State Opts Out of Compliance With Adam Walsh Act

10-11-2011 New York:

The Cuomo administration has opted out of the Adam Walsh Child Protection and Safety Act—a federal law designed to toughen and standardize sex offender registration practices—concluding that it would cost more than it is worth while undermining the state's traditional protections for teenage offenders.

In a recent letter to the U.S. Department of Justice, the state said it would not embrace a law it was supposed to adopt more than two years ago.

"[W]e are convinced that the statutory scheme set out by our legislature is in the best interests of New York State and the best way to protect our citizens," Risa S. Sugarman, deputy commissioner of the Division of Criminal Justice Services and director of the state's Office of Sex Offender Management, wrote in an Aug. 23 letter. "New York believes that our present laws and risk assessment method provide our citizens with effective protection against sexual predators."

Since the act, also known as the Sex Offender Registration and Notification Act, was signed by President George W. Bush in July 2006, three New York governors have debated whether to comply with a statute that would require the state to substantially alter the way it registers sex offenders.

Twice, New York requested and received more time. But after the federal government made clear in late July that it would not offer additional extensions, New York begged off.

The act creates a national sex offender registry and directs every state and territory to post information on all sex offenders on a public website. It also establishes a rating system defined by the nature of the offense, rather than the risk of re-offense.

Implementation has proven problematic throughout the country, and only 15 states have complied with a law, according to the Justice Department's Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART).

Several states have cited conflicts between the act and their own laws and policies, and have been working with the federal government to achieve what the SMART office deems "substantial compliance." States that do not comply face the loss of 10 percent of the federal assistance received under the Edward Byrne Memorial Justice Assistance Grant (JAG), a major source of funding for anti-crime initiatives.

The Cuomo administration acknowledges that New York will not comply with the Adam Walsh law because of a deep chasm between the federal standards and New York laws, and long-standing public policy determinations.

For instance, New York does not publicly post information on offenders who are deemed at low risk of recidivism, many of them convicted of an age-of-consent crime. And its three-level rating system classifies offenders by low-, medium- and high-risk based not only on the crime of conviction, but myriad other factors, such as the use of violence, whether the offender is a predator or predicate, and whether the crime involved sexual violence. That would have to change if New York adopted the Adam Walsh Act.

But the state's main objection was apparently the federal requirement to place juveniles on the public sex offender registry, a mandate "in direct conflict [with this state's] public policy," Ms. Sugarman said in her letter.

New York does not register youthful offenders (those between the ages of 16 and 18 whose conviction to a serious crime is vacated and replaced with a non-criminal adjudication) or juvenile delinquents (individuals between the ages of 7 and 16 whose case is adjudicated in Family Court). It does register juvenile offenders, who are between the ages of 13 and 15 and, in contrast to youthful offenders, were held criminally liable for a sexually motivated felony.

"While New York law provides that the most dangerous juvenile offenders may be prosecuted in adult courts and, if convicted, they would be placed on the Sex Offender Registry, our laws and public policy also acknowledges that other than those most dangerous offenders, children who commit crimes should avoid the ramifications of adult convictions," Ms. Sugarman said.

The state also expressed concern over the "fiscal impact of implementation…with no improvement in public safety."

Ms. Sugarman suggested that the cost of requiring in-person reporting of all levels of sex offenders (in New York, low- and medium- risk offenders verify their address in writing every year and report once every three years to have a new picture taken; high risk offenders must report annually), the need to establish separate reporting facilities for juveniles and the "likelihood of litigation to defend the implementation of the Act" would add up to more than the $1.6 million the state could lose in Byrne aid.

Janine Kava, deputy communications director at the Division of Criminal Justice Services, said the state will attempt to recover the federal aid.

Ms. Kava said the state has been notified that it can apply to get the funds back for specific projects, such as upgrading information technology infrastructure, improving data collection and information sharing, enhancing community notification procedures and other activities that further the overall mission of the Adam Walsh Act, and will "pursue this option."

In the meantime, Ms. Sugarman said in her letter, New York "will continue to cooperate with the federal government and all other states in the effort to protect all victims against sexual predators by preventing the attacks against child and adult victims and bringing sexual predators to justice."

There was no immediate reaction from the Justice Department. ..Source.. by John Caher, NY Law Journal