Tracking Sex Offenders: IL Doesn't Fully Comply with Federal Rules on Registering Sex Offenders

Feb 1, 2013

In 2005, Joseph Duncan tied up Brenda Groene, her 13-year-old son, Slade Groene, and her husband, Mark McKenzie, and beat them to death with a hammer in the family’s home in Idaho. Duncan kidnapped Brenda’s 8-year-old daughter, Shasta Groene, and 9-year-old son, Dylan Groene. He took them to remote campgrounds in Montana and over several weeks, he sexually assaulted both children and eventually murdered Dylan. Shasta survived the ordeal after a waitress at an Idaho Denny’s restaurant recognized her and called the police. 

Duncan had a history of committing sexual abuse that could be traced back to his teens. At 16, he told therapists that he had raped an estimated 13 younger boys, some at gunpoint. At the time of the murders, he had skipped bail in Minnesota, where he had been arrested on charges of molesting a boy, and was being sought by North Dakota police for failing to check in with his probation officer. After his arrest for the Idaho crimes, Duncan confessed to the murders of three more children in California and Washington state. 

Adam Walsh
Credit WUIS/Illinois Issues

John Walsh, host of America’s Most Wanted, calls Duncan the “poster boy” for a national law that seeks to allow states to more easily share information about sex offenders. The Adam Walsh Act — named for Walsh’s son, who was kidnapped and murdered in 1981 — sets a national standard for states’ sex offender registries. It was signed into law by then-President George W. Bush in 2006, but more than 30 states — including Illinois — are not compliant with the federal standards. 

The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, passed in 1994, required states to track sex offenders for 10 years or life, depending on the offense, after they are released from prison. The law is named after a boy who was kidnapped in 1989 and never found.

In the mid-1990s, every state enacted its own version of Megan’s Law, which allowed for sharing information on sex offenders with the public. In 1996, Congress passed a federal Megan’s Law. That law is named for Megan Kanka, who was raped and murdered by a neighbor and twice-convicted sex offender. Megan’s parents said they would never have allowed her to play in the neighborhood unsupervised if they had known that a convicted pedophile lived across the street from their home. 

Because every state created its own version of a registry, requirements vary widely from state to state. The crimes that trigger registration requirements differ. In some states, failing to register is a felony that sends offenders back to jail, but in others it is not. Linda Baldwin, director of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART), the federal entity tasked with assisting states with implementation of the act, says that before the Adam Walsh Act, “there were no efficient and reliable ways that jurisdictions could let each other know when offenders were moving.” The National Center for Missing and Exploited Children estimates that as many as 100,000 sex offenders have slipped through the cracks.

The federal Sex Offender Registration and Notification Act (SORNA), which is a part of the Adam Walsh Act, defines who should be on registries and for how long. It sets out a three-tiered system, and offenders are placed into a tier based on the offense committed. Tier I offenders must register annually in person for 15 years. Tier II offenders must register for 25 years and check in with law enforcement in person every six months. Offenders in Tier III must register for life and are required to check in every three months.

SORNA also lays out standards for the information law enforcement is required to obtain from sex offenders, including details about where they live, work and go to school, vehicles that they drive often and their online activity, such as their usernames on social media. The law also requires offenders to provide a DNA sample, finger and palm prints and a current photo so the public can identify them. By streamlining the state registries, the act seeks to facilitate real-time sharing of information among law enforcement agencies across the country and a more reliable resource for public information. 

Megan Kanka
Credit WUIS/Illinois Issues

“It became clear that there were gaps in the state registries,” says Carolyn Atwell-Davis, vice president for policy and government affairs for the Center for Missing and Exploited Children. “It became apparent to Congress that children in different states were being protected at different levels.”

Atwell-Davis says sex offenders are aware of states that have lax registration laws, and they take advantage of those loopholes. “What we were hearing from law enforcement was that sex offenders were forum shopping.”

While many would agree that keeping track of sexual predators across the country and providing law enforcement information is a laudable goal, the act has a long list of detractors, and some states have simply opted not to implement it. 

States had until July 27, 2011, to meet the requirements of the Adam Walsh Act or lose 10 percent of a federal grant that can be used for a variety of law enforcement and criminal justice costs. Since that deadline, the feds have decided to allow states to hang onto the funding as long as they use the money to continue their work toward compliance. Illinois is among these states.

Five states — Arizona, Arkansas, California, Nebraska and Texas — have opted to lose some federal funding, at least for a year, rather than take steps to comply with the act. The reasons for noncompliance vary from state to state. Some are concerned about the costs of the new registration requirements. For many states, it would mean collecting more information from offenders and more in-person check-ins, both of which would require more staff and technological upgrades. Some states register offenders based on their likelihood to reoffend and do not want to adopt a model that is seen by many advocates in the criminal justice world as a step back.

The SMART office concedes there are three major hurdles to implementation: the tiered registration system that is based solely on type of offense; the way the act deals with juvenile offenders; and the fact that the act applies retroactively. 

Ohio was the first state to adopt the changes in 2007, but its Supreme Court later found the retroactive application of the law to be unconstitutional. Illinois has already adopted a retroactivity provision for its current registry. In fact, Tracie Newton, supervisor of the Illinois State Police’s sex offender registration unit, says that after the passage of the Adam Walsh Act, Illinois was well on its way to being an early adopter. “From the get-go, even back in 2006, Illinois was way ahead of the game. A lot of other states were having issues.”

Offenders who are not on the registry in Illinois because their offenses were committed before the registration requirement must now register if they are convicted of a new felony, even if that crime is not a sex offense. “That new felony conviction will trigger that person to now have to register as a sex offender,” Newton says. She says that, so far, she has not seen any legal challenges surface. “It’s been a year and we haven’t seen any,” she says. “We’re talking about a group of people that don’t get a lot of sympathy. ... You don’t see a lot of lawyers that want to do something pro bono.”

