Sex Offender Management

Legislating Sex Offender Management

Trends in State Legislation 2007 and 2008

Registration Information Expanded 6' 0" Sentencing Issues 5 ' 6 " Juveniles 5 ' 0 " GPS and Electronic Monitoring 4 ' 6 " Work and Volunteering Restrictions 4 ' 0 " Residency Restrictions 3' 6" People in a Position of Trust 3' 0" Civil Commitment 26 Child Custody and Visitation Internet or Electronic Crimes Internet Access Restrictions Victims’ Rights Sexual Dysfunction Drugs Identification Cards and License Plates Death Penalty The Council of State Governments

The Council of State Governments Sharing capitol ideas. Legislating Sex Offender Management: Trends in State Legislation 2007 and 2008

This project is supported by Award No. 2006-WP-BX-K003, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official policies of the U.S. Department of Justice.

The Council of State Governments Sharing capitol ideas.

Registration Information Expanded page 4

Sentencing Issues 6

Juveniles 8

GPS and Electronic Monitoring 10

Work and Volunteering Restrictions 12

Residency Restrictions 14

People in a Position of Trust 16

Civil Commitment 18

Child Custody and Visitation 20

Internet or Electronic Crimes 22

Internet Access Restrictions 24

Victims’ Rights 26

Sexual Dysfunction Drugs 28

Identification Cards and License Plates 30

Death Penalty 32 Legislating Sex Offender Management: Trends in State Legislation 2007 and 2008

Introduction State lawmakers face an arduous task in finding an appropriate balance between a public that wants to feel safe from sex offenders and policy that is effective in managing this controversial class of offenders. Recent public opinion polls indicate sex offender management should be a high priority for lawmakers, with constituents calling for longer sentences and tighter controls for sex offenders as a means of creating safer communities.1 Policymakers across the country continue to seek to identify and implement effective policies and programs that address the myriad issues related to sex offenders and their crimes. Complex issues around sentencing, community supervision and re-entry of sex offenders into society remain critical challenges for state lawmakers. States are also actively working to develop policy to manage the more than 686,515 registered sex offenders across the nation.2 This effort is made more challenging by the July 27, 2006 passage of the Adam Walsh Child Protection and Safety Act by Congress. Title I of the act, commonly known as the Sex Offender Registration and Notification Act or SORNA, seeks to standardize registration and notification requirements across the country, while also providing for greater offender accountability and increased sanctions for noncompliance. States must make numerous changes to their existing sex offender registries and notification requirements to comply with this federal legislation. Complicating matters is the fact that lawmakers must act at a time when high-profile cases involving sex offenders continue to dominate the news. The extensive media coverage of these events understandably shapes the public’s perception of sex offenders, which further affects the policies legislators introduce. The miraculous recoveries of Shawn Hornbeck, kidnapped at age 11 and held for more than four years, and Jaycee Dugard, kidnapped at age 11 and held for 18 years, both sexually molested, as well as the shocking rape and murder of 8-year-old Sandra Cantu by a female Sunday school teacher, further inflamed the public. Questions of “How could this happen?” quickly lead to “How could this have been prevented?” Answering that question is not easy, and state strategies to deal with sex offenders vary greatly. While few would argue against legislative and programmatic efforts to ensure the safety of the public—especially children—from violent sexual crimes, some state leaders have expressed concern that the urgency of efforts to strengthen sex offender management policy is prohibiting lawmakers from fully considering the range of long-term impacts such policies will have. Common myths about sex offenders continue to influence the laws policymakers create. For example, sex offenders are less likely than other criminals to reoffend. Yet many recently enacted state policies presume sex offenders reoffend at a rate much higher than the average criminal offender, that they cannot be rehabilitated, and that they generally perpetrate their crimes against strangers. None of these assumptions is grounded in research. It is in this environment that lawmakers continue to consider and enact legislation related to sex offenders.

1 Mears, D.P., Mancini, C., Gertz, M., and Bratton, J. “Sex crimes, children, and pornography: Public views and public policy,” Crime & Delinquency, 2008. 2 National Center for Missing and Exploited Children, July 2009. Accessed 9/12/09 from http://www.missingkids.com/ missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1545.

Legislating Sex Offender Management | 1 | The Council of State Governments Overview of Legislation In the 2007–2008 legislative biennium, state legislatures considered at least 1,500 bills related to sex offenders; at least 275 of those bills became law. Six states—Arkansas, Montana, North Dakota, Oregon, Nevada and Texas—did not hold a regular legislative session in 2008. The passage of the Adam Walsh Child Protection and Safety Act heavily influenced sex offender legislation considered during this time period. More than 450 bills were directly influenced by its requirements and July 2009 deadline for compliance. This deadline has since been extended by one year. Constituents have been calling for more severe sentences for sex offenders even before the Adam Walsh Act was enacted, and this trend continued in 2007 and 2008. There was a clear trend toward lifetime requirements for sex offenders, either in terms of registration requirements or sex offender monitoring, whether by the use of electronic technology or by lifetime probation for certain offenders. The popularity of residency restrictions or anti-loitering laws for sex offenders appeared to peak in 2007. By the end of the year, scrutiny of these laws intensified as their unintended consequences became clearer. Research shows that restricting where an offender lives does not prevent him or her from reoffending and does not make the community safer. Instead, these laws destabilize sex offenders, often pushing them out of communities and away from their support systems, jobs and access to treatment. Advocates argue this destabilization actually increases the risk of recidivism. New legislation has been enacted to respond to changing technology. The growth in the use of the Internet and related technology has forced states to continuously update their laws and their own technology to keep up. One such trend over the last several years has been the need to establish new criminal penalties related to electronic or computer-based luring or solicitation of a minor. Chat rooms, social networking sites, instant messengers and even Internet-based games have created new opportunities for potential predators. According to the Office for Victims of Crime, predators are using e-mail, instant messages, bulletin boards and chat areas to contact children, gain chil- drens’ confidence and lure them into face-to-face meetings. In addition, some states enacted legislation to keep certain sex offenders from accessing the Internet, specifically social networking sites, chat rooms or sites frequented by children.

