Stories written by Jo Ciavaglia, award-winning multimedia newspaper reporter at the Bucks County Courier Times in Bucks County, a suburb of Philadelphia, Pa.
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Just under 2,100 Pennsylvania newborns whose mothers had Medicaid were diagnosed with narcotics withdrawal syndrome last year, but only 972 infants were reported to county child welfare authorities as having been exposed to drugs in the womb.
In 2015, the first year the state broke out data for those substance-exposed newborns, 707 infants were reported to child welfare as being exposed to narcotics, but 2,350 babies were diagnosed with withdrawal from narcotics, known as neonatal abstinence syndrome, according to the statistics from the state Department of Human Services.
Yet no gap should exist between the number of babies diagnosed and those reported to child welfare agencies, since all cases of infants who were exposed to legal or illegal narcotics must be reported to those government agencies under the 2003 U.S. Child Abuse Protection and Treatment Act, known as CAPTA. Before infants are sent home with their parents who might be struggling with drug addiction themselves, the county agencies are required to assess the home environment and create a safe-care plan, including services to drug-dependent parents.
But Pennsylvania's interpretation of the federal law has led to confusion among health care providers about when child protective services should be notified, according to county officials and child advocates.
The Pennsylvania Department of Human Services interpreted the federal mandate to apply only to babies whose mothers took illegal drugs or misused prescription drugs during pregnancy. As a result, health care providers aren't required to report drug-exposed babies born to mothers who were legally prescribed narcotics — like oxycodone or heroin —replacement drugs like methadone — if they took them as directed under medical supervision.
The full extent of the number of drug-exposed newborns in Pennsylvania is unknown because the only data collected is on those covered by Medicaid, the federal health insurance program for the poor and disabled. No agency collects newborn-exposure data on the privately insured.
The prescribed-narcotics exception in Pennsylvania law was intended to reduce the social stigma surrounding parental substance abuse, which discourages pregnant women from entering drug treatment, said Cathleen Palm, founder and executive director of the Center for Children's Justice in Berks County. But the exception created unanticipated consequences, she added.
“It takes the eyes off the baby because you don’t want to punish the mom. But you need to focus on mom and baby. Sometimes parents with a drug history don’t need child welfare in their lives, but if you don’t check, you don’t know,” Palm said. “You’ve really diminished the commitment to the baby in an attempt, rightfully, to not judge the actions of the mom.”
The conflict between the state and federal laws also means some health care providers report all newborn narcotic exposures and others only report exposure to illegal drugs, as evidenced by discrepancies in the numbers reported on the local and state levels, child welfare officials and advocates say.
The number of drug-exposed births at St. Mary Medical Center increased from 185 in 2014 to 270 of the 2,291 Middletown hospital's births last year, officials said. St. Mary reports all drug-exposed births to child welfare, whether the drug the mother used was legal or illegal.
State hospital discharge records show only 93 newborns were reported as being exposed to “illegal” drugs at all three Bucks County hospitals with maternity units during fiscal year 2014-15, the most recent year available. St. Mary didn't have fiscal year data available for drug-exposed births, but a hospital official said the state discharge data was inaccurate.
"In some situations, we can discern between babies born with exposure to legal versus illegal drugs, however, our ability to draw that distinction relies on the mom's health history and a drug screen of the baby, " Dr. Carrie Hufnal, interim director of St. Mary's Neonatal Intensive Care Unit. "A drug screen in and of itself will only reflect exposure to opiates but will not tell us if the exposure is related to prescription or street drug use."
Bucks County Children and Youth received 209 hospital referrals under CAPTA for babies born to county residents last year, up from 129 in 2015. The first six months of this year, the agency received 112 referrals, according to agency director Lynne Kallus-Rainey. But she suspects that there are more births that should have been reported.
"We know not all (drug-exposed) babies are being reported,” Kallus-Rainey said. “We are not totally able to access when, and why, some get reported, while others don't
In Montgomery County, Abington Hospital-Jefferson Health has seen its drug-exposed births increase from 31 to 93 between the 2012-13 and 2015-16 fiscal years. The hospital also reports all drug-exposed births involving prescribed and illegal drugs, but doesn't differentiate between exposures to legal or illegal narcotics, an official said.
