The current economic situation is causing many states to face difficult budget choices. Policymakers across the country are realizing that the expense of incarcerating so many people—states spent $52 billion on corrections in FY2008—is reducing resources available for investments in social structures, like education and healthcare. As a result, many states are developing new and innovative ways to trim their prison populations, reduce the likelihood that a released person will commit a new offense and lower revocation rates so fewer people return to prison once released.
The following sex offender policy statements were adopted by the Board of Directors of the National Association of Criminal Defense Lawyers by unanimous vote at the Association’s Midwinter Meeting in San Diego, CA, February 24, 2007:
I. NACDL opposes the death penalty as a sanction for sex offenders.
II. NACDL opposes mandatory minimum sentences.
II. NACDL opposes sex offender registration and public notification laws. If employed at all, sex offender registries should classify sex offenders on the basis of risk, with full due process of law. Public/community notification provisions should be reserved for “High Risk” sex offenders.
IV. NACDL opposes civil commitment laws because they punish offenders who have paid their debt to society. If employed at all, sex offender civil commitment statutes should provide a full panoply of due process rights including the right to a jury trial, the right to confront adverse witnesses, the right to present evidence, rules of evidence, a high burden of proof on the government and a process for review and discharge which levels the burden squarely on the government.
V. NACDL opposes residence restrictions because such laws and ordinances do not provide effective community protection and threaten offender stability and reintegration into society.
VI. Sex offender treatment and rehabilitation programs should be adequately funded and available both in our prisons and in the community. Such programs should not include mandatory polygraph examinations and should respect Fifth Amendment rights.
VII. Children are different.
On February 24, 2007, NACDL issued a comprehensive statement on sex offender legislative policy. NACDL opposes sex offender registration and community notification laws but also believes that if such laws are passed they should classify offenders based upon true risk, with full due process of law. Community notification provisions should be reserved for offenders who are at a high risk to re-offend. Unfortunately, with the passage of the Adam Walsh Child Protection and Safety
Act of 2006 (Adam Walsh Act), Congress went in a different direction. The Adam Walsh Act includes the Sex Offender Registration and Notification Act (SORNA). SORNA sets forth a federal supervisory program that, if implemented by the states, is likely to significantly de-stabilize offenders, cause substantial confusion over registration and notification requirements and eventually make our communities less safe.
On March 5, 2003, the United States Supreme Court, in Smith v. Doe1 (“Smith”) and Connecticut Department of Public Safety v. Doe2 (“DPS”) held that the Alaska3 and Connecticut4 sex offender registry and notification statutes were constitutional. The two state statutes were relatively modest with small penalties for failing to register and subjected to a limited review by the Court.5 At the time of the two Court decisions all fifty states had enacted sex offender registry and notification statutes (“Megan’s Laws”6).7 The Supreme Court opinions seemingly sanctified the laws of the states and ensured that registries would remain a permanent fixture of America’s sex offender policy.