Sex offender act might not be worth its cost to Nevada

By Abigail Goldman

Sunday, Feb. 15, 2009 | 2 a.m.

The Adam Walsh Act was an instant controversy in Nevada. As soon as state lawmakers adopted the federal sex offender legislation in 2007, lawyers drew up lawsuits that have kept it tied up in court to this day.

But all the debate between advocates and attorneys over whether the Walsh Act is legal or logical now seems for naught. In this economy, the real question is not whether the Walsh Act is constitutional, but whether it’s too expensive. By many calculations, it is.

Sex offender management boards in California and Colorado have recommended their states reject the Adam Walsh Act — which changes the way states track and monitor sex offenders — in part because of the crippling cost. Other states, including Florida, Iowa, Virginia and Texas, are also doing the math and finding that the federal standard seems more expensive to adopt than to ignore, no matter the penalty.

And there are penalties. States have until July 27 to become compliant with Walsh sex offender regulations or risk losing federal finding. In Nevada, meeting the deadline could safeguard hundreds of thousands of dollars.

But carrying out the provisions of the Walsh Act could cost millions. In a state where the budget is beyond tight, we don’t know what the Walsh Act would cost. While states around us scramble do to the math, nobody in Nevada is crunching the numbers. So with the deadline for compliance looming, no one knows whether Nevada going to spend millions to save thousands.

Part of the reason Nevada doesn’t know how much Walsh will cost may lie in the state’s speedy adoption of the federal act. Nevada is one of eight states that passed Walsh regulations after Congress approved them in 2006. The vast remainder of states instead chose to evaluate the Walsh Act, considering its constitutionality first and then its cost.

Concerns now coming to light in these states were barely discussed in Nevada. Instead, issues with Walsh are being worked out in Nevada courts as a result of those lawsuits levied against the act.

One was filed by the Clark County Public Defender’s Office on the grounds that Walsh unfairly affects juveniles and the other by the Nevada ACLU on the grounds that the law violates due process rights and protection from retroactive punishment. Until these cases are resolved, the state has been barred from enforcing Walsh.

And with the future of Nevada sex offender laws in limbo, government agencies aren’t using their calculators. Why compute the cost of a program that may never come to be?

Attorney General Catherine Cortez Masto, whose office introduced the Walsh Act to Nevada’s Legislature in 2007 and has been defending it in court ever since, said it’s up to the agencies that would be affected to figure out the costs. But representatives of these agencies said nobody is running numbers while the law is stalled in court.

To understand what kind of money Nevada might end up spending — if the law weathers court challenges — we can only look to the calculations of other states. In California, the Sex Offender Management Board came up with an initial assessment of $38 million. Missing the deadline, by comparison, would cost $210,000.

“This is an unfunded mandate,” the board’s chairwoman, Suzanne Brown-McBride said. “There are massive expectations of changes from federal legislation but really no attempt to significantly fund it.”

This complaint has come up before, most notably when the National Conference of State Legislators released a statement last year objecting to elements of the Walsh Act and complaining that it was “crafted without state input or consideration.”

California, though, has a much higher population of sex offenders than Nevada. So perhaps a more apt comparison for Nevada is Virginia, where officials figured it would cost $12.4 million to carry out the Walsh regulations, or $400,000 not to. Or consider Florida: about $3.2 million for Walsh, versus a $2.1 million to $2.8 million penalty for missing the deadline, if not rejecting the sex offender legislation outright. Each state used its own formula, and each came up with the same answer: It would cost more to adopt than to ignore.

So why is the Walsh Act so expensive? Because it would drastically change the way states manage sex offenders. The risk of each to re-offend has to be reconsidered and reclassified. Nevada sex offenders are classified by tiers — the higher the tier, the higher the risk to re-offend. The higher the risk, the closer a sex offender is supposed to be monitored by parole and probation officials. The closer the monitoring, the greater the cost to taxpayers.

