Table of Contents
What this is about
HB1640, titled “an act relative to the classification of convicted sex offenders and offenders against children,” is New Hampshire’s attempt at complying with the federal Adam Walsh Act (AWA). We’ve identified a large number of serious problems with this bill, and thus we oppose its passage in its current form. Among these problems are:—
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Privacy rights. This bill requires, among other things, listing on the state’s online registry a person’s Internet identifiers, information about their vehicles including license plates, and even current employer along with their address. The bill also calls for the retroactive collection of DNA samples from registered offenders, regardless of whether or not they’re suspected of committing another crime.
Considering the ease with which one can create new screen names and email addresses, the Internet identifier requirement is all too easy to circumvent. Secondly, what if an offender uses a screen name on one service which is identical to that used by a completely different person on another service (e.g., AIM and MSN)? Are the people running the state registry technically savvy enough to understand these issues and make it clear on the registry who’s really who? Would the average person searching the registry understand?
Random strangers using the same screen names as the offender aren’t the only innocents that could get caught up in this mess. What happens when a member of an offender’s family—their spouse, or child—borrows their car?
The publication of employer information in the registry will only serve as a strong deterrent for employers to consider hiring registered offenders, making their integration back into law-abiding society that much more difficult. Why should businesses be forced to have their details published online for merely hiring registered offenders?
Faulty classification schemes. The study committee set up under HB1692 two years ago was supposed to study classification of offenders, that is, to individually classify them and designate a level of dangerousness—not pigeonhole people into tiers based on the offense for which they were convicted. Under the proposal in this bill, the registration scheme will continue to be offense-based. Why was this important reform not included in this bill?
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Inconsistency. This bill both exceeds and falls short of the federal requirements under AWA. With this bill, tier II offenders are initially registered for life—exceeding the AWA requirement of twenty-five years—but can petition the courts to be removed after only fifteen years, something not allowed under AWA. Furthermore, AWA mandates that sex offenders report changes in their registration within three days, yet this bill allows for up to five days. Additionally, we already exceed some of the convicting methods for the crimes listed, e.g., AWA allows for a four-year age difference in statutory rape cases before registration is required, but New Hampshire requires such offenders to register if the age difference is only three years. Finally, we never truly allow anyone off of New Hampshire’s registry—only the public registry. And AWA requires the removal of a person from the registry after their required term has elapsed.
If New Hampshire branches off into their own idea of what’s required under AWA, then we run the risk of the federal government declaring New Hampshire noncompliant with AWA—rendering this whole bill a useless and expensive waste of time.
Money. If states don’t comply with AWA by 2009, the federal government is threatening to cut by 10% the criminal justice funding provided to the states by the federal government under the Byrne Memorial Justice Assistance Grant Program. Yet, in the federal budget for fiscal year 2008, Byrne Grants have already been cut by 67%, across the board for all fifty states! So, what’s the point of this bill if we’ve already lost most of the money to begin with? What’s 10% of virtually nothing actually worth? Will it even cover the increased costs of implementing this bill?
What needs to be done
Next stop, the New Hampshire Senate…
What’s been done
2008-03-05: House floor vote
The bill came up for a floor vote in the House today.
Rep. Jennifer Brown attempted to amend the bill, adding provisions similar to HB1501, where two teenagers who engage in a single instance of consensual sex that crosses the age-of-consent boundary would not result in a registrable offense. The amendment was torpedoed when another representative asked a question, implying that the amendment would protect first-time child rapists—ignoring the fact that Rep. Brown explicitly said it only applied to consensual acts.
The amendment was narrowly defeated by a voice vote. The bill was then put to a voice vote and passed overwhelmingly, with only a dozen or so nays.
Other status updates
Coming soon.
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This bill has passed out of committee, having been completely replaced by a last-minute amendment. The bill will be debated and voted on on the House floor sometime on Wednesday, 2008-03-05.
We’ve been working hard making sure our legislators are aware of all the problems present in this bill, and we’ll be there to watch the proceedings on Wednesday and see how it goes. We expect the bill as a whole to pass, but hopefully some of the most problematic sections will be amended or removed first.
2008-02-06: Concord Monitor: Bill to broaden sex offender list
By Annmarie Timmins, Monitor Staff (original article)
Lawmakers are considering vastly expanding the public sex offender registry to include not only more crimes like some Peeping-Tom incidents and indecent exposures, but also the names of people who’ve victimized adults. The public list now identifies only child molesters.
The proposed legislation, introduced in part to bring New Hampshire in line with federal requirements, would also allow the police to collect more information from offenders, including cell phone numbers, e-mail addresses, online screen names and DNA if it hasn’t already been collected.
