Transcript Slide 1

How the Adam Walsh Act
Affects Juveniles
Presentation to the National Conference of State Legislatures
Fall Forum
Phoenix, AZ
November 29, 2007
Sarah Bryer, Director
National Juvenile Justice Network
www.njjn.org
OUTLINE OF PRESENTATION
1. What do we know about youth?
2. What do we know about youth sex offenders?
3. What does the Adam Walsh Act mandate for juveniles?
4. What have other states done to comply with the Act?
5. What are your options?
www.njjn.org
Juvenile Justice System Basics
First juvenile court created in 1899 in Chicago
By 1925 all states except Maine and Wyoming had separate systems
Some due process protections added later
Yet courts do not have full due process
(no jury trials, frequent waiver of counsel etc..)
Court premised on fundamental difference between
youth and adults
Youth are still developing, are amenable to rehabilitation
Fundamental tenet of confidentiality
Philosophy of parens patriae – state should act as parent
Judge to balance needs of youth with community safety
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What does brain research
reveal about youth?
 New brain development research has confirmed
what we’ve always suspected:
-- Teenagers seem different from adults, because they are.
 Adolescence brings a massive shift in brain and hormonal
development
Prefrontal cortex is not fully developed and teens don’t
use it as much as adults

-- Responsible for planning, judgment, insight
 Youth rely on amygdala to make decisions
-- Responsible for basic emotions, fight or flight
Cont’d
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As a consequence, youth will
-- Make poor judgments
-- Behave irrationally
-- Be susceptible to peer pressure, particularly in
contexts of high emotion

 Youth are also highly amenable to treatment and
rehabilitation
-- Their brains are still growing
www.njjn.org
Facts About Juvenile Sex Offenders
Extremely Low Recidivism
Most juvenile sex offenses are one-time events
Many studies show 4-14% recidivism
A study from 2007 showed no difference in future sex offending between
Youth with delinquency charges and youth with sex offense charges
Low Recidivism Borne Out by Research on Adult Sex Offenders
Studies in Racine, WI and Philadelphia, PA revealed few adult sex offenders
had committed youth sex offenses
Philadelphia: 8%
Racine: 4%
Using youth sex offenses to predict future sex crimes will miss 9296% of adult offenders.
www.njjn.org
Youth Are Unlikely to be Pedophiles
 Youth are not fixed in their sexual offending behavior.
 Youth do not eroticize aggression, nor are they aroused
by child sex stimuli.
 Only 8% of juvenile sex offenses show any evidence of a
pedophilia disorder as defined by the American Psychiatric
Association.
 Youth sex offenders engage in fewer abusive behaviors
over shorter periods of time.
www.njjn.org
Impact of Registration and
Community Notification on
Juveniles
Can complicate the rehabilitation and treatment of youth
Can inhibit families from seeking treatment for their children
(most sex offenses are committed by a known person, usually a
family member)
The stigma can exacerbate youth’s poor social skills and destroy
social networks necessary for rehabilitation.
Can hinder youth from becoming productive adults by being denied
fair opportunities for employment, education and housing
Cont’d
www.njjn.org
 Can lead to harassment and vigilantism against youth
Affects the whole family:
 May disallow family members from living in public
housing
 If residency restrictions, may require family to move
 May lead to harrassment of family
 Public registries can set youth up to be targets of
pedophiles
The focus on monitoring means less money and time for
prevention and education
www.njjn.org
“Adam Walsh Child
Protection and Safety Act”
HR 4472, Public Law Number 109-248
Signed into law July 27, 2006
States have until July 27, 2009 to come into compliance
with the Act
www.njjn.org
Youth Already In the Adult System
Youth who have been transferred and prosecuted in
the adult system:
 Treated as adults under the law
 Subject to registration and notification
requirements of adults
Presentation will focus on the Act’s relevance for
youth adjudicated within the juvenile justice system.
www.njjn.org
Which Youth Must Register?
 Youth who are adjudicated delinquent
 Who are 14 years of age or older
 Who have committed an offense comparable to or more
severe than Section 2241 of Title 18 of the US Code -aggravated sexual abuse, or the attempt or conspiracy to
commit such an offense.
www.njjn.org
Aggravated Sexual Abuse
 Engaging in a sexual act with another by force or
the threat of serious violence
 Engaging in sexual act with another by rendering
unconscious or drugging the victim
 Engaging in a sexual act with a child under the age
of 12
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What offenses are exempt
from registration?
