Loopholes Plague State Sex Offender Registry

2-11-2011 New Mexico:

This is the first in a three-part series examining the state's sex offender registry

When Richard Hill, 67, was sentenced last July on charges that he sexually molested a young girl, his victim told state District Court Judge Stephen Pfeffer she had been used “like a tool.”

“The word ‘love’ no longer has any meaning to me,” she told the court. “He took all that away from me.”

The victim recounted the sex acts she was forced to undergo for the man who, even prior to sentencing, denied he had done anything wrong. The victim said she forgave Hill, but it was a mental evaluation saying he was unlikely to re-offend that gave him the break few convicted sex offenders get in New Mexico.

Hill was convicted of molesting and raping the girl for a period of five years, beginning when she was 8 years old. But because of that mental evaluation, the court allowed Hill’s record to be wiped clean if he completes probation. That means Hill, of Santa Cruz, is now living free from a system that would otherwise tell his neighbors about his conviction.

A conviction on sex-related charges can, and often does, brand offenders with a label that sticks with them for life, marking them forever in a statewide online database where they can be tracked and scrutinized by police and neighbors.

On its face, the registry is an inescapable system for most of the 55 offenders in Rio Arriba County. Their crimes have been singled out by the government so the offenders can be identified and tracked by anyone with an Internet connection. The consequences for not obeying their responsibilities, such as checking in with a sheriff’s deputy or submitting DNA to a state database, could mean additional time in prison.

Law enforcement plays up the registry’s effectiveness in protecting the public.

“I’m sure a few (offenders) slip through the cracks,” former Santa Fe County sheriff Greg Solano said last October. “If they do, they’ll pay the penalty.”

But underneath that harsh-sounding exterior is a framework of loosely joined state and federal laws; unfunded mandates; threats from the federal government to pull grant money; offenders who struggle with psychological problems, including thoughts of suicide; police who are not aware of the law’s specifics; jurisdictional problems with tribal governments; and an occasional legal loophole in which a convicted offender can slip through without having to notify the public.

“Eventually this system will implode,” said Lloyd Swartz, himself a registered sex offender in Albuquerque who now lobbies against expanding New Mexico’s registry database. “It’s not sustainable.”

General Treatment

Enforcement of sex offender law in New Mexico relies on a partnership between state government and county sheriffs, built on the reasoning there’s a risk the offender could go out and re-offend, according to state statute. The law forces sex offenders to report their addresses to the local sheriff’s department. The sheriff’s department has to track them, and the state keeps a searchable online registry of offenders, as mandated by state law. People without an Internet connection can visit the sheriff’s department in person to learn if any registered sex offenders are living near them.

The process works like this, according to state statute:

After release from prison, sex offenders have the threat of more jail time hanging over their heads for not entering the registry. They have to meet with deputies on a regular basis in a process outlined by state law or they will be entered into the database as an “absconder,” and a warrant will be issued for their arrest, which could send them back to jail for another 18 months.

A sex offender has 10 days after being released from custody of a jail, or after he is placed on probation or parole, to register with the county sheriff’s department. The offender has to give information that includes his name, date of birth, social security number, address and place of employment, as well as the date, location and type of his conviction.

Offenders also have to provide written notice of their conviction to their employer or the dean of their school, if they’re attending school in the state.

The sheriff’s department then takes a physical description of the offender and a sample of his or her DNA, which is put into the state sex offender DNA identification system, which can be accessed by local, state and federal law enforcement agencies.

From then on, the offender has to tell the county when he moves within 10 days. This includes “temporary” living locations such as a shelter or halfway house, if the offender is homeless.

The law requires people convicted of lower-degree felony sex offenses to register and check-in every three months for a period of 10 years, but if the registrant is convicted again they have to register for the rest of their lives. People who commit certain types of violent offenses, such as rape, have to register for the rest of their lives. There is also a push under new federal standards to make the minimum registry period 15 years in the state.

Convictions Erased

The first link for the government to get someone onto the registry begins at sentencing, but there is a loophole a convicted sex offender can slip through before the case is even over, according to First Judicial District Attorney Angela Pacheco.

Though Pacheco called it “rare” in her experience, a judge can give a defendant a “conditional discharge,” meaning a charge could be erased from a convict’s record if he complies with the conditions of probation or parole without re-offending.

This means the defendant does not have to go on the registry once he’s released, Pacheco said.

This scenario played itself out in Hill’s case. A recording of the proceedings and court documents tell the following story:

Hill’s plea agreement ordered a suspended sentence of five to 20 years if he could complete five years of probation. Hill’s attorney, Joseph Campbell, asked for a conditional discharge, supporting his request with a doctor’s report which stated Hill was not likely to re-offend. Still, then-assistant district attorney Jennifer Padgett said in court she was opposed to the conditional discharge.

Pfeffer, citing the report, granted the conditional discharge request. He declined to comment on the ruling for this story, arguing Hill had not served his five years of probation yet so the case was ongoing.

In this case, the prosecution opposed the discharge, but Pacheco said things like that can sometimes be used to reach a plea agreement in a case. She also pointed out Hill would be in more trouble if he violated the terms of his release.

