Nicole Pittman - SORNA

Slide 1 : NATIONAL LEGAL AID & DEFENDER Trainers Section September 30, 2009 2-4pm The Adam Walsh Child Protection and Safety Act’s Sex Offender Registration & Notification Act (SORNA): As it Relates to Juveniles

Slide 2 : NICOLE PITTMAN, ESQ. Juvenile Justice Policy Analyst Attorney Defender Association of Philadelphia The Adam Walsh Child Protection and Safety Act’s Sex Offender Registration & Notification Act (SORNA):

Slide 3 : OUTLINE: General Content Overview of SORNA Substantive legal issues raised by SORNA as they relate to juveniles State compliance Issues: What is “substantial compliance” and what will it cost to implement the Act?  Public Defenders and State Policy Advocacy to push back SORNA legislation due to concerns about the juvenile provisions. The Adam Walsh Child Protection and Safety Act’s Sex Offender Registration & Notification Act (SORNA):

Slide 4 : I. GENERAL CONTENT OVERVIEW OF SORNA

Slide 5 : What is it? House Resolution 4472; Public Law #109-248 Effective Date: Signed by President Bush on July 27, 2006 Enforcement Date: States have until July 27, 2009 to come into “substantial compliance” with the federal standards. Goal & Objective: To create “an effective and comprehensive national system of registration and notification program” that covers all individuals convicted of a qualifying sex offense prior to the enactment of SORNA or prior to the jurisdiction’s implementation of SORNA. The Act does not establish a Federal Sex Offender Registry The Adam Walsh Child Safety & Protection Act

Slide 6 : The AWA has seven “Titles” Title I of the Adam Walsh Act refers to the Sex Offender Registration & Notification Act (“SORNA”) The Adam Walsh Child Safety & Protection Act

Slide 7 : Important Dates July 27, 2010: Extended deadline for substantial compliance. July 27, 2009: Deadline for substantial implementation of SORNA for all registration jurisdictions. April 27, 2009: Date for all registration jurisdictions to submit compliance packets establishing substantial compliance to the SMART Office. July 27, 2007: Date by which federally recognized tribes must elect to become a SORNA registration jurisdiction or elect to delegate registration and notification functions to the state or states in which the tribal land is located. There will be an automatic delegation of duties to states for tribes not electing by July 27, 2007. The Adam Walsh Child Safety & Protection Act Extended

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Slide 9 : SORNA seeks to set a federal standard for sex offender registry requirements in the 50 states, Washington, DC, U.S. Territories, and Indian Tribes. SORNA sets a baseline; a floor not a ceiling. States are free to exceed this minimum standard. It does not establish a Federal Sex Offender Registry The Act establishes a new federal criminal offense for failure to register under SORNA 18 USC §2250. SORNA Basics

Slide 10 : States have until July 27, 2010 to come into “substantial compliance” with the federal standards or else forfeit 10% of federal Omnibus Crime Control & Safe Streets Act (Byrne Grant) funding for each year not in compliance. Financial Implications of SORNA Byrne Grant Funding How much money do states stand to lose by failing to implement SORNA by July 29, 2009? Under FY 2007 the Byrne Grant provided the following funds: California: $32 million to state; $52 million to state and locales Alabama: $47 million to state; $6.8 million to state and locales Oregon: $3.4 million to state; $4.99 million to state and locales In December 2007, President Bush signed FY 2008 Omnibus Budget Appropriations bill. One of the largest reductions was in the Byrne/justice Assistance Grant which was slashed 67%, from $520 million in FY 2007 to $170 million in FY 2008.

Slide 11 : II. Substantive Legal Issues

Slide 12 : SORNA: As it Relates to the Juveniles SUBSTANTIVE CHALLENGES

: Federalism: denial of states’ rights to make individualized and informed decisions regarding what is best for them in terms of registration requirements. Congress does NOT have the authority to implement state criminal law and has overstepped its bounds The federal government’s stance in SORNA is in direct conflict with the philosophical goals of rehabilitation and treatment in the vast majority of state courts The federal government is mandating through SORNA that states both implement SORNA and draft new laws to respond to future SORNA violations. This takes away judicial and prosecutorial discretion, which should be left to the states. FEDERALISM

