Plan would trim sex offender list

1-10-2010 South Dakota:

Removal option would apply to certain lesser crimes

As it is now, Tacy Chrispen's son probably will spend the rest of his life on South Dakota's sex offender registry.

The then-18-year-old high school senior's crime: Having consensual sex with his 15-year-old girlfriend, who was 3 years, 23 days younger.

Because of that age difference, and the fact that she was younger than 16, he was convicted of statutory rape, spent a year and a half in prison and now is classified as a sex offender.

It is this kind of situation - described by some as a "Romeo and Juliet" story, that has spurred state Sen. Gene Abdallah to push for a change in the law.

He and others, including prosecutors, think it's unfair to treat people convicted of less serious crimes - such as Chrispen's son - the same as people convicted of rape and other heinous crimes. Currently, both types of convicts appear side-by-side on the registry of sex offenders on the Internet, and most stay on the list for life.

But under the plan being proposed by Abdallah and a legislative committee, the state would move to a three-tier system to classify sex offenders, and those convicted of lesser crimes would have a better opportunity to get their names removed from the list.

An Argus Leader analysis of the sex offender registry data shows that 18 percent of the 2,600 people on the list in December were convicted of less severe crimes and could qualify to be placed on the lowest level.

More than 10 years has passed since the convictions of 40 percent of the possible Tier I offenders, making them potentially eligible for removal.

Under the tier system, those convicted of rape or other severe crimes would be placed on Tier III of the registry for life. Those convicted of crimes on Tier II, such as possession or sale of child pornography, would have to be on the list for at least 25 years before they could petition for removal. People convicted of less severe crimes, such as indecent exposure or statutory rape, could end up on Tier I for at least 10 years.

A legislative study committee led by Abdallah that met four times last year produced eight proposals that seek to change the state's sex offender laws. But it is the bill that contains the tiered setup that has gained the most attention.

'False sense of security'

the state's current system, in which all offenders are required to register for life and all are placed on the same list online is a broad-brush approach that is ineffective in letting people know which offenders are truly dangerous, said Ryan Kolbeck, president of the South Dakota Association of Criminal Defense Lawyers.

"I think the sex offender registry gives us a false sense of security because we cannot determine who is or is not a real threat," he said.

The proposed three-tier system, as outlined in Senate Bill 12, would address that problem and has gained widespread support among lawmakers. A recent Associated Press survey shows that two-thirds of all lawmakers support the legislation.

But it is not without its doubters, including Attorney General Marty Jackley.

Some skeptics consider the tiered proposal too lenient, some are worried it will become a logistical nightmare for the court system, and some think it will create much more work for law enforcement officers.

"My preference is to have our scheme remain the same with a loosening on statutory rape and certain juvenile offenses," Jackley said.

He favors keeping what would qualify for Tier II offenses under the proposal, such as the manufacturing of child pornography, incest and solicitation of a minor, together with Tier III offenses and require such offenders to remain on the registry for life.

Abdallah, who is retired from 25 years in law enforcement, insists he is not soft on crime: "I have no sympathy for sex offenders whatsoever."

He acknowledges that the proposals will be changed once the legislative session begins.

It must be decided whether an offender on Tier II could petition for removal 25 years after conviction or 25 years after initially being placed on the registry, which was created in 1994.

It also hasn't been decided how the offenders will be placed on the tiers.

The bill now reads that all current offenders will be placed on Tier III and will have to petition the courts be placed on a lower tier, in addition to petitioning the court for removal from the list at the appropriate time.

That process would mean a lot more work for the court system, Jackley said.

Meeting federal law

Part of the reason for the push to change state sex offender laws stems from the desire to comply with federal law. The Adam Walsh Act was enacted in 2006 and mandates the three-tier system.

Named after the son of John Walsh, host of the "America's Most Wanted" television program, the act requires states and reservations to meet several requirements, such as that offenders register quarterly. States must be in "substantial compliance" by July or risk losing up to 10 percent in certain law enforcement assistance money, which for South Dakota totaled $87,000 last year.