Legislating Sex Offender Management | 2 | The Council of State Governments According to CSG research and analysis, the sex offender legislation considered in 2007–2008 can be divided into several main categories, although legislation can and often does fit into more than one category. Policymakers have addressed several major categories, introducing bills and enacting laws. Those include: 2007–2008 State Legislation on Sex Offenders, by Policy Area

Topic States Bills Introduced Laws Enacted Registration Information Expanded 47 350 62 Sentencing 46 269 53 Victims’ Rights 35 113 27 Work and Volunteering Restrictions 36 136 26 Residency Restrictions 44 214 22 Internet/Electronic Crime 26 47 15 Civil Commitment 23 71 14 Electronic Monitoring 31 109 14 Juveniles 30 80 12 Internet Access Restrictions 15 23 9 ID Cards/License Plates 14 24 6 People 15 28 5 Child Custody and Visitation 14 24 5 Erectile/Sexual Dysfunction Drugs 5 10 3 Death Penalty 6 7 2 Total 50 1,505 275

The Issues Adam Walsh Child Protection and Safety Act of 2006 The biggest concern facing state lawmakers during the 2007 and 2008 legislative sessions was the enactment of the Adam Walsh Child Protection and Safety Act in July 2006. The act, which is divided into seven titles, calls for a more detailed, uniform and nation- alized system of sex offender registries; addresses issues of child pornography, Internet safety and civil commitment; creates grants for electronic monitoring; and revises the Immigration and Nationality Act to address immigrants who sexually offend. The section most affecting states is Title I, commonly known as the Sex Offender Registration and Notification Act or SORNA. That section originally set a July 2009 deadline for states to comply with its provisions, but allowed states to apply for two one-year extensions. Failure to substantially implement the SORNA guidelines results in a 10 percent reduction in a state’s Byrne Justice Assistance Grant—commonly called JAG—funding. U.S. Attorney General Eric Holder, however, on May 26, 2009, issued a one-year blanket extension of the July 27, 2009, deadline (Order No. 3081-2009). Jurisdictions are required under SORNA to establish a three-tiered classification system for sex offenders. Though jurisdictions do not have to adopt the tier terminology, they do need to meet or exceed the standards SORNA spells out. Tiers are assigned based on the nature of the crime committed and the offender’s criminal history. The act also greatly expands the amount of information collected from sex offenders and the frequency in which this information must be updated, both by the offender and by the agency controlling the registry Web site. The offender must register in each jurisdiction he/she lives, attends school and holds a job. SORNA further requires sex offenders to provide any Internet or electronic identifiers, such as e-mail addresses or instant mes- senger IDs. Sex offenders must also provide a DNA sample.

Legislating Sex Offender Management | 3 | The Council of State Governments Registration Information Expanded A majority of the bills dealing with sex offender registries made revisions to the information required to be collected to include the Internet identifiers and also revised their classifications systems to possibly fit within SORNA’s guidelines. At least six bills—Georgia House Bill 314, Illinois Senate Bill 1887, Iowa Senate File 204, Tennessee House Bill 4197, Washington HB 2713 and Wyoming House Bill 120— added the requirement of a DNA sample. Several states—including Arizona (House Bill 2734), Colorado (House Bill 1326), Delaware (Senate Bill 60), Kansas (Senate Bill 204), Ohio (Senate Bill 97) and Virginia (House Bill 2749)—added e-mail addresses, screen names and other online identifiers to registration requirements. SORNA accounts for homeless or transient offenders in the “habitually lives” defini- tion by requiring information about any park or street where the sex offender frequents during the day or sleeps at night, shelters among which the sex offender circulates, or places in public buildings, restaurants, libraries, or other establishments that the offender may loiter. Transient offenders are also required to report the addresses of places they may visit for more than seven days. Delaware enacted legislation (Senate Bill 60) to require sex offenders who are homeless and classified as Tier III to verify their location information every seven days, Tier II to verify every 30 days, and Tier I to verify every 90 days. Under House Bill 4197, Tennessee now requires sex offenders whose residence is a motor home or trailer to submit the address where the vehicle is parked and the vehicle identification number and description of the vehicle.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 4 | The Council of State Governments Table 1: Registration Information Expanded

