A QUICK LOOK AT THE AGENCY TASKED WITH PROMOTING THE ADAM WALSH ACT
The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (aka the “SMART Office”) is hosting a symposium in Chicago on July 17th and 18th. After mentioning this upcoming event on various networks, people have asked what exactly the SMART Office does. That is a good question.
The SMART Office was authorized for creation by the Adam Walsh Act for the primary purpose of promoting the Adam Walsh Act. The SMART Office was founded in December 2006 and appointed Laura Rogers, “a career prosecutor”, as the head of the new bureaucracy. In her memo declaring the SMART Office “Open For Business,” Rogers declared the SMART Office Mission Statement as follows:
“To assure that convicted sex offenders are prohibited from preying on citizens through a system
of appropriate restrictions, regulations and INTERNMENT.” (Emphasis added – Note 1)
The SMART Office has altered that mission statement, perhaps because internment is not the kind of term a government agency should be using. Today, the SMART Office mission statement reads:
“To assist with implementation of the Sex Offender Registration and Notification Act and provide assistance to criminal justice professionals across the entire spectrum of sex offender management activities needed to ensure public safety.” (Note 2)
To put it bluntly, the SMART Office was created as an advertising agency for the AWA. It conducts like an advertising agency and even uses the term “stakeholders” in promoting the symposium.
The SMART Office has not exactly been very effective in promoting the Adam Walsh Act, since only 18 of 50 states, 4 US Territories, and 134 out of about 544 Indian tribes have been deemed substantially compliant. (Note 3)
The SMART Office has not been very smart on the issue of how the Adam Walsh Act operates.
According to a 2013 GAO report of 29 non-SORNA states, the greatest barriers to SORNA compliance was “reconciling compliance between state laws and SORNA (22 of 29 considered it a “major challenge), generating the political will to push for SORNA compliance (21), retroactivity (18), cost (16), juveniles on the registry (16) and applying SORNA’s tier structure (16). (Note 4) Yet, the SMART Office has downplayed the negative effects of the AWA, such as juvenile registration.
The SMART Office downplayed the rigidness of the Adam Walsh Act (by ignorance or embarrassment) on juvenile registration during an exchange between SMART Office Director Laura Rogers and Virginia Representative Bobby Scott during the March 10, 2009 House Subcommittee on Crime, Terrorism, and Homeland Security on ‘‘Sex Offender Registration and Notification Act: Barriers to Timely Compliance by States.’’
“Mr. SCOTT. More than 4 years senior, consensual sex between a 19 1⁄2-year-old and just a 15-year-old would not require registration; is that what you are saying?
Ms. ROGERS. No.
Mr. SCOTT. No, that is not what you are saying, or, yes, that is what you are saying?
Ms. ROGERS. It would not require Tier III registration as a violent sex offender. It may require registration. It may not. If it is charged as a misdemeanor, it may not require registration.
Mr. SCOTT. Once you get on this list, I mean, you are on the list as a sexual offender. What we have heard is that that can be counterproductive because once you are on a publicly accessible registry, your life is pretty much shot.
Ms. ROGERS. But it also may be a charge that is not even included under SORNA and may not require registration. Not every sex offense is a registrable offense under SORNA.
Mr. SCOTT. Right. We said a 191⁄2- and a 15-year-old, consensual sex. Does a 19-year-old have to register in a publicly accessible registry of sex offenders? Half the people in the audience are nodding their heads ‘‘yes.’’
Ms. ROGERS. There are a lot of issues that would have to be examined. It would depend on how it is charged in that particular jurisdiction, if it is covered under SORNA, how the case is resolved. What I am telling you is there is a discussion that it would be as a violent sexual offender, and I just need to clarify this.
Mr. SCOTT. However you have to register yourself, you are on a sexual offender register for an offense where there is a 19 1⁄2-yearold high school senior and a 15-year-old. Add up the months. It is more than 4 years. They get caught. Is that something where someone would have to be registered for at least a decade? Ms. Devillier, do you want to respond?