The problem is that state officials don't exactly know what "substantial compliance" means.

"The federal government has never defined what substantial compliance is," Jackley said.

While changes to the sex offender laws aim for more fairness and compliance with federal laws, members of the study committee also want to ensure that South Dakota law discourages offenders
from other states from moving here.
"It is our intention as a committee to make the laws as tough or tougher as any other state," Abdallah said.

But that could cause problems.

Enforcement issues

The committee is proposing to apply the most severe registration laws on the offenders convicted in other states. For example, an offender convicted in Georgia would have to stay 1,000 feet from a school here, instead of the 500 feet as provided for in South Dakota law, because Georgia's law is more strict.

While Sioux Falls Police Department Captain Greg VandeKamp understands legislators' reasoning, he is worried about the increased workload.

"It becomes, on the street level, very difficult to enforce," he said.

It already is a full-time job monitoring offenders, and it is difficult track the 500-foot community safety zones around town, VandeKamp said. Making Sioux Falls police track laws from other states to apply to certain offenders would be very difficult, he said.

My concern was if we do make changes, that we end up with changes that are enforceable," he said.

Study committee member Rep. Peggy Gibson of Huron said there are too many people on the registry who don't belong, and that limits the effectiveness of the list.

"What happens when you have too many on the registry, the real violent ones are not watched as closely as they need to be," she said.

Chrispen, who spoke on the condition that her son's name not be used, said her son, now 22, should not be lumped in a category with pedophiles or rapists. His victim was his girlfriend of more than seven months. He spent Christmas with her family, the sex was consensual, and the charges came only after an acrimonious breakup, she said.

"But they are treated the same when you looked at the sex offender registry," Chrispen said.
"To me, they need to look at every case, they are not all black and white."

Gibson agrees and points to the case of Jose Delgado as another person who does not belong on the sex offender registry.

Delgado was 37 when he was was convicted of sexual contact with a minor in 1983 for touching a 13-year-old female. He spent six months in the county jail. The Huron man eventually moved on with his life, got married and had three children. Then, in 1994, when the state introduced the sex offender registry more than a decade after his conviction, he was required to register.

'My kids ... pay for it'

If he had known that a public registry would be created, he said, he never would have had children. "Now I've been married for over 20 years," an emotional Delgado said. "My kids have to pay for it."

Delgado's wife, Jody, said the situation has been the hardest on their 17-year-old son, Aaron. When the registry was posted online, he was first approached by his hockey teammates in the locker room.

Their response came in the form of taunts such as, "So, Delgado, I heard your dad raped somebody."

"I don't know what to say to that," Aaron Delgado said.

But he has learned to deal with the questions.

"I can't do anything about it. They have it online. You can't break the Internet," he said.

Besides, Aaron Delgado said, he knows his dad is not a bad person.

"He's just another normal person. You can't judge a person by their past anyway. People can change and not a lot of people like that concept."

Gibson has spent time with the Delgado family and wants Jose off the list.

"He's been clean ever since," she said of the 63-year-old Delgado. "He is a viable member of society."

Other than the 1980s conviction, Delgado's record consists of only a few speeding tickets.
Opportunity to petition

There is a provision in the law that a sex offender convicted of statutory rape can petition the court to be removed after 10 years on the registry if they meet certain criteria, such as compliance with registration. To date, no one has gotten off the registry through this provision.

The restrictions are too limited and too costly for offenders to petition, Kolbeck said.

Adjudicated juveniles also can petition the courts to be removed from the registration if they think they do not qualify and if their sentence was discharged.

The proposed legislation would loosen the requirements and give offenders such as Delgado an opportunity to petition for removal.

It's a provision that concerns Jackley.

"It lightens what the review standard is," he said.

But for Delgado, removal from the list would lift a heavy burden.

"It's like they would take 100 years off my shoulders," Delgado said. "If this does happen, the feeling would be like a free man again." ..Source.. Megan Luther