Slide 14 : . . . more than 50% of juveniles appeared in Luzerne County Juvenile Court without benefit of counsel – Procedural Due Process I. Waiver of counsel Pennsylvania PRESS RELEASE State Data Confirm: Luzerne County is Worst Violator of Youth Civil Rights Pennsylvania Supreme Court Petitioned for Emergency Relief April 28, 2008 … State records show that since 2005, more than 50% of juveniles appeared in Luzerne County Juvenile Court without benefit of counsel – nearly ten times the state average. A significant percentage of these unrepresented juveniles were ultimately adjudicated delinquent and sanctioned; nearly 60% of delinquency dispositions for youth without counsel resulted in out-of-home placements. The state data show that from 2005 - 2006, more than 500 families in the county were affected and approximately 200 children were removed from their homes, leaving both children and parents feeling bewildered, violated and traumatized. PROCEDURAL DUE PROCESS

Slide 15 : Procedural Due Process I. Waiver of counsel (continued) Ohio Press release March 9, 2006 Groups Urge Ohio Supreme Court to Ensure Lawyers for ChildrenToo Many Minors Waive Right to CounselCOLUMBUS – . . . As many as 80 percent of children charged with criminal wrongdoing in some Ohio juvenile courts are not represented by counsel. “Too many young people simply do not understand the legal ramifications of proceeding without an attorney,” said ACLU of Ohio Legal Director Jeffrey Gamso. “ … Many Ohio youth also have barriers to understanding the serious charges they may face. In Ohio, almost 75% of incarcerated youth need mental health services, and nearly half need special educational services. A growing number of cases show that youth who are not represented by an attorney are more likely to enter guilty pleas, even when they may be innocent or have viable defenses. “Kids aren’t waiving their right to counsel for well-thought-out reasons,” said Kim Brooks Tandy, executive director of the Children’s Law Center. “They are waiving to get the process over with quickly, because they think they will seem less guilty . . .” PROCEDURAL DUE PROCESS Continued-2 A growing number of cases show that youth who are not represented by an attorney are more likely to enter guilty pleas, even when they may be innocent or have viable defenses

: Procedural Due Process II. Juveniles do not receive the full panoply of Due Process protections afforded to adults Conn. Dept. Of Public Safety v. Doe, 538 US 1 (2002): Generally held as the landmark case regarding registration procedures under state sex offender registry statutes and the possible resulting procedural due process issues. Held that a current finding of dangerousness is immaterial because it’s not part of the statutory scheme). BUT this landmark decision cannot applied to juveniles: Low recidivism rates: Conn. Dept. Of Public Safety was influenced by the idea that sex offenders are “a serious threat in this Nation” (Id. at 4, citing McKune v. Lile 536 U.S. 24 (2002))…) and that they “are more likely than any other type of offender to be re-arrested” for a new sexual offense (Id). ? The recidivism rate for juveniles adjudicated for sex offenses is extremely low (under 7%). Less procedural safeguards: The Supreme Court in Conn. Dept. Of Public Safety also implies that the fact that the registration requirement in Connecticut turns solely on the prior conviction is of no consequence because “a convicted offender has already had a procedurally safeguarded opportunity to contest.” (Id. at 7). ? juveniles do NOT have the same procedural safeguards as adult offenders. They are not afforded trials by jury. They are not afforded pre-trial hearings in many jurisdictions. They are not, in some jurisdictions, even afforded representation. PROCEDURAL DUE PROCESS Continued-3

: Procedural Due Process II. Juveniles do not receive the full panoply of Due Process protections afforded to adults (continued) Smith, et al. v. Doe. 538 US 81 (2003): Another case in this area of jurisprudence that does not apply to SORNA registration requirements for juveniles is Smith, et al. v. Doe. 538 US 81 (2003). Affirmative disability or restraint”: Justice Kennedy held for the Supreme Court that the registration Act at issue did not constitute an “affirmative disability or restraint” because it did not require the registrant show up in person for his quarterly registration updates. Id. at 100. SORNA requires in-person registration and registration updates, which thereby constitute an “affirmative disability or restraint”. PROCEDURAL DUE PROCESS Continued-4