Montgomery County Children and Youth Director Laurie O'Connor acknowledged the 114 CAPTA referrals it received from area hospitals last year may not represent all drug-exposed newborns born to county residents, because referrals for drug-exposed infants under age 1 without any hospital record of newborn exposure are classified differently. “It may be suspected that the child was born drug-affected, given the mother’s history of addiction, but without completion of testing by the hospital (at birth) there is only speculation,” O’Connor said.
Palm suspects confusion over the reporting law coupled with a lack of understanding about prenatal drug exposure and its prevalence is responsible for the divergence in reporting.
"No one has really been paying attention to this issue," she said. “There is a big bucket of kids that we may not know if they were prenatally exposed to drugs, so all the provisions of law and the safety mechanism for them may never get triggered.”
State vs. local laws
The state's CAPTA interpretation became legally binding in 2015, when the Pennsylvania Child Protective Services Law was amended. However, Congress updated the federal law in 2016 to clarify that health care providers must refer all cases of drug-exposed infants to child welfare agencies, regardless of whether the exposure was to legal or illegal drugs.
The Pennsylvania Department of Human Services was supposed to submit a plan to the federal government to bring the state into compliance or risk losing child welfare service funding by June 30, but it recently received an extension. The state agency has assembled a group to develop recommendations for lawmakers to amend Pennsylvania's law to bring the state into compliance with the infrastructure and guidance necessary, according to state Rep. Katharine Watson, R-144, of Warrington. As chairwoman of the House Children and Youth Committee, she gets updates from the group.
DHS said there is no timeline to fix the law and Watson acknowledged the state law is failing some babies.
“I’m very much worried about that,” she said. “I have a problem that we knowingly are sending babies home with people who aren’t ready to take care of them.”
Complicating the situation is the fact that not all infants born exposed to drugs will develop withdrawal symptoms, neonatal doctors said. And while symptoms typically appear within 24 hours after birth, they can appear up to 10 days later — long after most infants leave the hospital.
Health care providers say the growing number of pregnant and parenting women who secretly misuse legally prescribed or illegally obtained narcotics complicates their ability to identify drug-exposed newborns.
This year, Abington Hospital-Jefferson Health anticipates delivering 120 drug-exposed babies, said Dr. Joel Sorosky, chairman of the OB-GYN department. Three-quarters of them will be born to privately insured women taking prescribed opioids for pain-related issues — a number that has tripled over the last four years. Some of these women don't tell their obstetrician about the drug use because they don't believe they're drug-dependent, Sorosky said, and most are unaware the fetus can become dependent on opioids in as little as two weeks.
Area hospitals also are seeing pregnant heroin users who self-medicate with opioids like methadone or suboxone they obtained illegally, believing it's healthier for the baby and a way to stay under government radar, health workers and drug treatment specialists said.
If a pregnant woman discloses dependence early, hospitals can connect the family with alternative pain management or drug treatment providers, Sorosky said. At a minimum, neonatal staff can prepare for observation and, if needed, medical intervention, if the infant experiences withdrawal, he said.
"The challenge comes when we are caught unaware and the baby withdrawals," Sorosky said. "Sometimes, the significant other is just as surprised and it creates an adversarial relationship (between the parents). We can avoid that by knowing early on and have a chance to treat the mother and help the baby.”
A Bucks County lawmaker has introduced legislation that would close a loophole in state law that allows some newborns with prenatal drug exposure to fall under the radar of county child protection authorities, violating a 2003 federal law.
Rep. Katharine Watson, R-144, of Warrington, on Friday introduced a bill that would reverse a 2015 amendment to the state’s Child Protective Services Act that created exempted health care providers from reporting infants born exposed to drugs when mothers were legally prescribed addictive narcotics during pregnancy.
“For the sake of the adult, for the sake of that child, I think we need to check on them,” said Watson, who also chairs the House Child and Youth Committee. “At the very best, if you are by yourself, recovery is tough, and add in the responsibility of another human life with it, and I cannot imagine.”
The legislation was introduced weeks after this news organization exposed the dramatic gap between the number of drug-exposed newborns reported under Medicaid and the number of child welfare reports for prenatal drug exposure. The story was part of our ongoing “Born into Addiction” series, which examines the impact of the drug epidemic, led by opioid and opiate addiction, on the lives of children.