State Bills Introduced Enacted Vetoed Alabama 5 HB 332 Alaska 1 Arizona 6 HB 2480, HB 2734, SB 1021 California 10 AB 1172 AB 1076 Colorado 6 HB 07-1067, HB 07-1317, HB 07-1326 Connecticut 5 Delaware 3 SB 60 Florida 9 SB 1604 Georgia 1 Hawaii 3 HB 3040 Illinois 21 HB 1979, HB 1998, HB 3382, HB 3040, HB 5101, SB 0014, SB 0121, SB 0143, SB 0364 Indiana 10 SB 258 Iowa 6 SF 204 Kansas 1 SB 204 Kentucky 4 Louisiana 6 HB 970 Maine 7 Maryland 6 HB 18 Massachusetts 8 Michigan 9 Minnesota 2 Mississippi 4 Missouri 11 Montana 4 HB 272, SB 482, SB 547 Nebraska 4 New Hampshire 3 HB 37, SB 66 New Jersey 16 A2380, S716, S832 New Mexico 7 SB 735 New York 70 S4332, S6277, S690 A7329 North Carolina 7 HB 933, S1736 North Dakota 2 SB 2161, SB 2259 Ohio 7 SB 97 Oklahoma 9 HB1760 Oregon 4 Pennsylvania 5 Rhode Island 3 South Carolina 1 H3623 South Dakota 1 Tennessee 15 HB 1480, HB 4197, SB 64, SB 2594 Texas 14 Utah 3 HB 31, HB 85 Vermont 3 HB 148 Virginia 13 HB 1625, HB 1923, HB 2068, HB 2345, HB 2346, HB 2749, SB 1065, SB 1071 Washington 1 West Virginia 5 Wisconsin 7 SB 103 Wyoming 2 HB 120, SF 36 Total (47 states) 350 62 2

Legislating Sex Offender Management | 5 | The Council of State Governments Sentencing Issues A majority of the bills introduced address mandatory sentencing, aggravating factors and sentencing enhancements, mostly for crimes against minors. Five laws—Arizona Senate Bill 1476, Utah House Bill 5, Utah House Bill 85, Utah House Bill 86 and Utah House Bill 256—prohibit plea bargaining or the reduction of a charge to a non-sex-related crime and prohibit the earning of “good time” credit reductions in prison sentences. These bills address a concern of victim advocates that the wave of severe penalties for sex offenders would encourage plea bargaining to a lesser, non-sex-related crime and potentially discourage victims from coming forward. Historically, sex offender cases, as is true with most crimes, resolved through plea bargaining carry much lighter sentences and penalties than those resolved through trial. Preventing plea bargaining curbs this practice. Eight of the signed bills—Illinois House Bill 3382, North Carolina House Bill 933, North Carolina Senate Bill 2063, South Carolina House Bill 3623, Texas House Bill 8, Utah House Bill 86, Utah House Bill 93 and Utah House Bill 256—involved lifetime monitoring and/or probation for certain offenders. For example, North Carolina Sen- ate Bill 2063, modeled after Florida’s “Jessica’s Law,” imposes lifetime satellite-based monitoring on offenders who have taken indecent liberties with children.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 6 | The Council of State Governments Table 2: Sentencing Issues

State Bills Introduced Enacted Vetoed Alabama 1 Alaska 2 HB 90 Arizona 5 HB 2207, HB 2480, SB 1476 HB 2389 Arkansas 1 HB 1013 California 8 AB 1509, SB 172, SB 1105, SB 1302 Colorado 2 HB 07-1171 Connecticut 2 Delaware 2 HB 130 Florida 4 Georgia 1 SB 114 Hawaii 6 Idaho 1 Illinois 11 HB 263, HB 3382, SB 121 Indiana 7 HB 1271 Iowa 5 Kansas 3 Louisiana 1 Maine 3 Maryland 14 HB 213, HB 390, HB 930, SB 16, SB 170 Massachusetts 4 Minnesota 12 Mississippi 1 Missouri 3 Montana 3 SB 482, SB 547 Nebraska 2 Nevada 3 HB 579, SB 629 New Hampshire 2 New Jersey 26 A 2380 New Mexico 5 SB 528 New York 40 S6277 North Carolina 10 HB 118, HB 933, SB 132, SB 1736, SB 2063 Ohio 3 SB 183, SB 220 Oklahoma 7 HB 1714 Oregon 3 Pennsylvania 4 Rhode Island 3 South Carolina 7 HB 3623 Tennessee 8 HB 252, HB 1480 Texas 8 HB 08, SB 75 Utah 7 HB 5, HB 85, HB 86, HB 93, HB 256, HB 492 Vermont 2 Virginia 4 HB 2591, HB 2749, SB 1071 Washington 9 SB 5243 West Virginia 6 Wisconsin 5 SB 103 SB 40 Wyoming 3 SF 104, SF 36 Total (46 states) 269 54 2

