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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

2. 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

3. 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 www.njjn.org

5. 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 www.njjn.org

6. 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

7. 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

8. 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

9. 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

10. 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

11. “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

12. 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

13. 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

14. 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

15. 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. www.njjn.org

16. What Information Must be Contained in the Registry? www.njjn.org

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

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

27. 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

28. Other Sentencing Ramifications; Increased mandatory minimum sentences for future offenses www.njjn.org

29. 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

30. 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

31. What have other states done so far? Ohio Delaware Mississippi Florida www.njjn.org

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. What are your options? • Limit your implementation of AWA • Implement AWA with safeguards • Scale back more severe state laws to comport with AWA 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 • 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

40. 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

41. 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

42. 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

43. 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.njjn.org

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