Transcript Slide 1

The Adam Walsh Act Affects
& Youth Sex Offenders
Presentation to the American Bar Association
March 29, 2008
Sarah Bryer, Director
National Juvenile Justice Network
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OUTLINE OF PRESENTATION
1. Juvenile Sex Offenders
2. Adam Walsh Act Requirements for Youth
3. Recent State Legislation of Note
4. Options for Action
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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.
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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.
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“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
(Two one year extensions allowed.)
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7 Titles, 707 sections, 166 pages
Title I: SORNA – Sex Offender Registration and
Notification Act
Title II: Federal Criminal Law Enhancements Needed to Protect
Children from Sexual Attacks and Other Violent Crimes
Title III: Civil Commitment
Title IV: Immigration Reforms to Prevent SO’s from Abusing
Children
Title V: Child Pornography Prevention
Title VI: Grant, Studies and Programs for Children and Community
Safety
Title VII: Internet Safety Act
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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
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Creates 3 tiers that are offensebased, rather than risk-based.
Tier 1: Misdemeanor offenses, register for 15 years,
register in person annually
Tier 2: Felony sexual abuse and sexual exploitation
offenses, must register for 25 years, register in person
every 6 months
Tier 3: Felonies including sexual assaults, sexual contact
with youth and attempts to commit such offenses, register
for life, in person every 3 months
Tier 3 is the only tier that applies to adjudicated youth.
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Which Youth Must Register?
The following youth must be designated Tier 3:
 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.
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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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Consensual sexual conduct is
exempt, 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?
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)
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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**
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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”
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Community Notification Requirements
In every area where the youth:
 Lives
 Works
 Goes to School
The Registry must be sent to:
 Federal sex offender registry
 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
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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 in the Tier III category must register in person
 Every three months
 For the rest of their lives
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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
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If Youth Do Not Register:
They will face:
 Fines
and/or
 A penalty of no less than one year and
up to 10 years.
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Enhanced penalties for other crimes:
If youth on the registry commits a crime of
violence, he or she may be imprisoned for not
less than 5 years and not more than 30 years
(in addition to punishment imposed for
original crime.)
The Act also includes other mandatory
minimum sentences, including life sentences.
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Is Adam Walsh Retroactive?
The Act itself leaves the issue of retroactivity up to DOJ
To date DOJ has interpreted retroactivity as follows:
 All offenses committed after July 27, 2006 must be included
• Potential exception: if offense occurred after 7/27/06 and youth has
completed registry requirements prior to state implementation of AWA
and youth is not in contact with the criminal or juvenile system for any
offense.
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
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Compliance with AWA
States are required to be in substantial compliance by July
27, 2009. (AG can authorize 2 one year extensions.)
(Note that final implementation guidelines from DOJ are
supposed to be issued this spring. )
To date, 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.
The Act states that States cannot implement AWA if the AG
determines that it violates the State’s constitution, as
determined by the State’s highest court.
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Non- Compliance Leads to Loss of Byrne $
If states do not comply, they are at risk of losing 10% of
Omnibus Crime Control and Safe Streets Act of 1968 -Byrne Justice Assistance Grant Funding – for each year
of non-compliance.
Last year, Byrne money was slashed by 67%, from 520
(FY 07) to 170 million (FY 08).
Examples of funding for FY 07:
Montana: $1.5 million
Oregon: $3.4
Pennsylvania: $11.7
http://www.ojp.usdoj.gov/BJA/grant/07JAGstateallocations.pdf
http://www.ojp.usdoj.gov/BJA/grant/jag.html
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Impact of SORNA
Bad for Public Safety
Overinclusivity of sex offender registries with those unlikely to
recidivate – makes them non-functional
The focus on monitoring means less money and time for prevention
and education
There is no evidence that registries increase public safety.
Bad for Families
 Vigilantism against and harassment of youth and their families
Publicly exposes whole family including victims
 May subject family to residency restrictions
 Families may not come forward and seek treatment and help when
sex offense happens within family (most sex offenses against
juveniles are committed by a known person, usually a family member)
Cont’d
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Bad for Youth
Can complicate the rehabilitation and treatment of youth
Loss of protection of confidentiality of juvenile court
The stigma can exacerbate youth’s poor social skills and destroy
social networks necessary for rehabilitation.