Newton says there is no analysis of how much it would cost Illinois to comply fully with the act. But she says the vast majority of the expense would fall to local law enforcement entities, which would be responsible for handling the increased registry requirements and increased number of in-person visits.

Atwell-Davis notes that sex crimes also have a public cost. The tangible cost of all forms of child abuse, including physical and emotional, is estimated at $7 billion. About half of that estimated cost is for medical and mental health care. 

There are also the lifelong costs to victims, which are harder to quantify. author Barry Lopez told NPR. “You don’t come back from molestation the way you come back from, say, I don’t know, surgery. You’re damaged for the rest of your life, and for the rest of your life you must find some way to cope with what happened. It’s like somebody lit your face on fire, and in the wake of that, you’ve got to look in the mirror and find another identity. Something is taken from you that leaves an empty place. And nothing — nothing — will ever fill that empty place. It’s gone forever,” Lopez says. Lopez was sexually abused as a child by a family friend and recently wrote an essay for Harper’s Magazine recounting his experience. 

Juveniles who commit violent offenses are required to register under SORNA, and Baldwin says this provision is a difficult sell in many states that do not currently require juvenile registration. Illinois has been registering some juveniles since 1999.

“Honestly, in Illinois, we register everybody. If you have any kind of sex crime [conviction], you are going to be registering,” Newton says. Information about juveniles on the registry is not available to the public. Juvenile justice advocates say that registering juvenile offenders, who have not been tried and convicted as adults, violates the spirit of the juvenile justice system, which is geared toward rehabilitation. “Youth that commit sex offenses are extremely unlikely to commit subsequent sex offenses,” says Sarah Bryer, director of the Washington, D.C.-based National Juvenile Justice Network. “It merely serves to put a lot of requirements on young people’s lives and potentially damage them for no public safety benefit.”

Perhaps the biggest roadblock to implementing the Adam Walsh Act in Illinois is the need to pass legislation to revamp the state’s registry system. Currently, offenders must register for 10 years or the rest of their lives, depending on their crimes. Under the new framework, some in Illinois would see their time on the registry extended by five or 15 years. Some might go from 10 years on the registry to having to check in every three months for the rest of their lives. Legislation that would bring Illinois in line with the federal registration was introduced during the last two legislative sessions but did not find the support needed to pass. “It’s so tough when you start making some major changes to something that affects so many people’s lives,” Newton said. 

Alton Democratic Sen. William Haine, who sponsored the bill last session, says he plans to introduce it again in the new General Assembly. “In my opinion, it’s not that dramatic. It seems to me that what the citizens want, they want people to be registered and be monitored because of the recidivism rate.”

But advocates and even some members of law enforcement take issue with the concept of an offense-based registry and instead argue for registration policies based on offenders’ likelihood to commit another sex crime. “The problem with the registry in general for adults and for juveniles under the Adam Walsh Act is ... it’s based on offense and not on risk. ... It’s sort of an easy way to try to get everyone’s data to line up. But it doesn’t make sense in terms of public safety,” Bryer says. 

Those advocates say public policy regarding sex offenders is often driven by the sensationalized depictions of the most extreme cases, such as the Duncan murders, along with public outrage and a misunderstanding of the facts. Those who favor stricter penalties often cite high recidivism rates without noting that they vary widely across types of offenders and often include rates for offenses other than sex crimes. A preoccupation among the media, policy makers and the public with the story about the “psychopathic stranger” focuses on the least common scenario. The majority of victims in both child and adult sexual assault cases actually are victimized by someone they know: often a friend, family member or partner. 

But Atwell-Davis says such advocates miss the point. The purpose of the registration, she says, is not to “prevent re-offense. ... The goal of the legislation is to have a uniform system of information for law enforcement and the public so that they can take reasonable steps to protect children in their communities.”

Bryer says that if lawmakers continue to add offenses to the registry and increase the amount of time when offenders must register, the numbers could swell to a point that reduces the usefulness of the information to law enforcement. She uses the example of police checking the registry for a neighborhood after a child is reported missing and wasting time investigating people who are unlikely to be involved instead of offenders who would be more likely candidates for committing another sex crime. “Now you have three dozen people on your registry. Where do you even start?” 

Jacob Wetterling
Credit WUIS/Illinois Issues

Haine is skeptical about risk-based monitoring. “It would be ... throwing out the current registration infrastructure and reinventing a risk-based one. And that would be, in my opinion, an unknown, and it would be terribly costly,” he says. Haine says the idea lacks public support. “I don’t think the citizens would go along with it. I really don’t. I don’t think your average citizen would understand the risk-based system.”

Patricia Wetterling — mother of Jacob Wetterling, advocate and founder of the Jacob Wetterling Foundation — says that one concept is often missed in the debate over changes to sex offender laws: the hope that offenders can be rehabilitated. Wetterling says she supports the concept of registry but has concerns about the Adam Walsh Act. She told Richard Wright, associate professor of criminal justice at Bridgewater State University in Massachusetts, in an interview published in his book, Sex Offender Laws: Failed Policies, New Directions: “On an intellectual level, when these guys are released from prison, we want them to succeed. That’s the goal. Then you have no more victims. All of these laws they’ve been passing make sure that they’re not going to succeed. They don’t even have a place to live; they can’t get work. Everybody knows of their horrible crime, and they’ve been vilified. There is too much of a knee-jerk reaction to these horrible crimes.” 

Illinois Issues, February 2013