Consensual sexual conduct:
 if the victim is at least 13 years old and the offender is
no greater than 4 years older than the victim.
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What Information Must be
Contained in the Registry?
www.njjn.org
The Youth Must Provide:
 Name
 Date of Birth
 Social Security Number (not public)
 Home Address
 Address of Place of Employment
 Address of School Where Offender May be a Student
 License Plate and Registration Number of Vehicle
 Email addresses
 Telephone numbers
 Passport and immigration document information
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The State Must Add:
 Physical Description of Registrant
 Legal Definition of the Offense Requiring Registration
 Criminal History
arrests that did not lead to a conviction are not
public;
 the law is silent on prior juvenile adjudications
 Photo
 Fingerprints
 DNA
 Photocopy of Driver’s License
 Identity of Victim (not public)
www.njjn.org
What Information Must be Made Public?
 Name
 Address
 Employer’s address
 School address
 License plate number
 Physical description
 Text of the sex offense
 Current photograph
www.njjn.org
What Cannot be Included on the
Public Website?
 Victim Identity
 Social Security Number
 Arrests not resulting in convictions
 Passport and Immigration document numbers
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What Can States Opt Not to Include
on the Public Website?
 Name of employer
 Name of school
 The state’s AG may choose to exclude
other information, such as email addresses
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Guidelines for the Public Registry
It must be easily accessed and searchable
It must contain the warning that the information
in the registry cannot be used to:
“unlawfully injure, harass or commit a crime
against any individual named in the registry
and that any such action can result in civil or
criminal penalties”
www.njjn.org
Community Notification Requirements
In every area where the youth:
 Lives
 Works
 Goes to School
The Registry must be sent to:
 law enforcement (including probation);
 schools;
 public housing;
 agencies that conduct background checks;
 child welfare agencies;
 volunteer organizations; and
 any organization, company or individual that requests
notification
www.njjn.org
Where and How Often a Youth Must
Register?
A youth must register in at least one of the jurisdictions
where s/he:
 Resides
 Goes to school
 Works
That jurisdiction must then notify the others.
Youth fall into the Tier III category, and thus must register
in person
 Every three months
 For the rest of their lives
www.njjn.org
Can Youth Ever Get Off the Registry?
Although there is no exception for adults in
Tier III -Youth can be removed from the registry
after 25 years, if the youth
 Has maintained a clean record with no new sex
or felony offenses
 Has completed any supervised release
 Has completed a sex offender treatment
program
www.njjn.org
If Youth Do Not Register:
They will face:
 Fines
and/or
 A penalty of no less than one year.
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Is Adam Walsh Retroactive?
The Act itself leaves the issue of retroactivity up to DOJ
DOJ has interpreted retroactivity as follows:
 All offenses committed after July 27, 2006 must be
included
 For offenses committed before 7/27/06, youth must be
placed on the registry, if:
They are currently under court or system supervision or
They come back into contact with the justice system for
any type of offense
www.njjn.org
Other Sentencing Ramifications;
Increased mandatory minimum
sentences for future offenses
www.njjn.org
Downsides of AWA
 Overinclusivity of sex offender registries with those unlikely to
recidivate – makes them non-functional
 Vigilantism against and harassment of youth and their families
 Loss of protection of confidentiality of juvenile court
 youth unable to rehabilitate and go on to lead a productive life
 Families won’t come forward when sex offense happens within
family
 less treatment when needed
 Negative impact on families (limitations on housing, exposure of
victims)
 Opens youth up to targeting by pedophiles
www.njjn.org
Compliance with AWA
States are required to be in substantial compliance by July
27, 2009. (AG can authorize 2 one year extensions.)
The AG has defined substantial compliance as strict
compliance.
States must meet the “floor” of the AWA as described in
the implementation guidelines. States may exceed the
AWA floor.
Note that States cannot implement AWA if it violates the
State’s constitution, as determined by the State’s highest
court.
If states do not comply, they are at risk of losing 10% of
Byrne Justice Assistance Grant Funding.
www.njjn.org
What have other states
done so far?