Families may be unwilling to seek treatment for youth
Can hinder youth from becoming productive adults by being denied
fair opportunities for employment, education and housing
Opens youth up to targeting by pedophiles
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The State of the States: SORNA
Implementation
Implemented (but not necessarily approved by
SMART Office):
Delaware – (9/07, SB 60) exceeded AWA
requirements by making it a felony to not register or
re-register, retroactive to 1994
Florida – (2007) may not be in compliance because
not retroactive prior to implementation
Louisiana – (2007) had difficulty complying because
LA crim code did not match AWA’s tiers, determined
to be non-compliant by SMART Office.
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Mississippi – (2007) advocates managed to keep
legislators from far exceeding requirements of AWA,
e.g. pink license plates
Montana – implemented, effective 4/2007, not
complete
Nevada – passed 1/07, effective 7/08, retroactive to
1956, negative press re: juveniles on registry
Ohio – SB 10 – kept adjudicated youth off of
registry!!
South Carolina - implemented
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Ohio: SB 10, 6/30/2007
Victory: Only puts youth who have been transferred to
the adult court on the registry or “serious youth
offenders”, not adjudicated delinquents. Includes only 23% of juvenile sex offenders in DYS
Argued: youth are different, fiscal costs, law
enforcement opposed, lots of allies
Press Aftermath: Huge outcry in the press. 1/3/08,
Cincinnati Enquirer (very conservative paper): “New
Offender Law is Offensive.” burdensome, retroactivity
unfair
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Ohio: SB 10, cont’d
Court Aftermath: Because it’s retroactive, 35,000
offenders receive reclassification letters, they file petitions.
Courts grind to a halt. Judges decry the law.
Litigation: Several class action law suits filed. Visit
http://www.opd.ohio.gov/ for more information or contact
Amy Borror at the Public Defender’s Office:
[email protected]
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Other States
AK: Considering not implementing
CO: Concerned about unfunded mandate
CT: Considering not implementing
HI: Intends to be fully compliant, concerned about juveniles,
unfunded mandate
KS: Intends to be in full compliance, concerned about lack
of risk assessments
MD: Introduced this session
ME: Considering not implementing
MO: Introduced this session
NH: Considering not implementing for youth, concerned
about cost
NJ: Considering not implementing
NM: Considering not implementing, sex offender
management board opposed to juvenile registration
NY: Concerned about juveniles, cost and retroactivity
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OR: Concerned about many aspects, youth, cost, overinclusivity
PA: Concerned about juveniles
TN: Hoping to delay juveniles as long as possible
TX: Bill introduced last year and then stalled out as sponsors
realized it was bad policy, concerned about cost, juveniles,
retroactivity
UT: Considering not complying with juvenile and retroactivity
requirements
VA: Introduced but put over until next year, huge fiscal
analysis
VT: Considering not implementing
WA: Concerned about lack of research base for conviction
based registry rather than risk based registry, increase in
number of offenders required to register
WI: Waiting for more direction from feds
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Cost Analysis
VA: Virginia’s Department of Planning and Budget determined
cost would be 12 million for first year, and 8.8 million for each
of five years thereafter.
ME: Maine’s rough cost analysis determined that it would
take 28-30 new positions to bring the state into compliance in
order to maintain the registry, address retroactivity, address
litigation in the courts, reclassify registrants, maintain the
database, develop infrastructure to transmit data to DPS, to
review DMV records, to identify parties to be notified, to
develop capacity to add palm prints to the database, to
generate and respond to additional warrants for violations, for
additional inmate beds etc…
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Cost Analysis cont’d
OH: Some Ohio counties were spending
hundreds of thousands just to send certified mail
to sex offenders notifying them of their duty to
register.
AZ: legislative hearing testimony that it would
cost millions to implement, while the State stood
to lose about $700,000
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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
•Pushed by prosecutors and state’s attorney
•AG’s office only one pushing for AWA
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Arizona: SB 1628, April 2007
After much education, testimony family members, victims’
groups etc…
 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.37
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What are your options?
1.Don’t implement AWA – forgo Byrne
Funding
1.Limit your implementation of AWA
2. Implement AWA with safeguards
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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 and
community notification requirements of Act
 Only placing youth on a registry after a panel or a
judge has determined them to be public safety risks.
 Allowing youth to petition to be taken off the registry
 Not making the registry retroactive for juveniles who
are in or come back into contact with the justice
system
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Some Strategies
Do a cost analysis 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.
Form coalitions with victims’ groups, law enforcement, good
government organizations, families (AZ), prosecutors (IL) - a
little bit of education goes a long way
Make case for state’s rights
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If Implementing AWA:
 Ensure that your legislation does not exceed the
federal requirements for which youth must 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.
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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.ncsl.org (National Conference of State Legislatures)
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Sarah Bryer
Director
National Juvenile Justice Network
202/467-0864 x 105
[email protected]
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