“The best predictor of future behavior is past behavior,” Earl Sweeney, assistant commissioner of the state Department of Safety, told lawmakers yesterday. “We hear a lot about people paying their debt to society. But society has a debt to law-abiding people to say we are going to protect you from the non–law-abiding.”
The bill, heard yesterday by the House criminal justice committee, is the work of a bipartisan study committee that met for two years. Its goal was to help the state better evaluate and classify sexual offenders of both children and adults. Soon after the group formed, the federal government passed its own sex-offender registration bill and gave states a choice: Pass something comparable or lose 10 percent of a federal criminal justice grant.
Rep. Cynthia Dokmo, an Amherst Republican and one of the bill’s co-sponsors, told committee members she thinks the study group balanced what the federal authorities passed and what New Hampshire needs.
For example, the proposed legislation, like the federal law, would add some crimes to those already requiring registration, including murder during a rape, violation of privacy with a sexual element and indecent exposure. It would also categorize offenders into tiers, based on the seriousness of their crimes. The tiers would determine how long someone had to appear on the public registry.
And the proposed legislation would, for the first time, make public the names of people who commit serious sexual assaults against other adults. (The state already tracks these offenders, but that list is available only to law enforcement and includes fewer types of offenses.)
But the proposal before state lawmakers differs from the federal model, too: It would not require juveniles as young as 14 to register for life. On the other hand, it would hold other offenders to a lifetime registration who under federal law register for only 25 years.
Sweeney said the legislation would make it easier for the police to register offenders who move to New Hampshire from out of state. “If you have to register in your state, under [this bill] you’d have to register in this state,” he said. Now the police sometimes have to look into the circumstances of out-of-state offenses to determine whether someone must register here.
“This isn’t going to prevent a child from being molested or from a person being injured,” Dokmo said. “This is just one more tool that we as parents and individuals can use. But we still need to be aware of our surroundings and to educate our children.”
The proposal was not without critics yesterday. Two of them, Laurie Peterson and Jeremy Olson of Manchester, founded the group CURSOR, Citizens United to Reevaluate Sex Offender Registries.
Olson believes the proposed state law differs enough from the federal law to raise legal problems. He also faulted the proposal for leaving offenders on the private registry, even after they have been allowed to remove their names from the public list.
Peterson’s complaints were personal. In 1996, her husband, Michael Peterson, was charged with seven counts of felonious sexual assault against a 15-year-old girl following a hotel party. He was convicted in 1997 and now appears on the state’s sex offender registry.
Laurie Peterson has asked lawmakers several times to rewrite the registry law to exclude people like her husband. She renewed that request yesterday, saying it was an embarrassment for the couple’s three young children.
“I beg you to recognize the collateral damage and unintended victims these laws leave in their wake,” she said.
At least one lawmaker on the criminal justice committee sympathized with Peterson yesterday.
Rep. Timothy Robertson, a Keene Democrat, said he was opposed to including “acts of passion,” which he equated with statutory rape. He proposed the example of a young Marine home on leave and set up on a date with someone who looked 20 but was 14. “He shouldn’t be penalized … because she was being patriotic and did things she shouldn’t have,” Robertson said.
Sex offenders must currently register with their local police departments twice a year. Under the new law, that would not change for most offenders. But those in Tier 3, which includes the most serious crimes of murder and rape, would register four times a year.
The cost of registering would go from $34 a year to $50. Local agencies would keep $10 of that, and the rest would go to the state.
The state Department of Safety estimates the proposed legislation would cost the state at least $100,000 the first year to update computer software and add an employee to handle the new registration requirements.
The bill was assigned to a subcommittee yesterday for further discussion.
2008-02-05: Criminal Justice and Public Safety Committee public hearing
The public hearing for this bill was held before the Criminal Justice and Public Safety Committee on 2008-02-05 at 10:30. Laurie, Jeremy, and Mark attended, along with Denis Goddard, Research Director of the New Hampshire Liberty Alliance, and a few other NHLA activists.
Rep. Cynthia Dokmo
testified to the committee first, explaining the purpose of HB1640 in detail. Mark Warden was the first member of the public to be called to testify, and he gave detailed testimony as to the money issues with this bill. An excerpt:—
With the latest appropriation out of Congress for [the Byrne Grant] program being slashed by 67%, the amount left for states and municipalities has decreased substantially. And of the money that will continue to come in, we only stand to lose 10% of the amount if we are not in compliance. By my estimation, that forfeited amount will only be about $75,000. Yet the fiscal note on this bill from the department states that these changes will cost over $116,000 the first year, along with additional costs of compliance and personnel ad infinitum.