Legislating Sex Offender Management | 7 | The Council of State Governments Juveniles SORNA requires that juvenile sex offenders age 14 and older be included on both state and national public sex offender registries. Previously, only juveniles charged as adults were subject to registration and notification requirements. As a result, a juvenile offender’s addresses (home, school or work), photograph and description, and license plate number could be made public. Many of the bills related to juveniles that legislatures considered were designed to bring state laws into compliance with SORNA’s new registration and notification requirements. Such bills were enacted in Arizona, Illinois, Missouri, North Dakota and Rhode Island; those laws now allow certain juvenile sex offenders to be included in the states’ registries. Rhode Island, however, allows the registration information to be made public only after the juvenile turns 18, and Arizona gives judges discretion to allow community notification for offenders under 22 years old.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 8 | The Council of State Governments Table 3: Juveniles

State Bills Introduced Enacted Vetoed Alabama 3 SB 1021 Alaska 2 Arizona 4 California 2 Colorado 1 HB 1132 Florida 3 Hawaii 2 Idaho 1 Illinois 10 SB 121, SB 1509 Indiana 1 Iowa 1 Kentucky 1 Maine 2 LD 697 Maryland 1 Minnesota 1 Mississippi 1 Missouri 5 SB 714 New Jersey 2 New York 12 North Carolina 2 HB 933, S 1736 North Dakota 2 SB 2259 Ohio 4 Oklahoma 5 HB 1051 Pennsylvania 1 Rhode Island 3 SB 2515 Tennessee 2 Texas 3 Vermont 1 Virginia 1 Washington 1 SB 5243 Total (30 states) 80 12 0

Legislating Sex Offender Management | 9 | The Council of State Governments Global Positioning Systems (GPS) and Electronic Monitoring At least 13 states were using GPS or electronic monitoring of sex offenders as early as 2006. The devices are either passive, where the unit simply records the person’s move- ments and can be downloaded at any time, or active, meaning the unit transmits the offender’s location in real time. Active systems can be programmed to send an alarm if the offender violates certain conditions, such as leaving the state or other geographical location, tampering with the device, or coming within a certain distance of a prohibited area, such as the victim’s residence or a school. Despite the high cost of equipment and staff time, electronic monitoring is increasingly popular among states. Costs can range between $10 and $14 per day per offender, not including the cost for staff to monitor the devices. Even then, the use of GPS technology does not mean offenders are supervised at all times. Indiana, New Jersey and North Dakota passed laws requiring electronic monitoring of certain sex offenders deemed likely to reoffend. In addition, new laws in Delaware and New Mexico require monitoring for offenders on parole. Three of the enacted bills—North Carolina Senate Bill 203, North Carolina House Bill 933 and Texas House Bill 8—require lifetime satellite monitoring of certain sex offenders, generally considered at high risk to reoffend.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 10 | The Council of State Governments Table 4: Global Positioning Systems (GPS) and Electronic Monitoring

State Bills Introduced Enacted Vetoed Arizona 2 California 4 AB 439 Colorado 1 Connecticut 1 Delaware 1 HB 100 Florida 5 Hawaii 1 Illinois 4 Indiana 1 SB 258 Massachusetts 1 Minnesota 1 Mississippi 3 Nevada 1 New Jersey 8 S484 New Mexico 3 SB 528 New York 9 North Carolina 6 HB 29, HB 933, SB 2063 North Dakota 1 SB 2029 Ohio 3 SB 220 Oklahoma 2 Oregon 1 Pennsylvania 4 Rhode Island 1 South Carolina 6 HB 3623 Tennessee 21 Texas 4 HB 8 Virginia 1 Washington 3 West Virginia 3 Wisconsin 6 AB 597, SB 103 SB 480 Wyoming 1 Total (31 states) 109 14 1

Legislating Sex Offender Management | 11 | The Council of State Governments Work and Volunteering Restrictions Stable employment is an important part of an offender’s rehabilitation and can reduce the risk of recidivism. But careful consideration must be placed on the type of job a convicted sex offender may take. Logically, a pedophile or sex offender who preys on children should not be employed in an environment where there might be unsupervised access to minors.3 These considerations were once dealt with by a community supervision officer on a case-by-case basis, but some states are moving toward blanket laws to prevent certain types of employment or volunteer activity. Most bills introduced in the 2007 and 2008 sessions dealt with jobs that would bring the offender into contact with children. In addition to the obvious limitations, such as working at a school or day care, some states sought to limit employment in other areas, like operating an ice cream truck or a school bus, working at a carnival, circus, street fair, amusement park or long-term care facility, or serving as an athletic coach, manager or trainer. This group of legislation also sought to prevent sex offenders from being able to obtain or retain certain professional licenses. In at least four states—Arizona, Cali- fornia, Hawaii and Utah—legislators acted to require the revocation or suspension of teaching credentials upon a conviction of certain sexual offenses. California passed a law (Senate Bill 252) to deny or revoke dental licenses and massage therapy licenses to convicted sex offenders. Massachusetts now prohibits certain sex offenders from obtaining licenses to drive buses (House Bill 4396), while New York targeted real estate licenses (Senate Bill 1531). Virginia enacted a law in 2007 that requires any public officeholder convicted of an offense that requires registration to resign that office. Tennessee passed a law in 2008 (House Bill 4197) that prohibits sex offenders who committed crimes against minors from dressing up in costumes meant to attract children; it also bars them from work in ice cream trucks or emergency vehicles. Similarly, a new Illinois law (House Bill 156)

3 “Time to Work: Managing the Employment of Sex Offenders Under Community Supervision,” CSOM, January 2002.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 12 | The Council of State Governments Table 5: Work and Volunteering Restrictions

State Bills Introduced Enacted Vetoed Arizona 1 HB 2042 California 7 AB 439, SB 252, SB 1105 Colorado 1 Connecticut 1 Florida 7 SB 988 Georgia 1 SB 114 Hawaii 1 SB 3040, SB 2080 Idaho 3 Illinois 16 HB 0156, HB 0820, HB 5101, SB 364 Indiana 4 SB 364 Iowa 1 Kansas 1 Kentucky 1 Maine 1 Maryland 2 Massachusetts 7 HB 4396 Michigan 4 Minnesota 5 Mississippi 7 SB 2422 Missouri 5 Nevada 1 HB 352 New Jersey 12 New York 17 S 1531 North Carolina 4 SB 132 Ohio 1 SB 97 Oklahoma 4 SB 1601 Pennsylvania 2 Rhode Island 1 South Carolina 4 S 459 Tennessee 4 HB 4197 Texas 3 Utah 2 HB 286, HB 287 Virginia 1 HB 1625 West Virginia 2 Wisconsin 1 Wyoming 1 HB 120 Total (36 states) 136 26 0 makes it unlawful for a child sex offender to knowingly own, work for or volunteer with any carnival, circus, street fair or public festival when people under the age of 18 are present. Legislators in several states introduced 64 bills—11 to create a duty with certain employers to check sex offender registries on all employees; 10 of them were enacted. Many of the introduced bills create a criminal liability for the employer who fails to conduct this check. Oklahoma, for example, makes failure to conduct annual registry checks a misdemeanor punishable by a $1,000 fine (Senate Bill 1601). Most of these laws apply to school employees and their contractual workers. Missouri enacted Senate Bill 389 making any college or university that knowingly employs a registered sex offender ineligible for capital project funding. Some states require certain licensing agencies to conduct sex offender registry checks. For example, Mississippi’s Senate Bill 2422 in 2008 requires such checks before issuing licenses for professional counselors.

Legislating Sex Offender Management | 13 | The Council of State Governments Residency Restrictions The first statewide residency restrictions for sex offenders developed earlier this decade and have become a widespread approach for managing sex offenders in the community. These laws seek to prevent sex offenders from access to children by prohibiting the offender from living within a specified distance of a facility that caters to children, such as a school or day care center. Prior to 2000, only five states had such restrictions. As of January 2009, 27 states had enacted some form of these laws. The severity of the restriction varies by state and can range anywhere from 500 feet to 2,500 feet from any place children congregate. Arizona and South Carolina both enacted laws creating residency restrictions in 2007 and 2008, respectively. A majority of bills introduced in 2007 and 2008, however, were to expand or clarify current laws. Alabama added colleges and universities (House Bill 276) as well as bus stops (Senate Bill 245) to its list of prohibited areas for sex offenders in 2008. Arkansas expanded its law to prohibit registered sex offenders from living near their victims (House Bill 1564) and limited the existing residency restriction law to the more serious level 3 and 4 offenders. Laws restricting where a sex offender can live had gained in popularity, but are now seeing a backlash. Although a majority of states and even more local jurisdictions employ them, research has shown no evidence that residency restrictions reduce incidence of sexual offenses, nor has any correlation been found between an offender’s proximity to children and their offenses.4 Further, the laws effectively banished sex offenders from certain locations because of the severity of their restrictions. Unable to find housing that complied with the law, many offenders disappeared and failed to keep up their registration requirements. Some advocates claim the additional stress of being unable to find a place to live or being forced from their homes can trigger some sex offenders to relapse and reoffend.

4 The Vera Institute of Justice, “The Pursuit of Safety: Sex Offender Policy in the United States” (Sept. 2008).

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 14 | The Council of State Governments Table 6: Residency Restrictions

State Bills Introduced Enacted Vetoed Alabama 9 HB 276, HB 245 Arizona 3 SB 1011, SB 1555 Arkansas 2 HB 1564, HB 2266 California 11 Colorado 2 HB 07-1067 Connecticut 2 Delaware 1 SB 133 Florida 10 Hawaii 1 Idaho 1 HB 417 Illinois 13 HB 3399, SB 1509 Indiana 1 Iowa 9 SB 2036 Kansas 4 Kentucky 3 Louisiana 1 Maine 7 LD 1491 Maryland 4 Massachusetts 7 Michigan 1 Minnesota 1 Mississippi 2 HB 519 Missouri 7 Montana 1 Nebraska 2 Nevada 1 New Hampshire 1 New Jersey 8 New Mexico 5 New York 40 S 3614 North Carolina 2 HB 933 North Dakota 1 HB 1472 Ohio 9 SB 97 Oklahoma 6 SB 763 Pennsylvania 8 Rhode Island 2 South Carolina 1 South Dakota 1 Tennessee 8 HB 4197 Texas 8 Utah 1 HB 375 Virginia 4 HB 2776 West Virginia 1 Wisconsin 2 Total (44 states) 214 22 0

Legislating Sex Offender Management | 15 | The Council of State Governments People in a Position of Trust States continue to target teachers and other school personnel who commit sex offenses against those under their supervision. Bills introduced in 2007 and 2008 often cover any school employee or person “in a position of trust or authority” over a child, including coaches, school administrators and school volunteers. For example, with House Bill 471, Vermont attempted to criminalize sexual behavior between a school employee and a student who has reached the state’s age of consent. The issue does not encompass only teachers and school employees. A 2008 bill in Maine, LD 697, expanded this type of law to cover any person who has “supervisory or disciplinary authority of one of the following: a sex offender on supervised release, a prisoner on supervised community confinement or a juvenile on community reintegra- tion status.” Kentucky enacted House Bill 211 in 2008, which also applied the concept generally to cover any person in a “position of authority or special trust” from having sexual contact or engaging in masturbation in the presence of a minor under age 18.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 16 | The Council of State Governments Table 7: People in a Position of Trust

State Bills Introduced Enacted Vetoed Alabama 2 Arizona 1 SB 1336 Kentucky 4 HB 211 Louisiana 1 Maine 1 LD 697 Maryland 1 Michigan 2 New Hampshire 1 New York 2 Oklahoma 1 South Carolina 6 South Dakota 1 Tennessee 2 Utah 2 Vermont 1 HB 286, HB 287 Total (15 states) 28 5 0

Legislating Sex Offender Management | 17 | The Council of State Governments Civil Commitment Civil commitment laws allow certain high-risk sex offenders to be held indefinitely in a secure psychiatric facility after they have completed their prison sentences. These offenders are considered at the highest risk to reoffend and are usually labeled “sexually violent predators.” This group of offenders is committed indefinitely to a mental health treatment facility until deemed suitable for release into the community. In 2007, New York lawmakers passed Senate Bill 3318, which allows for the ongoing supervision and custody of sex offenders upon the expiration of their criminal sentences. Under the law, mental health professionals determine whether a detained sex offender has a mental abnormality that predisposes him or her to commit future sex crimes. If the attorney general’s office is able to prove the mental abnormality to a jury and obtain a unanimous finding, a judge either can order an individual confined to a mental health facility or require the individual to undergo intensive supervision after his or her release from prison. North Dakota lawmakers tightened their existing civil commitment law to allow for a more flexible determination of a sexual disorder or tendency to commit sexual crimes in civil commitment cases.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 18 | The Council of State Governments Table 8: Civil Commitment

State Bills Introduced Enacted Vetoed California 6 AB 2410 Colorado 1 HB 1247 Illinois 2 HB 3382 Iowa 2 Kansas 1 Maine 3 LD 697 Maryland 5 Minnesota 8 HF 2996 New Hampshire 1 SB 66 New Mexico 2 New York 6 S3318 North Carolina 2 HB 933 North Dakota 3 HB 1217, SB 2136, SB2340 Pennsylvania 2 Rhode Island 3 South Carolina 2 Tennessee 1 Texas 6 HB2034 Vermont 1 Virginia 3 Washington 6 SB 5243 West Virginia 2 Wisconsin 3 SB 103 Total (23 states) 71 14 0

Legislating Sex Offender Management | 19 | The Council of State Governments Child Custody and Visitation Legislatures considered legislation to limit a sex offender’s access to his or her own children. Colorado’s Senate Bill 106 enacted in 2008 requires sex offender-specific eval uations and risk assessments for child custody cases when a sex offender is involved. New York’s Assembly Bill 11657 only requires that the court review orders of protection, warrants of arrest and sex offender registries prior to issuing orders of custody. North Carolina’s House Bill 1328 enacted in 2007 requires disclosure of a sexually violent offense conviction during custody and visitation proceedings. Delaware’s Senate Bill 133 in 2007 went further by creating a rebuttable presumption that a sex offender be denied unsupervised visits, custody or residency, which means the sex offender must prove he or she is not a danger to the child. Arkansas’ House Bill 1025 in 2007 simply prohibits an award of child custody or visitation to a sex offender except under limited circumstances.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 20 | The Council of State Governments Table 9: Child Custody and Visitation

State Bills Introduced Enacted Vetoed Arkansas 1 HB1025 Colorado 1 SB 106 Delaware 1 SB 133 Indiana 1 Massachusetts 1 Missouri 4 New York 7 A 11657 A 7329 North Carolina 1 HB1328 Oklahoma 1 South Carolina 2 Utah 1 Washington 1 West Virginia 1 Wisconsin 1 Total (14 states) 24 5 1

Legislating Sex Offender Management | 21 | The Council of State Governments Internet or Electronic Crimes As technology continues to progress at blinding rates, some will find ways to exploit it. The rise of the Internet and related technology has forced states to continuously update their laws and their own technology to keep up. One such trend over the last several years has been the creation of penalties for newly emerging crimes related to electronic or computer-based luring or solicitation of a minor. Chat rooms, social networking sites, instant messengers and even Internet-based games have created new opportunities for potential predators. According to the Office for Victims of Crime, predators are using e-mail, instant messages, bulletin boards and chat areas to contact children, gain children’s confidence and lure them into face-to-face meetings. A majority of the bills signed into law creates criminal penalties related to using electronic means or telecommunication devices to lure, entice or seduce minors and adds these crimes to the list of registrable sex offenses. Florida passed the Cyber Crimes Against Children Act of 2007, which increased penalties for the possession or distribution of child pornography online and created a new, separate penalty against Internet predators who communicate with a child online and then travel to meet that child for the specific purpose of abusing them. The legislation also increased penalties for offenders who misrepresent their age to seduce a child over the Internet. Similarly, New Mexico created the new crime of child solicitation by electronic communication device. Several of the enacted laws create crimes or increase penalties for transmitting sexually explicit material to a minor or someone the perpetrator believes to be a minor. These bills mostly involve Internet usage, but some include text messaging and web cameras.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 22 | The Council of State Governments Table 10: Internet or Electronic Crimes

State Bills Introduced Enacted Vetoed Alabama 1 HB 79 Alaska 3 HB 90 Arizona 1 Arkansas 1 HB1013 California 3 Florida 1 SB 1004 Hawaii 1 HB 3040 Illinois 2 SB 2382 Iowa 2 Kansas 1 SB 477 Kentucky 2 Michigan 1 Minnesota 2 Mississippi 1 Missouri 1 New Hampshire 1 SB528, SB735 New Jersey 3 New Mexico 5 New York 3 North Carolina 4 SB 132 North Dakota 1 SB2248 Ohio 1 SB183 Oregon 1 HB 2843 Utah 2 HB 5, HB 327 Virginia 2 West Virginia 1 Total (26 states) 47 15 0

Legislating Sex Offender Management | 23 | The Council of State Governments Internet Access Restrictions Several states are seeking to keep some, if not all, sex offenders from accessing the Internet. The scope of these bills vary from prohibiting sex offenders from visiting social networking sites such as Facebook or MySpace, using instant messaging programs and chat rooms, or visiting Web sites frequented by children. More restrictive bills would bar the offender from all Internet activities. For example, Tennessee’s Senate Bill 2717 allows the court or parole board to impose restrictions on computer use, as a condition of release, for a person being supervised for a registrable sexual offense where the victim is a minor. The offender may be prohibited from accessing or using any Internet social networking Web site that has the potential or likelihood of allowing the offender to have contact with a minor. Prohibiting offenders from accessing the Internet has raised numerous constitutional questions and has only been ruled acceptable under very specific circumstances. For that reason, some probation agencies monitor offenders’ Internet use instead. To that end, software that allows probation officers or monitoring agencies to supervise the offenders’ online activities is installed on offenders’ computers. Illinois’ House Bill 50 requires that any child sex offender on supervision, probation or mandatory supervised release must not communicate via the Internet with unrelated individuals believed to be under 18. New Jersey Senate Bill 1979 gives the state broad authority to regulate a sex offender’s computer and Internet usage as long as the person remains on parole. Anyone who uses a computer to help commit sex crimes will be prohibited from using computers or the Internet at all. The state parole board may also impose, at its discretion, restrictions on offenders even if they did not use computers to plan their crimes. In addition, the state can force sex offenders to install hardware or software monitoring systems on computer equipment, submit to unannounced searches of any computer equipment, and get written permission before using a computer or the Internet.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 24 | The Council of State Governments Table 11: Internet Access Restrictions

State Bills Introduced Enacted Vetoed Florida 1 SB 1004 Georgia 1 SB 474 Illinois 3 HB0050, SB0014 Indiana 2 SB 258 Louisiana 1 SB 500 Maine 1 Massachusetts 1 New Jersey 2 S1979 New York 2 North Carolina 1 SB 132 Oklahoma 1 HB1714 Pennsylvania 3 Tennessee 2 Washington 1 Wisconsin 1 Total (15 states) 23 9 0

Legislating Sex Offender Management | 25 | The Council of State Governments Victims’ Rights State legislatures passed several laws to protect the identity of victims or to extend the statute of limitations to give victims more time to bring actions against their abusers. Most notable in this area are six new laws—in Florida, Kentucky, Louisiana, Nebraska, New Mexico and West Virginia—that prohibit law enforcement from requiring victims of sexual abuse or assault from submitting to lie detector or polygraph examinations as a condition of proceeding with an investigation. This type of legislation could encourage victims to come forward by removing a practice that seems to assume victims are lying and must prove their story in order to seek justice. In addition, Delaware and Louisiana both enacted laws to require, at a victim’s request, that a sex offender be tested for sexually transmitted diseases. Arkansas, Tennessee and Utah passed legislation to prohibit a sex offender from living within a specified distance from the victim or from contacting the victim in any way.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 26 | The Council of State Governments Table 12: Victims’ Rights

State Bills Introduced Enacted Vetoed Arkansas 1 HB1564 California 5 AB 2410, AB 30308, SB 449 Connecticut 1 Delaware 1 HB 424 Florida 9 HB 989 Hawaii 1 Illinois 8 HB 1330, HB 5101 Kansas 2 Kentucky 2 SB 151 Louisiana 2 HB 1373, SB 717 Maine 4 Maryland 1 Massachusetts 5 Michigan 4 Minnesota 4 Missouri 2 Nebraska 2 LB143 Nevada 2 HB 194, SB57 New Hampshire 1 SB 311 New Jersey 1 New Mexico 1 HB 337 New York 14 S 5902 North Carolina 3 SB 17 Ohio 4 Oklahoma 1 HB1051 Oregon 1 Pennsylvania 3 Tennessee 8 HB 4197, HB 1835, SB 1967 Texas 1 Utah 2 HB375 Vermont 4 Virginia 1 Washington 7 SB 5332 West Virginia 2 SB 512, SB 529 Wisconsin 3 SB 103 Total (35 states) 113 27 0

