Since Feb. 10, 2009, the state's Sexual Offender Classification Board has been sidelined by an Idaho Supreme Court decision that declared Idaho's process for violent sexual predator designations unconstitutional.
In that time, at least eight sex offenders who had been referred to the board for VSP hearings have instead been released from prison without review. A committee of the Idaho Criminal Justice Commission--headed up by a representative of the State Appellate Public Defender's Office, which helped overturn the VSP provisions in the Smith v. State of Idaho case last year--has been studying the statute. But it will not recommend changes to the Legislature this year.
It will be 2011 at the soonest before Idaho attempts to bring the VSP designation into compliance, reactivating the program. VSP designations are applied to sex offenders who are highly likely to re-offend, not necessarily those whose crimes are perceived as more violent. They are held to more stringent registration and oversight rules than other sex offenders.
"There were eight people who were not reviewed, who potentially could have slipped through the crack," said Kathy Baird, administrator of the SOCB. "I do believe that there is concern about nothing being done, but the legislation just hasn't been ready for this session."
Idaho's VSP law passed in 1998 to comply with the federal Jacob Wetterling Act and Megan's Law. Since that time, the SOCB has reviewed 93 VSP cases. It declined to designate 13 as VSPs, tabled two for future review, and one designation was overturned, according to Baird. Six VSP hearings have been vacated due to Smith, in addition to approximately eight that were never initiated.
Even counselors who treat sex offenders agree there is some use in identifying those who are high risk for re-offending, though the designation must come with more than just a label.
"If we've got a guy who is a very high risk offender, I think it would be well for us to identify that person and have that person under scrutiny," said David Ferguson, a counselor who also serves on the Judicial Council's VSP subcommittee.
But Ferguson also wants to see more treatment and says that recidivism rates for sex offenders are lower than most people think and lower than any other crime except murder.
"It doesn't define who they are," Ferguson said. "It defines what they did, and they can get on the other side of that."
Even before the Smith decision, which said that sex offenders have a right to meaningfully defend themselves before the SOCB, Idaho was working on revising its sex-crime laws.
That's because a decade after Wetterling and Megan's Law, which established predator designations and public sex offender registries, Congress passed a new sex-crime law, the Adam Walsh Act, which establishes national standards and a three-tiered designation for sex offenders. Idaho, along with the majority of states, has gotten an extension in implementing the Walsh Act and may ask for another extension.
"We want to make sure that as we take these steps, we're taking the entire sex offender treatment universe into account," said Brent Reinke, director of the Idaho Department of Corrections.
The department has contracted with the Center for Sex Offender Management, a national clearinghouse for sex offender research and policy, to help rewrite its sex-offender laws. CSOM has already completed a review of Idaho's regulations and will be in the state next month to interview people who work with sex offenders before making recommendations later this year.
Reinke said he's also concerned that Idaho's VSP program is not functioning, but that he's worked with the Idaho Sheriffs' Association to make sure that sex offenders--including potential VSPs, who often top out, meaning they are held for the full length of their sentence and are not eligible for parole--register properly when released from prison. They will present this stepped-up registration process to the Justice Commission soon.
Idaho Sen. Denton Darrington, chairman of the Senate Judiciary and Rules Committee, and Rep. Jim Clark, chairman of the House Judiciary and Rules Committee, are both involved in the Criminal Justice Commission process, along with the Attorney General's Office, Corrections, prosecutors and medical professionals.
Heading up the VSP committee is Molly Huskey, an attorney with the Appellate Public Defender's Office in Boise. The Smith decision requires changes to some two dozen Idaho statutes and rules, and the committee wants to be sure to "provide sufficient due process such that if they are designated as a violent sexual predator, that the due process protection will legitimize the designation," Huskey said.
That includes providing full documentation to offenders, writing clear and objective criteria for VSP designations, allowing offenders proper counsel and access to witnesses and experts, and other changes.
Huskey said that even if offenders are not being put on the VSP list at this time, they still must register as sex offenders.
"The purpose behind a VSP designation is to make sure that the community can access information to keep themselves and their community safe," Huskey said.
Steve Bywater, the deputy attorney general working on both the VSP and Adam Walsh legislation, said there is a growing consensus among all the parties, including prosecutors and defense counsel, on fixing the statutes.
But there is one additional issue that could still foil the entire process: The cost.