Watson, who credited the series with inspiring the legislation, cited data from the series in her co-sponsorship memo.
Our findings — which Watson called “startling" — included data showing that just under 2,100 Pennsylvania newborns whose deliveries were funded by Medicaid health insurance were diagnosed with narcotics withdrawal syndrome. But, only 972 newborns were referred to county child welfare authorities for assessment.
In 2015, the first year the state broke out data for substance-exposed newborns, 707 infants born to mothers on Medicaid were reported to child welfare as being exposed to narcotics, but 2,350 babies were diagnosed with withdrawal from narcotics, according to the statistics from the state Department of Human Services.
None of those numbers include exposed newborns born to mothers with private health insurance because no agencies collect that data.
The gap shouldn't exist under the federal Child Abuse Protection and Treatment Act, known as CAPTA. It requires health care providers to advise child welfare authorities of all prenatal exposure to narcotics or alcohol or infants that show signs of withdrawal. Those authorities are required to assess the infant’s home environment and develop a safe-care plan, which may include services to drug-dependent parents, before a newborn is sent home.
Congress updated the federal law again in 2016 to clarify that health care providers must refer all cases of drug-exposed infants to child welfare agencies, regardless of whether the exposure was to legal or illegal drugs. But the Pennsylvania Department of Human Services has long interpreted the federal mandate to apply only to babies whose mothers took illegal or unprescribed drugs or misused prescription drugs during pregnancy. Its interpretation was made law when it was added to an update of the state’s child protection law in 2015.
As a result, Pennsylvania health care providers involved in the delivery or care of substance-exposed newborn aren't required to report the birth to child protection — and child protection officials aren't obligated to get assess them if the mothers were legally prescribed narcotics, such as oxycodone or methadone.
Medication Assisted Therapy uses opiate replacement drugs as part of drug treatment of pregnant women dependent on synthetic opiods or opiates like heroin. The therapy exposes developing babies to the drugs, which increases their risk of experiencing narcotic withdrawal symptoms soon after birth.
The Pennsylvania Department of Human Services has created a task force to develop recommendations for lawmakers to amend the state law to bring it into compliance with the federal law. It failed to meet a June 30 federal deadline to submit a plan, but received an extension.
“Our state’s laws should not allow the sending of any substance-exposed newborns — or any newborn, for that matter — home with mothers who by virtue of their substance abuse disorder are unable to properly care for the infant or who may put the infant in serious danger,” Watson said.
She emphasized the change shouldn't be seen as punitive against women who enter drug treatment during pregnancy or women in long-term recovery. Watson said she believes her bill strikes a balance between protecting vulnerable newborns and encouraging pregnant women to enter or continue drug treatment.
Child advocate Cathleen Palm agreed the challenge for advocates and lawmakers is finding balance between recognizing the needs of these newborns and parents who may be struggling with addiction. Palm is the founder and director of the Center for Children’s Justice in Berks County.
“I would encourage people to look beyond what we have always done, which is divide ourselves into the 'camp for mom' or the 'camp for the baby,' ” Palm said. “I think we all have to be in the camp for the mom and the baby together.”
Palm said she suspects the bill will give lawmakers the opportunity to talk about issues related to funding for treatment for pregnant and parenting women and related issues such as safe housing and child care, which are the two biggest barriers that prevent women from entering drug treatment.
Rep. Gene DiGirolamo, R-18, of Bensalem, who chairs the House Human Services Committee, and Rep. John Galloway, D-140, of Falls, on Monday said they support Watson’s bill and plan to sign on as cosponsors. Reps. Todd Stephens, R-151, of Horsham, Thomas Murt, R-152, of Upper Moreland, and Bernie O’Neill, R-29, of Warminster are already cosponsors.
“Of course, I'm concerned,” Rep. Scott Petri, R-178, of New Hope, wrote in an email expressing support for the bill. “You would have to be heartless to not want to help newborn children who have become addicted through no fault of their own.”
Matt Bellina is dying. But he hopes he lives long enough to play a game of touch football with his oldest son.
It’s a wish that his 5-year-old son, JP, made on a dandelion he picked during a walk with his dad last year.
“Like any dad, I knew my job was to help him make his wish come true,” Bellina said.