“A conditional discharge is a gift,” she said. “But you can blow it.”

Keeping Track

Rio Arriba and Santa Fe Counties have a combined 165 sex offenders scattered across thousands of square miles, but in each county the job of keeping tabs on them falls on a single deputy in that county’s sheriff’s department. Each deputy in charge of their respective county said keeping up can be difficult.

Santa Fe County Sheriff’s deputy Deborah Anaya runs her department’s registry on top of her job as a criminal investigator. In Rio Arriba, the job was performed by former lieutenant Manuel Valdez, who left the department with the Jan. 1 change in administrations. Valdez had been keeping tabs on every sex offender entering and leaving Rio Arriba County since 1998, but in his opinion, it’s not a one-man job.

Much of the responsibility for registering falls on the offenders themselves, who are required to meet with the sheriff’s deputy in charge every 90 days or possibly face a felony charge of absconding from the registry.

But Valdez’s and Anaya’s jobs go further than that. Valdez said he needed to check that the offenders are living where they say they are, a process called validation.

“It’s a full-time job,” Anaya said. “It really is.”

But keeping tabs on the offenders has to be done alongside other jobs. Valdez said he had contacts with other departments in Rio Arriba County who sometimes helped by validating offenders for him.

However, questions also arise over this validation process. One offender has an address listed in the phone book different from the one in the registry. Two other offenders interviewed for this story, one of whom has been free for several years, said a deputy never knocked on their doors to talk to them, which Valdez confirmed.

In keeping tabs on sex offenders, state Public Safety Department Special Programs Supervisor Regina Chacon said state laws have improved over time.

But in the experience of one Rio Arriba registrant, the laws put in place don’t matter as much as the people charged with enforcing them. He said how the police exercise their authority can mean the difference between serving his sentence by meeting with people like Valdez, an officer he described as a “good guy,” and embarrassing situations in which he feels his rights were not being respected.

“They started up all kinds of (expletive),” the man said of a run-in with Española Police officers “about a year ago” while trying to pick his step-son up from school.

The registrant, who asked to remain anonymous because he has children in school, said he was picking up his stepson from school when he saw his parole officer speaking with an Española officer.

“They talked to the school and said, ‘Hey, do you know there’s a convicted sex offender driving around on your property?’” the registrant said. “The police said I was not allowed on campus anymore.”

Valdez and Chacon each said there is nothing in state law that requires registered sex offenders to stay a certain distance away from a school.

On his way home with his son, the registrant said he was pulled over by city police, who said they wanted to verify that the boy in the vehicle was actually the registrant’s step-son.

The registrant says he can appreciate the police following up on a call, but said it’s their job to know the law.

“It’s trampling on my rights as well,” he said.

This is important to the registrant because he was convicted 20 years ago in Utah of raping the mother of a man he had been feuding with when he was 17. Today, he calls that the worst decision he made in his life, one that forced him to grow up inside prison. He’s been through counseling and has a family now. He feels he has been rehabilitated.

“I’ve talked about this so many times,” he said of his crime. “It was part of the process of being involved in prison. What I did was very shameful and very bad. I learned to separate who I am now from what I’ve done.”

‘Unfunded Mandate’

In his years doing the job, Valdez said he saw changes in the registry law give more responsibilities to the sheriff’s department. People have to register more frequently for more crimes and for longer periods of time, he said. Valdez said that means sheriff’s departments throughout the state are being burdened by the government without any corresponding help.

“It’s an unfunded mandate,” Valdez said.

Sheriff’s departments are also required to notify a school whenever an offender moves within a one-mile radius. They also have to be in contact with other states to find out when an offender moves into their county or when one of their offenders notifies them that they are moving to another county or state.

Valdez said he was required to notify a school in-person if a convicted sex offender moved in nearby, but he did not have to do this for the offender’s immediate neighbors. The responsibility for learning about that falls on the neighbors themselves.

To do that, the state Public Safety Department keeps a searchable database of 2,572 sex offenders living in New Mexico, which can be found on the state’s website. These offenders also can be found on a national database of every sex offender in the country for states that comply with new federal regulations.

State law does not allow citizens full access to information about all of the registered sex offenders in New Mexico; there are more than 100 additional sex offenders, 2,694, in the state than are currently on the state’s website.

According to Chacon, who runs the state’s registry, this is because several of the offenses recognized by law are not required to go up on the state’s site. Most of the registrable offenses include violent crimes, or crimes involving children, while statute does not require registry for crimes like incest.

However, the website also overlooks some crimes that can involve children, such as aggravated indecent exposure. Enticing a child, or trying to get a child to enter a vehicle or a secluded place with the intent to commit a sex crime, is also not a searchable offense on the site.

As part of the law, a sex offender is also required to disclose where he works, but sometimes the public does not get that information, either. Chacon said state law allows sex offenders to submit proof, often in the form of a letter from their boss, to show their line of work does not bring them into contact with children. ..Source.. Bill Rodgers, SUN Staff Writer

Part two of this series examines the legal, financial and political pressures behind the state’s system for dealing with sex offenders.