Ms. DEVILLIER. I would love to, because Louisiana’s statute is just that—carnal knowledge. Some States refer to it as ‘‘statutory rape.’’ Ours is that we have been told by the SMART office, in our response for substantial compliance, that that carnal knowledge statute, which is exactly what you just described, requires Tier II— 25 years of registration without relief.
Mr. SCOTT. Well, I guess there are some of those issues we might have to deal with.” (Note 5)
Roger’s memo advertised the Adam Walsh Act on the notion of adopting “greater uniformity” with registry laws, but that is also untrue, as AWA states are allowed to go far beyond the standards noted in the AWA. Ohio’s registry scheme is a tiered system, while Alabama and Florida require lifetime reporting requirements, yet all three are listed as “substantially compliant.” Interestingly, compliance with the AWA does not mean states have to follow every provision in the AWA to be considered “substantially compliant.” In fact, the “Romeo and Juliet” provision of the AWA does not have to be implemented in order to be considered compliant.
Laura Rogers was eventually replaced by Linda Baldwin, who was Director until 2016; Baldwin’s SMART Office Bio stated Linda’s previous career was “a city planner for the City of New York’s Department of Housing Preservation and Development and Department of City Planning,” receiving a master’s degree in urban planning before going for a law degree. “Prior to joining the New York State Unified Court System, Ms. Baldwin spent eight years in private practice, concentrating in commercial litigation, real estate and zoning law.” Linda Baldwin had little, if any, actual experience in the criminal justice field before taking over duties at the SMART Office.
The SMART Office also publishes a biased online report called the “Sex Offender Management Assessment and Planning Initiative (SOMAPI).” The report includes studies from three controversial researchers—Gene Abel, Robert Prentky, and Sean Ahlmeyer.
The SMART Office cited Abel’s 1987 primary report covering “paraphilias.” Paraphilia means any act considered deviant by societal norms, which should not be confused with pedophilia; it seems Scurich and John failed to notice the difference. Abel’s study had a number of problems –few offenders were voluntary (which would compel false admissions), inclusion of non-criminal paraphilias such as consensual homosexual relations, and Abel lists an estimated number of acts and victims over a lifetime. Abel states the study suggested paraphiliacs, “through coercion or varying degrees of compliance, repeated acts are carried out with the same victims or partners.” Abel provides a Mean and Median estimate of acts and number of victims. The Mean is the sum of all the numbers in the set divided by the amount of numbers in the set. The Median is the middle point of a number set, in which half the numbers are above the median and half are below. Scurich and John cited the highest number possible found in the Abel study, the mean number of estimated number of lifetime acts by those with male victims, listed in the Abel study as 281.7, but the researchers fail to mention the mean number, which is 10.1, far lower than the scarier number. Since half of those in the Abel study committed LESS than 10.1 paraphilic acts while the average (mean) number of acts was assumed to be 281.7, then there must be a small group of people that have grossly inflated the average. (Note 6)
The SOMAPI report also cites the 1997 Prentky study, which made the controversial claim that after 25 years sex offenders’ recidivism is 52% for child molesters and 39% for rapists. However, these numbers were not a true re-offense rate, but a “survival/ failure rate”, i.e., “the estimated probability that child molesters would ‘survive’ in the community without being charged, convicted, or imprisoned for a sexual offense over the 25-year study period.” Prentky himself warned against misusing the stats, primarily because the study involved recidivists who were civilly committed between 1959 and 1985, meaning this was not representative of everyone on the sex offense registry. It is worth noting that even the SMART Office report recognized the limitations of the report, nor does it claim rates presented in the report as an accurate number. (Note 7)
The SOMAPI report also cited Sean Ahlmeyer’s 2000 study which relied on polygraphs and self-reports. Polygraphs are inadmissible in court but utilized as intimidation tools. The Ahlmeyer study consisted of 60 adult male sexual offender (35 inmates and 25 parolees), which concluded that more incidents and victims were reported, but a second test reported low numbers though they concluded 80% were “deceptive.” But it is worth noting that polygraph studies in general have relied on self-reporting by the subjects and been conducted in settings where incentives were offered to subjects for cooperation. (the controversial 2007 Butner study is the most egregious examples of this.) (Note 8)
The SOMAPI report concludes, “While the magnitude of the difference between observed and actual reoffending needs to be better understood, there is universal agreement in the scientific community that the observed recidivism rates of sex offenders are underestimates of actual reoffending.” It cites the 2004 Harris and Hanson study (Note 9) to claim elevated recidivism levels, but the study is a multinational study so the results are not valid for understanding American recidivism. (For example, the age of consent in Canada was raised from 14 to 16 in 2008, while the age of consent in America is between 16 and 18, thus some sexual acts legal in Canada before 2008 were illegal in America.) While the SMART Office study does not cite the Langevin or Prentky rates as true recidivism rates, it uses them as justification for propagating the myth of widespread underreporting.
