Posting # 49 –RSOL of NH summary of March 10 SORNA Hearing

By:  NH RSOL Organizer
Date:  03/12/2009

I arrived in DC at approximately 11:00am. I located the correct building and began my search there. I had lunch in the Rayburn building cafeteria and decided to personally visit as many subcommittee members as I could and hand over my testimony to their staff directly, with a request that this be placed near the top of their file for the hearing. I advised that it was personal, the legislation affected my family deeply and that I would appreciate the opportunity to meet with the Congressperson before the hearing (if possible) and if not, I advised that I would be attending the meeting and hoped to speak with the Congressperson after. The staff were mostly helpful… Some Congressmen had their main doors closed, so a quick knock and a turn of the knob were necessary. Others had their doors wide open and I just walked right in like I belonged there. The Rayburn building connect by underground passage to the other 2 Capitol buildings Longworth and Cannon. It's best to use the underground route so that you do not need to go through security again and again. I contacted Mary from RSOL-VA about 20 minutes before the meeting was to start and made my way over to the hearing room. After taking a seat next to Mary (in the 2nd row!) I approached Mark Lunsford. I indicated that my husband was on the registry for life for a teenage consensual offense, much like his son would have faced if it were not for Mark's intervention. Mark indicated that his son served 10 days, but did still plea to a felony. He said that he advised OH prosecutors that he would expose every sex offense case where they gave a lenient sentence to a true sex offender if they treated his son like one of those predators. And so, his son avoided registration. Let's be clear though, this is a good thing. No young man should be registering for situations such as these, and it could be argued that no person should be registered for any consensual/non-forcible offense that is not indicative of coercive or predatory behavior toward teens. I told him that I did not begrudge him his advocacy, that I was not sure I could live a life without any of my children if they had met the fate of Jessica. He said he understood the teenage issue and that he 'did not believe those Romeo and Juliet type situations should be registered'. I handed him a copy of my personal testimony, which included my contact numbers and asked him to call me after the hearing sometime so that we could talk with less time constraints. He said that he would and I hope he does. We were interrupted at this point and I walked away to wait for the hearing to start. The meeting started late, at approx 2:20pm. I took 16 pages of scrawled notes, and the live feed of the hearing probably does better justice to what actually was said than my hastily scrawled notes. At the start of the hearing, Congressmen Scott, Smith, Gumhert and Poe were in attendance, as well as Commissioner Pierluisi. 2 Staff Attorney's were present, as well as several aides. The witness table was assembled, with Laura Rodgers (SMART office) in the first slot, Emma Devillier, Assistant Attorney General of Louisiana in the 2nd slot, Madeline Carter from CSOM in the 3rd position, Ernie Allen in from Missing Kids in the 4th position, Mark Lunsford 5th, Det Shilling from Seattle PD in the 6th position, and Amy Borror of the Ohio Public Defender's office speaking last. The members of the subcommittee were allowed their input first and then the witnesses followed. Because there is a live feed of the hearing, I will not enter all of my notes, but will try to hit the highlights:
* No State to date is certified as SORNA compliant. Out of 50, 38 have submitted their changes for review to the SMART office. 23 have requested and received 1 year extensions (according to Ernie Allen).
* The Act was not properly funded at it's outset.… 2008 Byrne grant allotments totaled 374 million for all the States, and in 2009 that amount has increased to 2.225 billion, however even with the increase, no State is compliant.
* The SMART office issued the guidelines for SORNA/AWA in June of 2008, almost 2 years after the law passed and within only 1 year to go before compliance was expected (July 2009). The 2 year delay was caused by the SMART office not having any staff/funding for staff and was comprised of 1 person (yes 1) who was tasked with completing the guidelines. That person was Laura Rodgers.
* Asst AG from Louisiana indicated her major concerns with the law (which are reflective of the concerns in other States) are as follows:
1) Registration ASSUMES conviction. If she cannot convict someone, they will not register, even if they are a threat. This becomes a problem when defendants will not settle the case with a plea bargain because of mandatory 25yr to life registration required by AWA on a public list. It is a problem for the child victim in that they would need to testify in court and potentially relive the trauma of their abuse. AWA allows no flexibility in registration for such cases because it is based solely on the age of the child victim and not the underlying facts of the case.
2) The Adam Walsh Act defines compliance as substantial. However the guidelines indicate that States must be in strict or actual compliance. This means that there is no flexibility to do what is right in the eyes of the State based on the individual case and may not impose less registration than what AWA calls for. States can only exceed the minimums outlined in the Act, not fall short, even where appropriate.
