Oklahoma greatly skewed the distribution of risk into the highest tier compared to the states' prior classification schemes using risk assessment tools. Naomi Freeman and Jeffrey Sandler (2010) found that SORNA tiers were less effective in identifying sexual recidivists in New York than assessment tools utilizing risk factors statistically associated with recidivism. Many states have spent the past two decades developing and refining evidence-based risk management systems, and although SORNA does not technically require states to abandon the use of those tools, it does require registration and notification decisions to be based on the federal guidelines rather than the state's risk assessment.

And, speaking of longer registration durations (25 years to life), they contradict research indicating that sexual offenders become less likely to reoffend with increased time spent offense-free in the community. According to Static-99 guidelines, an offender's risk declines by half after 5 years, and by half again after 10 years. As well, reoffending declines with age. Right now, 20% of America's sexual offenders are over 56 years of age. Over time, with longer registration durations, we should anticipate an aging sexual offender population of which a greater proportion will pose a lower risk to public safety.

SMART Office staff have claimed that the purpose of SORNA was never to prevent recidivism, but to provide a monitoring tool for law enforcement and to increase public awareness. Indeed, the AWA legislative intent does not mention reduced reoffending as a goal. But, isn't that a little disingenuous? Why the need for enhanced law enforcement monitoring and increased public awareness if not for the hope of preventing future sex crimes and protecting potential victims from the trauma of sexual assault? Do Americans really want to spend tens of millions of dollars on sexual offender notification if it doesn't pay off in terms of protecting communities? Surveys of the American public have found that most citizens support SORN laws because, in fact, they believe them to be effective in reducing sexual recidivism. About a dozen empirical investigations (see summary in Levenson, 2009) have been conducted to date on the effectiveness of SORN laws to reduce recidivism. Most have not shown declines in sex crime rates generally or sexual recidivism specifically that can be attributed to SORN. Interestingly, the two studies that have noted significant effects on recidivism were conducted in Washington and Minnesota—both states with empirically derived risk assessment systems and concordant monitoring and management plans.

Or, consider the requirement that minors adjudicated delinquent in juvenile courts must be registered as sexual offenders. Though the SORNA guidelines conceded to states that public notification was discretionary, even registering juveniles with law enforcement contradicts a century of juvenile justice philosophy in the United States. The labeling of minors, and the subsequent potential obstacles to educational, occupational, and social opportunities, seems counter-intuitive to both juvenile advocates and victim advocates. This component of SORNA has been a noted barrier to implementation for many states.

We've seen the harrowing story of Jaycee Dugard in recent weeks, and all of us wondered how a registered sexual offender could get away with holding someone captive for 18 years. We've heard the scathing reports of parole agent incompetence, and we've used our 20/20 hindsight to shrewdly point out the missed clues. There is no doubt in anyone's mind that Garrido was high risk; he'd had two previous arrests, one resulting in a conviction for the abduction and rape of a woman whom he held hostage until she escaped.

But, perhaps, the real answer to the unfathomable question—How could this happen?? —is simply that Philip Garrido was a needle in a haystack. Philip Garrido is an example of how overzealous SORN laws might actually be counterproductive. As the registered sexual offender population nears three quarters of a million, fiscal and personnel resources are spread thin, law enforcement agents' capacity to target their monitoring toward more dangerous individuals is compromised, and the public's ability to distinguish truly high-risk predators is diluted. As Robin Wilson astutely pointed out in his recent San Francisco public radio interview, cases like Jaycee (and Adam Walsh, Jessica Lunsford, and Megan Kanka) are exceedingly rare, which is why they command so much attention—they shock us. They are statistically improbable events not representative of the vast majority of sexual assault cases and, thus, not the best cases on which to base public policy designed to address a rampant social problem.

Oh, and what about those 100,000 missing sexual offenders discussed repeatedly in AWA legislative hearings and in news reports? The ones who supposedly take advantage of discrepancies in laws to shop around for lax states where they can more easily neglect to register and avoid detection while seeking new child victims? My colleagues and I (Levenson & Harris, 2011) analyzed data downloaded directly from the online registries, along with surveys of registry managers, and we discovered that approximately 4% of the nation's RSOs have addresses that cannot be verified. We estimate the number of noncompliant sexual offenders to be between 25,000 and 30,000—but less than half of them are officially designated by states to have truly absconded. And, incidentally, research conducted in Minnesota, South Carolina, New York, and New Jersey all conclude that failure to register does not typically contribute to the likelihood for sexual recidivism.

Perhaps the apparent lack of state enthusiasm for SORNA will provide an impetus to re-open the dialogue about sexual offender management. SORNA in its current form sacrifices precision for over-inclusion, quality for quantity, efficiency for symbolism. By going back to the drawing board, with input from victim advocates, law enforcement, psychologists, criminal justice practitioners, and academic researchers, Congress has an opportunity to create model legislation that is evidence-based and more likely to achieve the goal of preventing repeat sexual violence.