Tier is determined by a psychological evaluation of the offender, an assessment of his crime, history and mind. Walsh would replace this system with a tier calculation based solely on the nature of the crime. This new system would turn many sex offenders who have been deemed low-risk into high-risk offenders overnight. Estimates vary, but Clark County parole and probation officials have said the number of Tier 3 offenders, those posing the highest risk, could jump from fewer than 200 to more than 2,000.

There are other provisions in the act, all designed to create a national, uniform system of monitoring and tracking sex offenders. Proponents of the law say it allows for more protection of children from molesters. Critics say the provisions are aren’t just or effective. But both sides of the debate, it appears, can agree Walsh will cost money.

Even John Walsh, the host of America’s Most Wanted, after whose abducted son the law is named, told The New York Times the price tag has become a problem. Walsh, the Times reported, “suggested Congress postpone the compliance deadline. Mr. Walsh said the many obstacles — most recently the recession, which has made it tough for some states to pay for the law’s provisions — need more time to be worked out.”

Not a single state — including the eight that adopted Walsh regulations — has been deemed “compliant” with the law. And noncompliance means a reduction in funding once the deadline passes.

So how much does Nevada stand to lose? It’s another question that nobody, frankly, has an answer for. When the Walsh Act was passed, the penalty for missing the deadline was 10 percent of a federal grant called the Byrne/JAG fund. In 2007, Nevada got about $2.9 million in Byrne funding. In 2008, that number was cut to just over $1.14 million.

On Thursday, the latest draft of the federal stimulus package included $2 billion for Byrne grants nationwide, which meant Nevada could be awarded an estimated $4 million to $8 million in Byrne money, according to Michelle Hamilton, chief of Nevada’s Office of Criminal Justice Assistance. This would mean Nevada risks from $400,000 to $800,000 for failing to adopt Walsh in time — a bigger carrot to chase, but maybe not big enough.

Nevada Corrections Department Director Howard Skolnik told the Associated Press in 2008 he would need at least $500,000 in emergency federal funding to comply with just one element of the Walsh Act: getting DNA samples from every incarcerated sex offender before release from prison.

The Justice Policy Institute calculated that putting the Walsh Act into place would cost Nevada more than $4 million.

But there are myriad additional costs that cannot be estimated. Because the Walsh Act comes with stiffer penalties for sex offenders, a Florida study of Walsh costs noted that “there may be an impact on the court system and county jails. There may be more trials and less pleas ... there may be an increase in failure-to-register cases.”

And then there is the cost Nevada has paid, not to adopt Walsh, but to defend it.

Cortez Masto’s office has spent months fighting Walsh challenges in court. The Clark County Public Defender has spent months fighting Cortez Masto. No matter who wins, the state has spent considerable amounts just arguing over it. This does not include the case filed by the Nevada ACLU, or the fact that the civil liberties organization won $145,000 in attorney fees from the state last month.

Cortez Masto’s office has been working with the ACLU and other stakeholders to introduce legislation changing certain elements of the Walsh Act during the 2009 legislative session. But this effort to appease all sides presents its own problems. Any changes made to the law probably won’t satisfy the Justice Department, whose understanding of Walsh compliance appears to be nothing short of strict, absolute adoption of the federal act as written.

States still working out the complications of Walsh can file for two one-year deadline extensions. Cortez Masto said her office was planning to request a one-year extension, though a representative of the Justice Department said Friday it had not received the extension application. Extra time to work on Walsh should prevent Nevada from being immediately penalized, though it doesn’t resolve the central question, which is how much it would cost to adopt Walsh, and whether it’s worth the price.

Walsh could be complicated and costly enough to prompt politicians in the states where the act has not yet been voted on to simply decide they aren’t interested. And if this happens, the entire purpose of the Walsh Act, which was to create a national, unified system for dealing with sex offenders in every state, could be undermined — leaving Nevada, as an early adopter, with its hands tied.