But medical textbooks suggest that Bellina, a 34-year-old father of three from Northampton, is nearing the end of his life. He has amyotrophic lateral sclerosis, better known as ALS or Lou Gehrig’s disease, an incurable and fatal disorder that progressively attacks the central nervous system. Those with the condition eventually lose their ability to speak, eat, move and breathe. The former U.S. Navy pilot can feed himself, but he can no longer write. He uses a walker and a wheelchair to get around.
When Bellina was definitively diagnosed with ALS in 2014 — eight years after he first showed symptoms — his illness was too far along for one federally approved drug for ALS patients and not advanced enough for the other. Clinical trials for new drugs are underway, but Bellina hasn’t qualified for them. Drug companies typically seek participants in early stages of a disease since the approval process can take at least 10 years — double the average life expectancy of an ALS patient.
And while federal law gives Bellina and others with terminal illnesses access to clinical trials of treatments and drugs that haven't been approved by the U.S. Food and Drug Administration, the "compassionate use" process to get that access is time-consuming and burdensome.
“If I’m not going to make it anyway, why shouldn’t I get to try (experimental drugs)?” asked Bellina, who has testified before Congress and campaigned online to get people with terminal illnesses better access to potentially lifesaving drugs.
Right to Try bills, laws
Thirty-seven states and the U.S. Senate agree.
They've passed so-called Right to Try bills and state laws, which are designed to ease the process for terminally ill patients to get experimental drugs and treatments.
Bills are in various stages of action in the Pennsylvania and New Jersey legislatures. However, since state laws can't supersede federal law, they are mostly symbolic.
The U.S. Senate bill, which passed earlier this month, would let terminally ill patients circumvent the FDA’s lengthy "compassionate use" application to get speedier access to experimental drugs.
A patient's doctor could directly request such medications from drug companies that have successfully completed preliminary safety testing, said Starlee Coleman, a spokeswoman for the Goldwater Institute. The Libertarian think tank developed the template on which the federal and most state bills are modeled.
Drug companies would continue to advise the FDA of adverse effects on terminally ill patients as they do on everyone in a clinical trial, but data on "compassionate use" patients couldn't be used against pharmaceutical companies in the drug approval process as it is now, Coleman said. The Senate bill also protects drug companies and prescribing doctors from liability for bad reactions to these experimental drugs.
The House version of the bill, co-sponsored by Bucks County Congressman Brian Fitzpatrick, R-8, of Middletown, was introduced earlier this year and is expected to be voted on by the full House, though there's no indication when. Fitzpatrick described the measure as another avenue to expand access beyond the existing FDA protocol.
“For too many, access to these potentially lifesaving treatments will come too late, or not at all,” Fitzpatrick said in a statement. “Whether it’s a father courageously battling ALS or a brave child living with Duchenne muscular dystrophy, they deserve the right to try.”
Journey to diagnosis
Bellina was 28 and a new dad when a neurologist first told him the symptoms that had plagued him for years might be ALS. He experienced balance problems, persistent muscle aches and hand cramping when he was a Navy pilot flying electronic-warfare jets.
The Navy grounded Bellina about three years after he first noticed the twitching in his hands. In 2012, he was placed on administrative duty and deployed to east Africa and the Korean peninsula to work as an anti-terrorism officer. He medically retired with the rank of lieutenant commander in 2015.
Obtaining his diagnosis was complicated by his youth and lack of a family history of ALS, Bellina explained. When it was finally confirmed in 2014, he was 31. JP was almost 2 and Kip was 2 months old.
Bellina has outlived others with his diagnosis and his doctors suspect he may have a slower progressing form of the disease than most people.
“I’m really lucky to do what I can do,” he said.
And what he can do lately is more than what he could do earlier this year.
Two weeks before his youngest son, Paxson, was born 5 months ago, Bellina started taking an experimental drug provided by a manufacturer he declined to identify. It was the first and only drug company to grant his "compassionate use" out of the nearly 20 he approached.
Since he started the medication, Bellina and his wife, Caitlin, said they've noticed improvements. He can get out of a chair unassisted. He can whistle again. His breathing is better. He has more energy. He no longer drags his feet. And his muscle cramps have eased.
Vomiting, the drug's main side effect, is tolerable.
“When you’re dying, side effects are … eh,” he said.
Longtime state Rep. Robert Godshall, R-53, of Souderton, knows what that's like.