: Procedural Due Process II. Juveniles do not receive the full panoply of Due Process protections afforded to adults (continued) Irrebutable Presumption: It is violative of procedural due process protections to create an irrebutable presumption that a juvenile is a sex offender based on an adjudication of delinquency. The creation of an irrebutable presumption by its very nature violates due process; according to the Pennsylvania Supreme Court, an irrebutable presumption violates due process “where the presumption is deemed not universally true and a reasonable alternative means of ascertaining the presumed facts [is] available.” Pa. Dep’t of Transp. V. Clayton, 684 A.2d 1060, 1063 (1996). The presumption that a juvenile adjudicated for a sexual offense will be a future danger to society is NOT universally true and a hearing or other procedure would be a perfectly reasonable alternative to determine the fact of dangerousness. This will play out differently in states with existing juvenile registration vs. states without existing juvenile registration laws. PROCEDURAL DUE PROCESS Continued-5

: I. Juveniles have a constitutionally protected interest in not being wrongly classified as sexual predators (continued) Dangerousness: A mere adjudication of delinquency for a sexual offense is not determinative of dangerousness in a juvenile. SORNA does not afford adjudicated sex offenders a subsequent hearing on current dangerousness prior to the application of registration and notification requirements. Governmental defamation: sex offender registration schemes can constitute governmental defamation by wrongly labeling adjudicated offenders as potential future sexual predators without sufficient due process. The Paul v. Davis Stigma “plus” test requires that a p show not only that the alleged defamatory action stigmatized him, but also that she suffered a tangible loss in conjunction with the stigma inflicted. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Stigmatization Tangible losses: are things like loss of education and loss of the family and family environment tangible enough losses to satisfy this requirement? Legal status: substantive change in/burden on legal status SUBSTANTIVE DUE PROCESS

: I. Juveniles have a constitutionally protected interest in not being wrongly classified as sexual predators (continued) Defamation: children implicated by the Act have not been convicted of a criminal offense. Rather they have been adjudicated delinquent and have been found to be amenable to treatment and deserving of the opportunity to correct their behavior apart from the stigma and long-term collateral consequences that typically accompany criminal convictions. Reputation: Reputation as a fundamental liberty interest. The Supreme Court of Pennsylvania has explicitly acknowledged that reputation is a fundamental right according to the Pennsylvania Constitution. Furthermore, the Pennsylvania Constitution provides a legal remedy for damage to reputation and allows citizens to sue the commonwealth. Paul v. Davis, 424 U.S. 693 (1976). In Indiana, reputation is a fundamental interest, and is thereby accorded the standard of strict scrutiny. See Indiana Dep't of Envtl. Management v. Chemical Waste Management, 643 N.E.2d 331, 337 (S.Ct. Indiana 1994) , holding that “reputation is a fundamental interest in this State” Several states provide a legal remedy for injury to reputation in their state Constitutions (e.g. PA (Pa. Const. Art. 1, § 11 (2007)), IL (Ill. Const. 1970, art. I § 12 (2008)), OH (Oh. Const. Art. I § 16 (2008)), LA (La. Const. art. I, § 22 (2008)), ME (Me. Const. Art. I, § 19 (2008)) Residency Restrictions: public registration and community notification requirements can complicate the rehabilitation and treatment of these youth. In some cases, children who are required to register have been harassed at school, forcing them to drop out. The stigma that arises from community notification serves to “exacerbate the poor social skills” many children who offend possess, destroying the social networks necessary for rehabilitation. Education itself is vital to reducing the risk of further criminal behavior. SUBSTANTIVE DUE PROCESS Continued-2

Slide 21 : I. The Right to Parent: SORNA as applied to children will disrupt families and communities across the nation because the requirements do not just stigmatize the child; they stigmatize the entire family including parents and other children in the home. In the overwhelming majority of the cases the address and telephone number the child has to provide will be the family’s. The school information the youth has to provide will be the same school currently or soon to be attended by a sibling. The vehicle information the child provides will likely be his or her parents’. Privacy Rights: Strict Scrutiny applied? There is a right of personal privacy, or a guarantee of certain areas of zones of privacy, protected by the United States Constitution. Roe v. Wade, 410 U.S. 113, 152, 35 L. Ed.2d 147, 93 S. Ct. 705 (1973). This privacy right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education." Id at 152 Case Law Mandating juvenile registration interferes with the absolute right to parent Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed 645, 64 S. Ct. 438 (1944). Troxel v. Granville, 530 U.S. 37 (2000) - It cannot be doubted that the Due Process Clause of the 14th Amendment protects the fundamental rights of parents to make decisions concerning the care, custody, and control of their children. EQUAL PROTECTION

