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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 www.njjn.org

2. OUTLINE OF PRESENTATION • Juvenile Sex Offenders • Adam Walsh Act Requirements for Youth • Recent State Legislation of Note • Options for Action www.njjn.org

3. 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 92-96% of adult offenders. www.njjn.org

4. 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

5. “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.) www.njjn.org

6. 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 www.njjn.org

7. 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 www.njjn.org

8. Creates 3 tiers that are offense-based, 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. www.njjn.org

9. 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. www.njjn.org

10. 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 www.njjn.org

11. 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. www.njjn.org

12. 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 www.njjn.org

13. 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

14. 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

15. What Cannot be Included on the Public Website? • Victim Identity • Social Security Number • Arrests not resulting in convictions • Passport and Immigration document numbers www.njjn.org

16. 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 www.njjn.org

17. 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

18. 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 www.njjn.org

19. 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 www.njjn.org

20. 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

21. If Youth Do Not Register: • They will face: • Fines and/or • A penalty of no less than one year and up to 10 years. www.njjn.org

22. 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. www.njjn.org

23. 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 www.njjn.org

24. 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. www.njjn.org

25. 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 www.njjn.org

26. 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 www.njjn.org

27. 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 www.njjn.org

28. 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. www.njjn.org

29. 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 www.njjn.org

30. 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 2-3% 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 www.njjn.org

31. 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: Amy.Borror@OPD.OHIO.GOV www.njjn.org

32. 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 www.njjn.org

33. OR: Concerned about many aspects, youth, cost, over-inclusivity 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 www.njjn.org

34. 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… www.njjn.org

35. 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 www.njjn.org

36. 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 www.njjn.org

37. 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. www.njjn.org

38. What are your options? • Don’t implement AWA – forgo Byrne Funding • Limit your implementation of AWA • Implement AWA with safeguards www.njjn.org

39. 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 www.njjn.org

40. 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 www.njjn.org

41. 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. www.njjn.org

42. 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 (info@njjn.org) • 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) www.njjn.org

43. Sarah Bryer Director National Juvenile Justice Network 202/467-0864 x 105 bryer@juvjustice.org www.njjn.org