He's the driving force behind the Pennsylvania bill, which was inspired by his firsthand experience as a patient with a terminal diagnosis and no traditional medical options. Twelve years ago, Godshall had an unapproved stem cell transplant for multiple myeloma, a fatal, incurable blood cancer. The FDA age cutoff for the procedure was 65. Godshall was 72.
Now 84, Godshall said he used his political clout to pressure doctors at the University of Pennsylvania Health System to ignore medical protocol. The approval process took two months and involved legal paperwork that absolved the hospital and doctors from liability.
The transplant, which he said his health insurance covered, kept the disease at bay for two years. That was enough time for Godshall to enroll in a Penn clinical trial of a new drug. He was in the trial until recently, when the drug stopped working after 10 years and his cancer returned “full-blown,” Godshall said.
“I don’t think you should have to be in the Legislature to save your life,” he said.
Some medical ethicists, including Art Caplan, argue there is no need for Right to Try legislation.
The FDA has historically approved 99 percent of "compassionate use" requests, which typically number fewer than 2,000 a year, he said, and the agency recently streamlined the process to address time lags. The real obstacle for patients is drug companies that may reject compassionate use requests for a variety of reasons, including fear an adverse effect could delay FDA approvalas it could under current law, he said.
“The decisions are still in the hands of drug companies that have the research and nothing about these laws shapes their willingness to give the drug,” said Caplan, founding director of the medical ethics division at New York University’s Langone Medical Center.
Right to Try laws generally don't address the price of some experimental drugs or require insurers to cover them, or treat people for potential medical complications from experimental drugs, Caplan said. There's no funding to help lower income people afford the drugs or to assist smaller drug companies to make them available, he added.
Finally, Caplan said, using experimental drugs could risk patient eligibility for end-of-life supports, including hospice and home health care — depending on their insurance coverage.
“I don’t see (the federal law) making a wit of difference for access," Caplan said. "It’s nice to pass feel-good laws, but families will quickly find if they want to get drugs from little companies, they may have to pay a lot of money and travel to get the drug.”
Shaquana Green and her toddler daughter disappeared during a weekly Saturday afternoon visit in 2012, an incident that Upper Darby police described in court documents as a custody dispute.
Fewer than three hours later, the girl was found unharmed near where she was last seen and returned to her legal guardian, who's her paternal grandmother, according to court records. Green was arrested for violating a court custody order that barred her from unsupervised contact with her child.
That event is how the 26-year-old Bethlehem woman, a single mother with no prior criminal record, ended up a Pennsylvania sex offender. It’s a life-crippling label that Green wouldn’t have if she lived in any other state.
But when the Pennsylvania Legislature expanded its sex offender law in 2011 in response to federal legislation, it added new crimes, including the one that Green pleaded guilty to in 2013 — interference with child custody. Under the amended law, which became effective in December 2012, conviction of that crime carries a 15-year requirement to register as a Megan's Law child sex offender. There is no exemption for parental custody interference with no sexual abuse.
The result is that at least 34 Pennsylvanians, including one resident in each Bucks and Montgomery counties, whose “primary” offense is the same as Green’s, are on the state’s sex offender registry. This is without any evidence they've been accused of a sex crime, according to an extensive records search of 6,000 active sex offender profiles on the state’s Megan’s Law website, court documents, Sex Offender Assessment Board documents obtained under the Pennsylvania Right to Know Act and media accounts of cases.
After this news organization raised questions about its findings, the Montgomery County lawmaker who chairs the powerful Senate Judiciary Committee and the committee’s legal counsel vowed to draft legislation to fix what they called the law’s unanticipated “serious collateral consequences.”
Sen Stewart Greenleaf
Sen. Stewart Greenleaf, R-12, of Upper Moreland, expressed concern upon learning that people like Green were being listed as sex offenders. He insisted it was never the law's intention to place someone who has never committed a sex crime on the Megan's Law registry.
“That is certainly not an intended consequence,” the judiciary committee chair said. “This has to be fixed.”
At least one-quarter of the 34 Pennsylvanianswere found to benoncustodial parents convicted of violating child custody orders. Others committed unrelated crimes, such as stealing a car in which a child was a passenger. Two people were convicted of interference with child custody in New Jersey, where it’s not an offense requiring sex offender registration. But since it's considered a violent sex offense in Pennsylvania, anyone who lives, works or attends school here must register.