OTHER ISSUES: : Contrary to core purpose of the juvenile justice system: Adam Walsh requirements as applied to children are contrary to the core purposes, functions, and objectives of our nation’s juvenile justice systems in that it strips away the confidentiality and the overall rehabilitative emphasis that form the basics of effective intervention and treatment for children who offend. OTHER ISSUES:

Slide 23 : NINTH CIRCUIT

Slide 24 : NINTH CIRCUIT RETROACTIVITY. . . Circuit panel finds retroactive part of SORNA unconstitutional The Ninth Circuit, in an lengthy panel opinion authored by Judge Reinhardt, declares in US v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) (available here http://www.ca9.uscourts.gov/datastore/opinions/2009/09/10/07-30290.pdf ) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders. Issue: Whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution?   Held: In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional. NEW CASE LAW

Slide 25 : ILLINOIS

Slide 26 : ILLINOIS ILLINOIS SB 121 PUBLIC ACT 95-0658 Duty to Register The court is required to order registration for adjudicated juveniles. Duration of Registration The court has no discretion to alter the duration of registration as required by 730 3LCS 15017 (1 0 years or natural life). Termination of Registration An adjudicated juvenile may petition the court to terminate his or her duty to register after: 5 years, if the offense, if charged as an adult, would be a felony offense. 2 years, if the offense, if charged as an adult, would be a misdemeanor offense. The court is to hold a hearing on the petition and may terminate the juvenile's registration requirement if it finds by a preponderance of the evidence that the juvenile poses no risk to the community. Retroactivity This Act applies retroactively to adjudicated juveniles who registered or were required to register before October 1 1,2007. A Juvenile adjudicated prior to October 11,2007 may file a Petition Requesting Registration Status with the clerk of the court.

Slide 27 : NEVADA

Slide 28 : Clark County, Nevada Ruling (April 2008) Lower court judge in Nevada, Judge Voy, ruled that Nevada's SORNA compliance law (AB 579) was unconstitutional as it applied to juvenile sex offenders. District Judge William Voy of the Clark County Family Court ruled that a part of a new law involving sexual offenses by teenagers was invalid. He said setting the age at 14 was arbitrary. There should be a basis for setting that age, he said. This challenge was led by Clarke County Defender, Susan Roske. U.S. District Court Ruling (September 2008) A federal judge issued a permanent injunction that bars the state of Nevada from applying its new sex offender law (SORNA) retroactively. U.S. District Judge James Mahan said the law, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, is unconstitutional. Judge James Mahan ruled that the law violates the U.S. constitutional clauses regarding ex post facto (retroactive) laws, the due process clauses of the fifth and 14th amendments, and the double jeopardy clause of the fifth amendment. Attorney Maggie McLetchie of the ACLU has led this litigation. NEVADA

Slide 29 : SOUTH DAKOTA

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Slide 31 : IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA - THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF Z.B., A MINOR CHILD AND CONCERNING A.B. AND H.B., RESPONDENTS. Filed 11/06/08 Z.B. admitted in juvenile court to committing two first degree rapes. At the time of these offenses, he was fifteen. He was court ordered to register as a sex offender. South Dakota law requires that Z.B. remain on the sex offender registry for life. Adults who commit the same offense may be able to have their names removed from the registry if they obtain a suspended imposition of sentence. There is no equivalent opportunity for juvenile offenders like Z.B. Accordingly, under the Equal Protection Clauses of the United States Constitution and the South Dakota Constitution, Z.B. and similarly situated juveniles are denied equal protection. We reverse. SOUTH DAKOTA

Slide 32 : IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA - THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF Z.B., A MINOR CHILD AND CONCERNING A.B. AND H.B., RESPONDENTS. The South Dakota Supreme Court has ruled that juvenile sex offenders are treated unfairly under the state's sex offender registry law. South Dakota law requires offenders to register with law enforcement agencies after they are released from jail or prison. The information is made public to protect people from sex offenders. The high court says the law is unconstitutional in the way it treats juvenile offenders more harshly than adults. That's because juveniles do not have the same chance to get their names removed from the sex offender registry. ..News Source.. by KCAU-TV9 SOUTH DAKOTA Continued-1

