New Legislation and the Road Ahead

1. New Legislation and the Road Ahead Tennessee Sex Offender Treatment Board Conference August 2008

2. “You've got to be very careful if you don't know where you are going because you might not get there.” Attributed to Yogi Berra

3. The 800 Pound Gorilla In the Room: The Adam Walsh Act of 2006

4. Some Walsh Act Basics • Requires registration of all sex offenders • Offenders are defined by comparison to federal crimes • Classifies offenders in a 3 tier hierarchy • Prescribes data to be collected • Prescribes frequency of verification • Prescribes notification and registry access requirements

5. Key Compliance Issues • Registration of all sex offenders as defined in federal law • Keeping all sex offenders registered for as long as federal law requires • Collection of all sex offender data required by federal law • Providing notice of and access to registry information

6. “Sex Offense” • A criminal conviction involving a sexual act or sexual contact with another, or • A criminal conviction that is a specified offense against a minor, or • A federal or military sexual offense • Includes delinquency adjudication for juveniles 14 and older • Excludes some instances of “mitigated” statutory rape and any bad faith foreign conviction

7. Grading of Sex Offenders • Tier III • The worst offenders and lesser repeat offenders • Offenses generally include serious abusive sexual contact and kidnapping • Tier II Trafficking offenses, generally; lesser abusive contacts, and repeat “entry level” offenders • Tier I Everyone else: Incest, Indecent Exposure, Posession of Child Porn, etc.

8. Required Duration of Registration Tier III For Life Juvenile offenders may terminate after 25 years with a clean record Tier II 25 years Tier I 15 years, generally Termination available after ten years with clean record

9. Information to be Gathered • A description of the offender; all identities, online and otherwise, and all identifiers • All the places the offender stays, and all the place the offender goes on a regular basis • Vehicle identifiers and descriptions and places kept • Contact information • The text of the law defining the offense • Other criminal history

10. Notification Each new and updated registration must be transmitted to: • The U.S. Attorney General & Appropriate Law Enforcement Agencies • Each school or public housing agency in the area where the offender lives, works, or goes to school • Each jurisdiction where the offender lives, works, or goes to school, or to or from which a change occurs • Any agency responsible for employment background checks pursuant to the National Child Protection Act • Social Service entities responsible for protecting minors in the child welfare system

11. Access • Volunteer organizations serving or having contacts with minors may request notification, as may anyone else, but no more than every five days • The registry data must be readily accessible and the system must permit retrieval of relevant data for each offender, by use of a single query for any given zip code or other geographic radius set by the user

12. The Carrot and Stick Approach • The deadline for compliance with Walsh is July 27, 2009 • The US Attorney General may grant up to two one year extensions • Tennessee will otherwise lose 10% of its Byrne Grant funding for each year the State is found to be non-compliant

13. What’s New in Tennessee At a Glance • More offenses added to SOTB purview • No work-release or community work for incarcerated sex offeners • Photo ID “sex offender” designation • More offenses added to registry • Registration fees increased • More information required for registry • New restrictions on sex offenders • More scrutiny of sex offenders • Revised provisions for termination

14. Sex Offender Treatment For More Sex Offenders • Sexual Battery by an Authority Figure • Solicitation of a Minor • Exploitation of a Minor by Electronic Means • Aggravated Rape of a Child • Statutory Rape by an Authority Figure • Sexual Exploitation of a Minor, all degrees

15. No Work-Release For Sex Offenders • “Work-Release” includes a prisoner’s assignment to a work crew that is permitted to go into the community. • No Court of Law can order it as part of sentence for a sex offender • No jail or correctional institution may offer community work as part of a program for a sex offender

16. “Sex Offender” Photo ID • When a sex offender gets a driver license or official photo ID, it will include a designation of sex offender status • If the offender doesn’t qualify for official ID, Safety will provide an alternative • The offender must carry the ID at all times. Violation is an E felony, fine only • Nothing requires the offender to get an ID in the first place, however

17. New Offenses for Registry • “Sexual Offense” now includes • Kidnapping • Solicitation of a Minor • “Violent Sexual Offense” now includes • Aggravated Rape of a Child • Criminal Responsibility for the Conduct of Another with respect to a violent sexual offense

18. Registration Fee Increase • The fee is increased to $150 • The registration agency retains $100 of the fee • TBI receives $50 for registry costs

19. New Registration Information • Starting July 1, 2008: • “Complete name and all aliases” specifically includes married names and otherwise • Photocopy of any driver license or State or Federal ID • Verification of DNA Sample • A complete listing of the offenders online identities

20. More New Registration Information • Starting January 1, 2009 • The text of the laws defining the criminal offense for which the offender is registered • A physical description of the offender, including height, weight, eye color, hair color, and scars, marks or tattoos

21. New Restrictions: Schools Without a legitimate business or family purpose, the offender shall not • Be on school premises when minors are present • Hang around within 500 feet of school premises • Be aboard any school bus or other school conveyance

22. New Restrictions: Leisure and Occupation • No dressing up/pretending to be something you are not, to entice minors • No occupation, paid or unpaid, that is likely to invite direct and unsupervised contact with minors • No operating any vehicle for the purpose of attracting minors, ice cream trucks and emergency vehicles in particular

23. More Scrutiny • Offenders must report any change in registration information within 48 hours of the change • Within 48 hours of release from probation or parole, an offender must report to the appropriate law enforcement agency which will become that offender’s registration agency • Within three days of any change in online identity or email address, the offender must report such change to the registration agency • Homeless offenders must report monthly to the registration agency. • TBI may furnish offenders’ online profiles to online service providers for prescreening or accounts review • As a condition of receipt, the provider must agree to notify TBI “forthwith” whenever the profile matches a user on the provider’s system

24. New Termination Provisions • “Non-violent” sex offenders who were not required to register before 8-1-07 may request termination after five years • If a court of competent jurisdiction orders expunction of the offender’s records, and if the offense is eligible for expunction, the offender shall be removed from the SOR • If a request for termination is denied for reason of substantial non-compliance, the offender may ask again after five years

25. Walsh Compliance Issues in Tennessee • Juvenile Offender Registration • Availability of Termination for certain “Non-Violent” offenders, sooner than Walsh Act would permit • Comprehensive Registration Data

26. What’s Ahead? • Will we register juveniles, or will Congress back off? • Will we change our scheme of classifying offenders for registration purposes? • Who will prescribe what data we collect? • Will it be necessary to ask for an extension, and would we get one?