A review of sex offender registration laws in all 50 states found only one other state — Louisiana — includes interference with child custody as a crime requiring sex offender registration. But that state provides a registration exemption if the defendant is the parent of the victim child.
“It’s a disservice to the public,” said Jill Levenson, a social work professor at Barry University in Florida who studies sex offender registration laws. “When you have people on the registry who aren’t sexually dangerous, it dilutes the public’s ability to find out what they need to know to protect themselves.”
Worse, people with no known history of sexually deviant behavior experience wide-ranging consequences, including loss of personal freedom, loss of privacy, and social ostracization, according to experts in sex offender laws.
One woman's experience
Tier 1 sex offenders, like Green, must update personal information with Pennsylvania State Police annually and within three days of changing a job, a residence, a vehicle or a school, according to the law. They must give police a DNA sample and palm prints. They must notify state police when traveling to another state for longer than a week. International travel requires 21 days notification and a foreign country can refuse an offender entry. They cannot have unsupervised contact with children in school settings. And failure to follow the requirements is a third-degree felony.
But the hardships go beyond those requirements, said Green, who now has a nearly 2-year-old son. Her daughter, now 7, remains in the custody of her paternal grandmother, who was made her legal guardian because of Green's admitted mental health problems.
Potential employers are wary of her sex offender status, she said. Landlords are reluctant to rent to her. Daycare center operators don’t want her son. A homeless shelter turned her away. And she said a transitional housing program rescinded her admission after two days because the program’s sponsor was uncomfortable after learning Green was a sex offender.
“The toll it takes on your life, it’s not just registering, it’s everything. It’s the community, all my friends knowing about it, but not understanding. Just constantly having to explain it and be judged about it,” Green said recently. “My life is just consumed by this now. The more I try to talk about it, the more I try to get understanding about it, the more I try to research about it, I just wish I could wake up and it was a nightmare, it’s not true. But it’s reality.”
U.S. act's genesis
What happened in the Pennsylvania Legislature in 2011 started with Congress in 2006, when the Adam Walsh Child Protection and Safety Act became law. The act is named after a 6-year-old Florida boy, son of "America's Most Wanted" host John Walsh, who was kidnapped and murdered in 1981. The widely publicized case was a catalyst for the U.S. child safety reform movement.
The federal legislation urged states to create more unified sex offender registration requirements that encompassed more crimes, including non-sexual "offenses against children " — and to apply those expanded registration requirements retroactively. States that don't “substantially comply” with the law are penalized by cuts in federal funding for crime prevention programs.
Kidnapping and false imprisonment offenses against minors are specifically included in the Adam Walsh Act. Both exempt parents and guardians, but states also can enact more restrictive registration requirements, which is what happened in Pennsylvania.
The original state Senate version of the bill adopting the Adam Walsh Act included parental registration exemptions for interference with child custody, unlawful restraint and false imprisonment of a minor, Greenleaf said. But that bill underwent extensive changes in the House and only parental exemptions for unlawful restraint and false imprisonment made it into the amended bill, which received unanimous approval in the House and Senate.
Dauphin County Republican Rep. Ronald Marsico, chairman of the House Judiciary Committee, wrote and introduced the House amendments. Marsico’s chief of staff, Autumn Southard, said the amendments were based on the advice of legal counsel and follow the federal law’s guidelines.
The attorney who provided that guidance, Gregg Warner, is no longer with the Senate Judiciary Committee and efforts to reach him for comment were unsuccessful. The state Senate library has no record of judiciary committee meetings held on the updated bill.
Patrick Crawley, the current counsel to the Senate Judiciary Committee, said one reason the exemption might have been removed was that it was seen as redundant with the Pennsylvania crimes code, which includes defenses for parents charged with interference with custody of children.
Theories on inclusion
Specialists in sex offender laws suggested that lawmakers might have included the offense because it falls under the broader category of kidnapping by a related person. But none could suggest how including those offenders on a registry benefits public safety.
“Quite honestly, I have no idea why a state would include that,” said Eric Janus, a law professor at Mitchell Hamline School of Law in Minnesota, and a nationally recognized expert on sex offender registries. “Though it clearly has a relation to child protection, it has no obvious relation to sexual offenses.”