The SMART Office has also defended a misleading statistic that claims “sex offenders are 4 times more likely to reoffend than non-sex offenders,” a claim cited by Supreme Court Justice Alito in upholding the use of public registries. The SMART Office tried to defend the myth by citing the Hanson multinational study (that mixes rearrests and conviction rates) and appealed to emotions about having a “duty” to protect children. (Note 10)
In debunking this false light statement, the Washington Post stated, “The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.”
“This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago. Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide. It does the public no service when the Supreme Court justices make a misleading characterization like this. We award Three Pinocchios.” (Note 11)
It is for these reasons I express deep concerns about the first SMART Office Symposium in three years. The goal of the SMART Office isn’t to promote an evidence-based system to prevent sexual violence; the goal is to promote a bad piece of legislation that causes harm to registered citizens, their loved ones, and anyone even remotely connected to the registrant. The Symposium “will bring together law enforcement personnel, prosecutors, registry personnel and other community stakeholders from states, territories and Indian Country across the U.S. engaged in registering and monitoring sex offenders, and investigating and prosecuting sex offenses.” That makes them an organization this movement needs to challenge.
1. Laura Rogers, “The SMART Office: Open for Business.” SMART Office Memo. July 2007. Online at https://www.smart.gov/pdfs/register.pdf
4. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT: Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects.” Gov’t Accountability Office. Feb. 2013. Web. <http://www.gao.gov/assets/660/652032.pdf> Appendix III.
5. “Sex Offender Registration and Notification Act: Barriers to Timely Compliance by States.’’ House Subcommittee on Crime, Terrorism, and Homeland Security. 10 March 2009. https://judiciary.house.gov/_files/hearings/printers/111th/111-21_47923.PDF
6. Gene Abel et al., “Self-Reported Sex Crimes of Non-Incarcerated Paraphiliacs,” Journal of Interpersonal Violence (1987), pp. 3-25
7. Roger Przybylski. “Chapter 5: Adult Sex Offender Recidivism.” SOMAPI. Online at https://www.smart.gov/SOMAPI/sec1/ch5_recidivism.html; Prentky, R. A., Knight, R. A., & Lee, A. F. S.” Child sexual molestation: Research issues.” Research Report, National Institute of Justice, Washington, DC. June 1997Online at https://www.ncjrs.gov/pdffiles/163390.pdf
8. Sean Ahlmeyer, Peggy Heil, Bonita McKee, & Kim English. “The Impact of Polygraphy on Admissions of Victims and Offenses in Adult Sexual Offenders.” Sexual Abuse: A Journal of Research and Treatment. April 2000, Volume 12, Issue 2, pp 123–138
9. Hanson, R.K. & Morton-Bourgon, K.. “Predictors of Sexual Recidivism: An Updated Meta-Analysis.” Ottawa, ON: Public Safety and Emergency Preparedness Canada. 2004.
10. “Response from SMART/DOJ, June 23, 2017.” Accessed on 11 June 2019 at https://docs.google.
11. Michelle Ye Hee Lee. “Justice Alito’s misleading claim about sex offender rearrests.” Washington Post. 21 June 2017. Accessed 10 June 2019 at https://www.washingtonpost.com/news/fact-checker/wp/2017/06/21/justice-alitos-misleading-claim-about-sex-offender-rearrests/