Slide 33 : IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA - THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF Z.B., A MINOR CHILD AND CONCERNING A.B. AND H.B., RESPONDENTS. This decision is very significant for a few reasons: 1.         The state Supreme Court decision gives South Dakota an irreconcilable conflict with the SORNA guidelines and MAY allow South Dakota to exclude juveniles from the SORNA registry. SORNA Section 125(b) recognizes that there may be some instances in which a jurisdiction cannot substantially implement SORNA “because of a demonstrated inability to implement certain provisions that would place a jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction's highest court.'' This more permissible standard is applicable only to the extent that there is an irreconcilable conflict between substantial implementation of SORNA's requirements and what the jurisdiction's constitution allows. 2. The decision also includes some good dicta on Roper v. Simmons as it relates to sex offender Registry. SOUTH DAKOTA Continued-2

Slide 34 : III. Substantial Compliance with the SORNA Guidelines

Slide 35 : FOR IMMEDIATE RELEASE WEDNESDAY, SEPTEMBER 23, 2009 WWW.USDOJ.GOV OPA (202) 514-2007 TDD (202) 514-1888 JUSTICE DEPARTMENT ANNOUNCES FIRST TWO JURISDICTIONS TO IMPLEMENT SEX OFFENDER REGISTRATION AND NOTIFICATION ACT           WASHINGTON, D.C. – The Department of Justice announced today that Ohio and the Confederated Tribes of the Umatilla Indian Reservation are the first two jurisdictions to substantially implement the Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006.            "We are pleased to announce the first two jurisdictions to substantially implement this important legislation," said Attorney General Eric Holder. "We are committed to working with the remaining states, tribes and territories with their implementation efforts."            The State of Ohio and the Confederated Tribes of the Umatilla Indian Reservation (located in the state of Oregon) have been working diligently with the Office of Justice Programs' Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) to achieve this milestone, according to officials from the SMART Office . . . SORNA: Substantial Compliance????

Slide 36 : SUBJECTS juveniles to full registration and notification. ESTABLISHES a new federal criminal offense for failure to register. BROADENS the range of registerable sexual offenses. IMPOSES an offense-based registration; eliminating judicial discretion and risk assessment. CREATES three tiers of registration with Tier III requiring lifetime registration and notification. APPLIES retroactively EXPANDS the requirements of registration & community notification DESIGNS a national online registry – a web site searchable by anyone, anywhere. SORNA: Substantial Compliance

Slide 37 : Subjects juveniles to full registration and notification. Defendant 14 years or older at the time of the offense … the term “convicted” or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense … All juveniles will be placed in Tier III (Lifetime registration & notification) SORNA: Substantial Compliance continued-2

Slide 38 : Subjects juveniles to full registration and notification (continued). Offense can be either completed, attempted, or conspired. Will children be banned from living within 1,000 feet or be within 500 feet of any structure designed for use primarily by children? SORNA: Substantial Compliance continued-3 Our juvenile justice system is incompatible with the purposes and procedures of SORNA: Our juvenile justice system is incompatible with the purposes and procedures of SORNA. By making SORNA offense based, without affording juveniles a hearing to assess their dangerousness, the Attorney General is subjecting youth to extremely detrimental registration requirements that could never have been envisioned by judges, prosecutors, offenders and defenders in the underlying plea, adjudication and disposition proceedings. Youth are less likely to have deviant sexual interests juveniles do not normally get jury trials …SORNA forces youth to accept adult punishment but denies them the adult constitutional right to a trial by peers.

Slide 39 : Establishes a new federal criminal offense for failure to register. States: required to have a failure to register offense with a criminal penalty for a “maximum term of imprisonment greater than one year.” Federal: An offender who fails to register in their state or engages in interstate or international travel, or enters or leaves Indian Country can be prosecuted under federal law 18 USC § 2250. Punishable by up to 10 years in prison. SORNA: Substantial Compliance continued-4

Slide 40 : Broadens the range of registerable sexual offenses to those offenses comparable to or more severe than Aggravated Sexual Abuse defined in 18 U.S.C. § 2241. this includes offenses in which one engages in any sexual act with a person under the age of 12. Exception - Consensual sexual conduct is not a sex offense if the victim was an adult, or the victim was at least 13 years old and offender was not more than four (4) years older than the victim. “What offenses are considered comparable to 18 U.S.C. § 2241? SORNA: Substantial Compliance continued-5 “Conviction” for SORNA purposes: One subject to penal consequences based on that conviction, even if it is not called a ