By Larry . . . NARSOL fully supports the goal of a risk-based registration system with registration information only available to law enforcement entities. Having said that, it is important to recognize that convincing legislators in to move towards a risk-based system will be harder than it at first may seem, for several reasons.
States are generally moving away from risk-based models to an offense-based model to comply with the AWA which bases the tier levels on the offense. Several states including Nebraska, Wyoming, Oklahoma, and Vermont that previously utilized risk-based models have scrapped them since enactment of the AWA. Vermont did not totally scrap its risk-based model but changed its law so that those with victims under age 18 are posted on the Internet even if the person is determined to be at low-risk for re-offense. And, of course, states that have never had a risk-based registration system would be beginning from scratch.
To create a risk-based registration system, several barriers must be overcome, the most significant of which is the financial cost. A new governmental apparatus would need to be created to perform the evaluation of each offender. Costs would include (1) a professional staff to gather the necessary background on each offender and (2) competent personnel to make an objective determination of the person’s risk to commit new sexual offenses. Once the apparatus is created it would need recurring funding because new people are added to the registry daily and others are constantly being released from custody.
Another hurdle will be how to handle those that do not agree with their risk assessment. No system is perfect, which means you will need a robust review/appeal process. Those with non-contact offenses cannot assume that you be deemed “low-risk” because that is not at all what happens in states currently using risk assessments.
To be successful in convincing legislators that a risk-based system is more desirable, you will want to research and prepare answers for these important questions.
- How exactly would you want the state’s registration scheme modified based on risk assessments?
- Are you recommending that low-risk persons not be listed on the website, or do you want to reduce registration periods and in-person reporting requirements based on the outcome of the risk assessment?
- What would be the approximate cost to create the entity that would determine the person’s risk? That entity will need professional staff to conduct the individualized evaluations. Otherwise the Static 99 will become the only option.
- What would the process of appeal look like if a registrant disagreed with his/her risk assessment?
- Would that appeal process be administrative or judicial?
- In the appeal process, who would represent the state, as they would certainly want to have a say in the individual’s risk determination?
- What would the burden of proof be? Clear and convincing evidence or preponderance of evidence?
- Which party will be required to carry the burden of proof by whichever standard prevails?
- How would indigent registrants be represented in this process?
- How would an indigent’s psychologist or other experts be compensated so that the process would be fair?
- How often could a registrant petition to have his/her risk reevaluated?
It is clear that convincing states with offense-based registration to switch to a risk-based model will be difficult, and making a success of it will require a lot of work. Although NARSOL supports risk assessments conceptually, this is why we generally choose to focus on constitutional and civil rights arguments.