Legislating Sex Offender Management | 27 | The Council of State Governments Erectile/Sexual Dysfunction Drugs In 2005, Congress passed legislation to disqualify erectile dysfunction drugs from being covered under Medicaid programs. At least 14 states discovered that their Medicaid programs were also reimbursing convicted sex offenders for prescriptions for erectile or sexual dysfunction drugs. Since 2005, states have acted to exclude certain classes of drugs, including those for sexual dysfunction, from coverage in their Medicaid programs. The 2007 legislative session saw more states closing the loophole, but some legislators wanted to take this idea a step further. Of the five states that introduced bills to prohibit registered sex offenders from using public money to receive sexual dysfunction drugs, three states considered bills to prohibit any registered sex offender from possessing this class of drug. Illinois adopted Senate Bill 1397, which, among other things, now requires as a condition of parole or mandatory supervised release that a sex offender not possess prescription drugs for erectile dysfunction.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 28 | The Council of State Governments Table 13: Erectile/Sexual Dysfunction Drugs

State Bills Introduced Enacted Vetoed Connecticut 3 HB8002, SB1484 Illinois 2 SB1397 New Jersey 1 New York 3 Oregon 1 Total (5 states) 10 3 0

Legislating Sex Offender Management | 29 | The Council of State Governments Identification Cards and License Plates As a way to identify convicted sexual offenders, states have considered legislation that requires special identification cards or license plates. In 2007, Alabama, Ohio and Wis- consin introduced bills requiring special license plates for registered sex offenders; however, none of the bills passed. Similarly, in 2007, Florida and Oklahoma lawmakers passed laws to require distinc- tive markings for driver’s licenses and identification cards issued to offenders designated as sexual predators or subject to registration as sexual offenders. More popular laws included those that tie sex offender registration to a driver’s license or identification card because they may help increase compliance with registration requirements. When an offender’s address changes, this information is required to be reported to the state’s department of motor vehicles, and could potentially alert the state of a violation if the change is not also made with the sex offender registry. These laws could also help track offenders who move out of state. When the offender turns in his or her license when applying for one in the new state, that state immediately will know the offender is required to register. Missouri and Ohio passed laws to require sex offenders who must register to maintain a current driver’s license or identification card, which could be suspended for failure to register.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 30 | The Council of State Governments Table 14: Identification Cards and License Plates

State Bills Introduced Enacted Vetoed Alabama 1 Arizona 1 Arkansas 1 HB2286 Delaware 1 Florida 3 SB 988 Massachusetts 2 HB4396 Missouri 4 New York 2 North Carolina 1 Ohio 3 SB97 Oklahoma 1 SB35 Texas 1 Utah 1 HB31 Wisconsin 2 Total (14 states) 24 6 0

Legislating Sex Offender Management | 31 | The Council of State Governments Death Penalty During the 2007 legislative session, Texas enacted its version of the Jessica Lunsford Act, named for a 9-year-old Florida girl who was abducted from her home, held captive for several days, raped and later murdered by a neighbor. Texas House Bill 8 allows for capital punishment for the continuous sexual abuse of a minor, among other things. As of August 2009, 35 of 50 states allow the death penalty, but those laws vary widely by state. Capital punishment is permitted for some crimes other than murder, e.g., for sexually assaulting a child. Florida, Georgia and Louisiana permit the death penalty as punishment for the sexual assault of a child. Montana, Oklahoma and South Carolina allow the death penalty for individuals convicted of repeated sexual assaults against children. No one sentenced to die as the result of a sex offense conviction has been executed since the death penalty was reinstated in 1976. During the 2007 legislative sessions, at least six states considered allowing capital punishment in cases involving the rape or sexual assault of a child. Bills in Alabama, Mississippi, Missouri and Texas did not require a death to take place, while bills in Hawaii and Utah add the attempt or commission of a sex offense against a child during the commission of an aggravated murder as an aggravating factor that could qualify for capital punishment. Texas and Utah’s bills both passed. In light of the Supreme Court’s recent ruling in Kennedy v. Louisiana, legislators may revisit this issue. After Louisiana’s Supreme Court upheld Patrick Kennedy’s death sentence for the extremely brutal rape of his 8-year-old stepdaughter, the case was appealed to the U.S. Supreme Court, which overturned the sentence in 2008. The U.S. Supreme Court held it was unconstitutional to impose the death penalty for the crime of raping a child, when the victim does not die and death was not intended.

Bills Introduced Bills Signed/Enacted

Legislating Sex Offender Management | 32 | The Council of State Governments Table 15: Death Penalty

State Bills Introduced Enacted Vetoed Alaska 1 Hawaii 1 Mississippi 2 Missouri 1 Texas 1 HB8 Utah 1 HB 93 Total (6 states) 7 2 0

Legislating Sex Offender Management | 33 | The Council of State Governments