3) In LA, retroactive application of the AWA is a problem. The guidelines indicate that anyone not currently registered after the first sweep under Wetterling could be subject to registration if and when they enter the criminal justice system again for any new crime (even if it is not a sex offense) if they had a past sex offense conviction on record. LA had a practice up until 1999 that allowed an offender in a sex case to waive registration as part of a plea and those offenders would have their plea agreements violated directly. The Courts in LA have already ruled that the defendants in such situations could vacate their original pleas if this happened, which could cause huge problems in prosecuting the original cases again.
Her best comments regarding the AWA were: "The Devil is in the details", "SORNA did not get it right".
* There was a promising amount of discussion on risk assessment, evidence based practice and the fact that registration does NOT prevent sexual abuse. Most notably Ernie Allen made the mistake of saying "Registration is not about prevention, it's about regulation". I call this a mistake because this is where Ernie Allen exposed, in my opinion, the futility and emptiness of the registry. Such an intrusion by the government into the lives of former offenders is only justified if there is an overwhelming and justifiable public safety concern… and in the case of registration laws that concern was mounted under the premise that sex offenders were habitual recidivists that must be controlled and managed in order to PREVENT further victimization… alas Ernie Allen has called a spade a spade without realizing it.
* Det Shilling stressed that education was KEY to prevention, that risk assessment and allocating law enforcement resources to the highest risk offenders was essential. He quoted a study from 2004 from Harris and Hanson that followed released sex offenders for 15 years and noted that 73% of offenders were  NOT convicted of another sex offense after those 15 years. He also raised serious concerns about the reclassification under SORNA/AWA that will elevate many more offenses to a tier 3 status, causing erroneous panic in the public.
*Amy Borror put facts to Det Shillings statement on the reclassification of offenders by advising that prior to OH's version of AWA, only 18% of the registered offenders were considered high risk. But after SB10 (OH's AWA) a total of 54% of registered offenders would be redesignated as tier 3 with the public assumption that they were all high risk.
It should also be noted that 2 other Congressmen/women entered during the hearing Congresswoman Jackson-Lee of TX (there for perhaps 30-40 min at most) and Congressman Rooney attended briefly. Congressman Smith was in attendance (not as part of the subcommittee members) but only to insert his testimony/opinion for the record. He left not long after the hearing started. Commissioner Pierluisi attended a good part of the hearing, but left and returned several times until he finally left around 4pm for good. The hearing concluded at approx 4:48pm.
More importantly for me, what was often lost in the discussion was that SORNA/AWA is an empty law altogether unless the States feed information into the national registry. So whatever the State decides is criminal and convicts is potentially a registerable offense. If a State registers an offense that is not required to be registered by SORNA, or registers an offense longer than the required amount of time under SORNA, then SORNA still applies insofar as an offender being listed on the national registry and being subject to the requirements of the Act because the State has listed that person under the umbrella of SORNA. Many of the questions asked to Laura Rodgers of the SMART office were to clarify if certain realties that you and I know to be true were indeed registerable under SORNA. Her response to many of these questions was that they were not required to be registered under SORNA. This may be true under SORNA, but SORNA sweeps up all State registration laws and practice into the national list and many who should be registered under SORNA at all are still being required to register by the State, which again, I REPEAT, makes SORNA apply to them. Regardless of what Laura Rodgers knows SORNA applies to as a matter of Federal law, she forgets that it applies to anyone registered by the State and that SORNA would be empty if not for the State registries, thus making SORNA apply far more broadly than it was written or intended.
To sum the above paragraph up: Registration under SORNA/AWA hinges on State conviction and registration laws, whatever they may be.
* The entire board was asked if they thought consensual type offenses should be included on the registry to which everyone answered "NO". This brought tears to my eyes…. So many young lives ruined by these laws and finally some acknowledgement of that plight. Congressman Poe indicated that Congress needed evaluate this dilemma and also stated that a 4 year difference with regard to consensual offenses was completely arbitrary. (this we've known for quite some time… )
 The re-occuring themes throughout were some of the old standby's, namely protect the children at all costs, that sex offenders are re-offending at high rates, but more importantly some knew themes emerged as a whole. That evidenced based practices are best, that re-offense rates are lower than that of other crimes (however one could argue that the impact of sex abuse mitigates lowered reoffense rates), that registration does not prevent sex crime, that there are deep flaws that go beyond funding in the text and guidelines of the AWA, that not all registered offenders are high risk or the same.
 After the meeting adjourned, Mary and I hit the floor to speak with the subcommittee members still remaining (Scott, Gumhert, & Poe). I had a wonderful conversation with both Poe and Gumhert regarding teenage offenses and the plight of my husband and so many others like him and they both asked me to contact them for follow up (and I will). I talked with Nicole Pittman and Emma Devillier. Nicole gave me her business card and I gave her my testimony and contact information. I certainly will keep her card handy and try to network with her to find out what is next at the Federal level and how we can become better involved. Anything I learn will be passed on to the the group for participation. I spoke with Congressman Scott who has an impressive understanding of the issues and the shortcomings of registration law as a whole, the unintended consequences and the climate in which we must deal with these issues politically. I approached Mark Lunsford again about a comment I heard him make during his testimony that sounded as if he suggested that it was ok for the wrong person to register if it meant saving the life of child. I wanted him to know that it was most certainly NOT ok, that my husband had lost his dignity and self worth because of wrongful registration and that it would NEVER be ok to register someone as a 'small sacrifice' for the greater good of potentially saving one child. He indicated that he did not believe that he had said something to that effect and that he did not mean for that to be my understanding. I know that others around me heard the same thing… Mary and I offered our services to him to the extent that we were committed to protecting children from sexual abuse, but that we simultaneously would be fighting to remove our loved ones from wrongful registration. My parting words to him were in reference to his tie, faces of his daughter all over the tie he was wearing and I said simply "She's beautiful". And she is… that little girl did not deserve to die and this man does not deserve his pain any more than we deserve our pain. I asked him again to call me as there are many things I'd like to talk to him about, but this was not the time or place. Time will tell.
Just before leaving, I grabbed a spare copy of John Walsh's written testimony for the record. I will scan this and send it, most likely in a separate email. I can sum it up: it didn’t say more than any of us expected. We must protect the children, the Act must be funded.
What I've learned from my first federal legislative experience:
While things are more formal, they run mostly the same. The major difference between the States and the Feds is that everyone on Capitol Hill has staffers and these people run the show. You will very rarely catch a Congressman without a pre-set appointment either on the phone or in the office. Mary had a fantastic idea and had a notebook with everyone's picture and name pasted into it that she could use to spot the right people. It is worth it's weight in gold. Even though they are required, they don't always wear their identification. Also don't let staffers discourage you with questions such as "are you a constituent or have you talked to your own Congressman?"  Politely but firmly tell them that your Congressmen are not part of the Judiciary committee and thus do not understand the issues involved as well as Congressman (fill in the name) .
We must all begin to send our personal injustices in a letter, no more than a page and half tops, to each member of the Judiciary committees in the House and Senate. These people need to hear about our pain, about the collateral damage and the unintended consequences of these laws. They, like anyone, love a good story. SO GIVE THEM YOUR STORIES! They used Mike's age and his partner's age in their line of questioning during the hearing.. 19 and 15… THEY READ my testimony. There does not have to be a bill in congress for you to do this…. Send your story to them because they are on these committees and you want them to be aware of the issues you face. The best letters are direct and to the point. Follow this format .. It's the one I use with the most success. Tell them why you are writing/who you are. Tell them the problem you are facing and close by telling them what you want them to do to fix it. We must all encourage each other and our state members to do this immediately. State members may want to send letters as individuals, State contacts may want to send a letter acknowledging that they have started a State group for support and advocacy to address the issues, collateral damage and pain that families of RSO's and RSO's themselves are facing.
To the best of our ability, we must try to follow federal legislation or any hearings that may be called regarding sex offender issues in order to show up/be a presence (whether in person or through testimony for the record). There is a point of contact for each committee/subcommittee who is responsible for collecting and submitting written testimony to the public record, so we'll have to identify this person each time and make sure that we get our voices on the official record of the hearing. Best practice is to send a statement letter that addresses the needs of the hearing, the problems/concerns and personal impact each time there is legislation, follow up with phone brief phone calls to staff and email your testimony to Reps/Senators directly, then send the person in charge of admitting testimony for the written record a copy of your testimony as well. This way, with any luck, the staffers told the Rep that there were calls, the Rep received your testimony personally in email (if there is enough time, you can try snail mail as well) AND most importantly your testimony goes into the record itself instead of getting lost on a staffers sticky note or deleted in a Rep's email box.
I think this sums it up…… if I've missed anything or anyone has questions, please feel free to ask. I'll try to respond in a timely manner, but I'm quite a bit behind myself this week with everything going on.
Laurie