Spending $116,000 to keep $75,000. Need more be said?
Aparently Rep. Roger Berube
thought so, because he asked Mark a series of pointed and rather rude questions as to why Mark was “really” there, implying ulterior motives of some sort.
Next up, Ann Rice from the Attorney General’s office testified, noting in part that their office understands that this legislation will not, in fact, protect children, and that compliance with Adam Walsh is only one of the bill’s purposes. Rep. Jordan Ulery
quizzed her on some of the financials, to which she had no particularly decent answers.
Jeremy Olson testified as to the inconsistencies in the bill which will possibly cause the federal government to label New Hampshire noncompliant with Adam Walsh, then explained how the onerous requirements placed upon sex offenders, coupled with keeping all sex offenders registered for life, is most likely unconstitutional under Part I, Article 18 of the New Hampshire Constitution:—
[Art.] 18. [Penalties to be Proportioned to Offenses; True Design of Punishment.] All penalties ought to be proportioned to the nature of the offense. No wise legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. Where the same undistinguishing severity is exerted against all offenses, the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do the lightest offenses. For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate mankind.
No wise legislature, eh? He also mentioned that, as the registry and its requirements become more and more punitive, it becomes harder and harder to justify the registry as a mere “administrative” process, and thus New Hampshire could soon find itself facing challenges under Article 23:—
[Art.] 23. [Retrospective Laws Prohibited.] Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses.
Rep. Berube, who no doubt swore an oath to defend the Constitution when he took office, was seen shaking his head in disgust during the testimony. Is it any surprise that Rep. Berube’s NHLA Liberty Rating for 2005 and 2006 was 
, and in 2007 dropped to ? One begins to wonder what true motives Rep. Berube has for running for office—certainly not doing his sworn duty of defending the Constitution!
Rep. Gene Charron
provided further defense of the bill afterward, answering some of the constitutional issues and reiterating the multifarious purposes of HB1640.
Laurie gave the following testimony:—
HB1640 is New Hampshire’s version of the federal Adam Walsh Act. The study committee for classification chose to adopt a statutorily defined system instead of going with true individual classification. Under the proposed bill, my family will be unable to seek full relief from the registration system, even though the Adam Walsh Act allows for it in cases of statutory rape where the ages of the individuals involved are within four years of each other. The bill as proposed is only willing to allow someone to be removed from the public list, instead of complete registration removal—even if he or she no longer poses a continuing threat to public safety.
If this bill passes in its current form, my family will be forced to move to another state that recognizes the difference between sex crimes and the individuals that commit them, and allows for complete removal. We will be political refugees in our own country: something I never thought would be necessary in America. My children are scared and confused when we stop by the police station “so Daddy can have a chat with the police” when we go on vacation. This can no longer be tolerated and I beg you to recognize the collateral damage and unintended victims these laws are leaving in their wake. My children will have to leave their school, their friends and the neighborhood they love. Their grandmothers will no longer live fifteen minutes away and they will no longer have the weekly presence of their Grammy or Nana in their lives.
My husband and I do not wish to leave our New Hampshire roots behind, our families, and our friends. We love New Hampshire and we’d love to stay. But we cannot continue to allow our children to suffer in the state of NH if they do not need to suffer for his sake in another state. I am asking you to make the necessary changes to HB1640 that will allow my family and others like us the hope of staying in New Hampshire, where we belong. I am asking that you meet the mandates of the Adam Walsh Act and allow for a four-year age difference removal—not just from the public list, but from registration completely. Not in fiteen or twenty-five years, but immediately, as the Adam Walsh Act allows.
A woman from Derry testified after Laurie, asking the committee to pass HB1640 because one of the provisions of this bill is to require disclosure on the public registry that an offender murdered their victim in the commission of a sexual assault—a requirement that would have helped the recent situation in Derry where a registered child rapist–murderer, Douglas Simmons, moved into the town. Our position on this element of HB1640 is neutral: We would have no issue with such a requirement being passed as a separate piece of legislation. The purpose of sex-offender registries is to protect communities against the truly dangerous, a label which we have no problem applying to child rapists–murderers.
Denis Goddard of the New Hampshire Liberty Alliance testified in opposition of the bill next, explaining to the committee that there is no such thing as a private database—if sex offenders are kept on any database whatsoever, wherever, that information will eventually be made public through accident or break-in.
After the committee had heard from all scheduled speakers, Ryan Marvin, a private citizen from Deerfield, gave impromptu testimony to the committee reminding them of Rice’s testimony: that this bill will not actually serve to protect children, so why bother?
Afterward, Laurie and Jill Rocky of the State Police, who was there in support of the bill, were interviewed by WMUR.