Some States Refuse to Implement SORNA, Lose Federal Grants

As of August 2014, twenty-eight states were still struggling with the costs and bureaucratic nuisance of implementing the Sex Offender Registration and Notification Act (SORNA) – also known as the Adam Walsh Act – eight years after it was passed by Congress. Another 17 states were in compliance and five have flatly refused, mostly for political or fiscal reasons.

But only one state – Nebraska – has stated a principled opposition to SORNA’s lifetime registry requirement for juveniles. State Senator Amanda McGill, a member of the Nebraska legislature’s Judiciary Committee, said that SORNA as currently written could force people onto the registry who don’t belong there.

“We may be putting resources into people that don’t need it,” she said, “and possibly ‘scarlet-lettering’ them.”

SORNA, which had a soft deadline of July 2011 for implementation, requires that states adopt certain provisions for their sex offender registries or face significant cuts in federal Byrne Justice Assistance Grants (JAG), which are used to fund local courts, crime labs, prisons and jails, and other law enforcement programs. Of the states that missed the deadline, most agreed they would apply to use JAG money to comply with SORNA in order to continue receiving the federal funds. [See: PLN, July 2010, p.24].

But five states – Arizona, Arkansas, California, Texas and Nebraska – have neither complied with SORNA nor applied to use JAG funds to come into compliance, thereby electing to forfeit 10% of their JAG funding. [See, e.g.: PLN, Feb. 2012, p.20].

“We’re hoping that in the future, some of those five will indeed apply,” said Linda Baldwin, director of the U.S. Department of Justice’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking. Not applying to use the JAG funds for compliance is “not necessarily a refusal,” she added, noting that those states will have another chance to apply to use JAG funds for SORNA compliance.

Arizona, which is making a states’ rights argument against implementing SORNA – an unfunded federal mandate – might change its mind depending on the future political landscape. California and Texas are citing economic reasons for their refusal to comply.

Nebraska, meanwhile, attempted to comply with SORNA in 2010 by changing its sex offender registry to categorize offenders by their convictions rather than by the individualized risk assessments the state had more thoughtfully used previously. The change not only forced Nebraska – and other states attempting to comply – to enact changes in its criminal code, but also forced many offenders who had already served their sentences to be placed on sex offender registries or increased the length of time they were required to register.

“I hadn’t been in any kind of trouble since completing probation,” said Daniel Konecky, a now lifetime-registered sex offender, when he testified at a hearing before Nebraska’s Judiciary Committee in 2011. Konecky pleaded no contest to second-degree sexual assault of a minor after he was accused of having consensual sex with a 15-year-old girl when he was 23. His public defender assured Konecky that he faced only two or three years on probation and wouldn’t be listed on the public sex offender registry.

“I feel like I’m being punished again for the rest of my life,” Konecky said, “after serving my punishment and proving my worth by living righteously, being a good father and husband, and staying out of trouble.”

The fiscal costs of SORNA compliance – such as expanding a state’s sex offender registry and adding extra law enforcement officers for the multiple check-ins each year required of offenders – were too much for Texas and California.

Texas estimated that its cost to implement SORNA would be at least $38 million, while according to the National Conference of State Legislatures, the cost of losing the JAG funds would be just $2.2 million. Tina Walker, chief of media relations for California’s Emergency Management Agency, said compliance could exceed $30 million and would result in “a less than robust sex offender registration process for the state.” California would lose an estimated $3.2 million in JAG funding.

Arizona’s attitude toward SORNA compliance is based largely on its longstanding fixation on federalism. Not only do Arizona officials feel the state’s sex offender registry does a better job of protecting the public than the federal government would, but – following Governor Jan Brewer’s lead – the state finds itself increasingly opposed to federal initiatives simply on the grounds of states’ rights.

“They agree with the importance of sharing information across states but don’t necessarily think all aspects of SORNA’s approach to registration are better than what they already have in place,” said Elizabeth Pyke, director of government affairs at the National Criminal Justice Association. “So if implementing SORNA will make them overturn long-held policies, some states may prefer sticking with their own registry systems.”

The resistance among the hold-out states forced a proposed revision to SORNA. When the law was considered for reauthorization by Congress in early 2012, legislators modified the penalty provisions for JAG funding, and the law would no longer require juveniles convicted of sex offenses to have to register for life. Further, SORNA would allocate $3 million in state funding for sex offender treatment for juvenile offenders. Regardless, the proposed reauthorization bill failed to pass.

Sources: www.pewstates.org, www.smart.gov, www.ncsl.org

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