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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
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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?
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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 weve 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 dont 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

Contd
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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

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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 92-96 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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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 youths 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

Contd
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• 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

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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
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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

Presentation will focus on the Acts relevance
for youth adjudicated within the juvenile justice
system.
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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.

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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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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?
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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 Drivers License
• Identity of Victim (not public)

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What Information Must be Made Public?

• Name
• Address
• Employers 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 states 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

• 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 fall into the Tier III category, and thus
  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.

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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

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Other Sentencing Ramifications
Increased mandatory minimum sentences for future
offenses
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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 wont 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

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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.) 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
States constitution, as determined by the
States highest court. If states do not comply,
they are at risk of losing 10 of Byrne Justice
Assistance Grant Funding.
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What have other states done so far?
Ohio Delaware Mississippi Florida
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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

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Ohios 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 Defenders website has full
complaint, www.opd.ohio.gov
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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
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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 governors veto
• Not in compliance with AWA

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• 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.

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What is at risk for non-compliant states?
Loss of 10 of Byrne Justice Grant funding
http//www.ojp.usdoj.gov/BJA/grant/07JAGstatealloc
ations.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
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What are your options?

• Limit your implementation of AWA
• Implement AWA with safeguards
• Scale back more severe state laws to comport
  with AWA

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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
• 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

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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.
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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 states juvenile code so that
  youth cannot waive right to counsel without a
  parent or guardian present.

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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 states laws in order
  to comport with the more narrowly defined federal
  law.

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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 DOJs 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_at_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

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Sarah Bryer Director National Juvenile Justice
Network 202/467-0864 x 105 bryer_at_juvjustice.org
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