Wayne Logan, a professor at Florida State University Law School, theorized that child custody interference falls under kidnapping offenses, a common trigger for sex offender registration. “The rationale being that sex abuse often accompanies the crime,” he added.
Barry University’s Levenson called it “highly, highly unusual” for someone without a sex crime conviction to be on a Megan’s Law registry.
Sex offender registries that include non-sexual offenses confuse the public, added Catherine L. Carpenter, a professor at Southwestern Law School in Los Angeles, and a nationally recognized expert in sex offender laws.
“You get a disconnect between protecting the children because of the crime, and the remedy, which is to track them as sex offenders,” Carpenter said. “This is just, sadly, another example of this broad painting with a broad brush to capture people who shouldn’t be captured.”
Views on the law
Former Montgomery County prosecutor, Rep. Todd Stephens, R-151, of Horsham, said including non-sex offenders on the Megan's Law registry benefits the public because it identifies those who commit offenses against children, which is what Congress intended when it adopted the Adam Walsh Act.
“I do think people who commit crimes against children are a unique subset of criminals, worthy of greater attention," Stephens added. "The federal government expanded (the law) to include more than just sex offenders, so I don’t believe it’s just a sex offender registry since the Adam Walsh Act.
But Greenleaf, who said he voted for the law in 2011 though he didn’t agree with all of it, expressed growing concern that sex offender laws have become far more encompassing than their original intended target: violent and habitual child sexual predators.
The veteran lawmaker said he would like to see the reinstatement of the original Senate exemption for parents convicted of interference with child custody. He cautioned, though, that changing the law would be a “hard push,” in part, because of politicians’ general aversion to scaling back laws involving sex offenders.
Other states have faced similar problems with registries.
Georgia now allows some people who were convicted of a non-sexual crime against a child (like kidnapping) to petition for release from the registry. No such options exist in Pennsylvania, but after 10 years, a Tier 1 offender with a "clean record" can petition to reduce the registration obligation by five years.
Philadelphia attorney Aaron Marcus agreed that state lawmakers appear reluctant to take action on the overreach of the sex offender law, calling it a "careless bill." He works with the Defenders Association of Philadelphia, an independent, nonprofit firm that represents poor criminal defendants.
“Very few legislators, at least in the last couple of years, wanted to touch this issue in any respect because anytime you remove an offense, you’re seen as soft on sex crimes, which is why these laws don’t get reined in,” he said.
And that's why Green said she has such a hard time convincing people that she didn't commit a sex crime — even though she's on the sex offender registry and even after she shows them paperwork that includes a letter from a child welfare caseworker confirming her crime wasn't sexual.
“There is a lot of ignorance to it because they don’t understand. They think of Megan’s Law — that is what you associate it with — some kind of sexual offense, some kind of sexual inappropriateness with children,” Green said. “I just pray the law does get changed and that they see the effect it is having on people. When you never did a sex offense. When you never did anything sexual to any children.”
States not in “substantial compliance” with the Adam Walsh Child Protection and Safety Act of 2006 face a 10 percent cut in annual federal crime-fighting grants.
Currently 17 states are in "substantial compliance" with the law including Pennsylvania, which amended its Megan's Law in 2011 to absorb the Adam Walsh Act. The Adam Walsh Act took effect in Pennsylvania in December 2012.
The federal Adam Walsh Act gives states the option to allow Tier 1 sex offender offenders that maintain good behavior to petition for early removal from registration obligations after 10 years, but Pennsylvania did not enact that provision when it updated its law.
Did you know?
Can someone be removed from the Pennsylvania’s Megan’s Law registry?
Yes, but it’s almost impossible, said Aaron Marcus, an attorney with the Philadelphia Defenders Association.
The only options currently available are a pardon from the governor or the underlying conviction is overturned on appeal. Both options are extremely rare, Marcus said.
Other options are file a petition with a court seeking removal based on one of several constitutional violations or convincing Pennsylvania State Police that there is a clerical error in sentencing orders that resulted in an erroneous registration requirement.
Some individuals were removed from the registry in under a 2014 state Supreme Court decision that briefly nullified the retroactive registration requirement under the Adam Walsh Act for some offenders convicted before 2012. But 2015 Supreme Court decision reversed the earlier one involving the retroactive application of Adam Walsh.