Ohio
Delaware
Mississippi
Florida
www.njjn.org
Ohio: SB 10
 Goes into effect, January 1, 2008
 Does not apply to all adjudicated juveniles age 14 &
older
 Only applies to youth transferred to adult court and to
serious youth offenders (youth who receive a juvenile
adjudication and a suspended adult sentence)
 Exempts all other adjudicated juveniles from the public
registry
www.njjn.org
Ohio’s Lawsuit on Retroactivity
Violates state constitution:
Separation of powers
Prohibitions on retroactive law
Ex post facto clause
Double jeopardy clause
Right to due process
Right to contract
Ohio Public Defender’s website has full complaint, www.opd.ohio.gov
www.njjn.org
Delaware -- SB 60
Wholly adopted provisions of the Walsh Act
Florida – Public Law ch 2007-209
Mostly adopts provisions of the Walsh Act
But not retroactive prior to July 1, 2007
Mississippi –
Did not address retroactivity
www.njjn.org
Other Recent Sex Offender Legislation
Illinois – SB 121, 2007
Allows juveniles to petition to be removed from registry
after:
•A full hearing
•2 years for misdemeanor offense
•5 years for a felony offense
•Legislature overrode governor’s veto
•Not in compliance with AWA
www.njjn.org
Arizona: SB 1628, April 2007
 Requires youth sex offenders to only be placed in
treatment programs of similar age and developmental
maturity level.
 Requires a court hearing for any youth prosecuted as an
adult to determine if youth should be transferred to juvenile
court.
 Allows for an annual probation review hearing for youth
sex offenders under age 22 who are in the adult system.
 Allows transferred youth to be removed from the registry.
www.njjn.org
What is at risk for non-compliant states?
Loss of 10% of Byrne Justice Grant funding
http://www.ojp.usdoj.gov/BJA/grant/07JAGstateallocations.
pdf
http://www.ojp.usdoj.gov/BJA/grant/jag.html
Examples of funding for 2007:
Montana: $1.5 million
Oregon: $3.4
Pennsylvania: $11.7
www.njjn.org
What are your options?
1. Limit your implementation of AWA
2. Implement AWA with safeguards
3. Scale back more severe state laws
to comport with AWA
www.njjn.org
LIMITED IMPLEMENTATION
Make the case that “substantial compliance” with Adam
Walsh is met by any of the following:
 Keeping juveniles adjudicated delinquent off the
state registry entirely
 Removing youth from the public registry
 Only placing youth on a registry after a panel or a
judge has determined them to be a public safety
risk.
 Allowing youth to petition to be taken off the registry
 Not making the registry retroactive for juveniles
www.njjn.org
Do a cost-benefit calculation of implementing Adam
Walsh (including costs of tracking and future costs of
loss of productivity of youth etc..) vs. loss of Byrne
funding.
Explore state constitutional arguments.
www.njjn.org
If Implementing AWA:
 Ensure that your legislation does not exceed the
federal requirements for which youth need to need to
register; the information included in the registry; and
community notification procedures.
 Guard that your state keeps confidential that
information which it is not obligated to make public.
 Develop statutes that make it a crime to
inappropriately use information on the registry.
 Strengthen your state’s juvenile code so that youth
cannot waive right to counsel without a parent or
guardian present.
www.njjn.org
If Current State Policy is More Severe than AWA
 Make sure that the information your state sends to the
federal registry does not go beyond the federal
requirements; and
 Use this new law as an opportunity to advocate for a
scaling back of your state’s laws in order to comport with
the more narrowly defined federal law.
www.njjn.org
For More Information:
 Legislation: http://thomas.loc.gov/ by searching by bill number
(HR 4472) or Public Law Number (109-248).
 Visit US DOJ’s SMART office on-line for information about
implementing Adam Walsh.
 www.njjn.org (National Juvenile Justice Network)
Sign up for the Adam Walsh listserv for updates on states’
implementation of the Act ([email protected])
 www.NCSBY.org; (National Center on Sexual Behavior of Youth)
www.NAESV.org (National Association to End Sexual Violence)
www.atsa.com (Association for the Treatment of Sexual Abusers)
“No Easy Answers: Sex Offender Laws in the US,” Human Rights
Watch, 2007
An American Travesty, Frank Zimring, 2004
www.njjn.org
Sarah Bryer
Director
National Juvenile Justice Network
202/467-0864 x 105
[email protected]
www.njjn.org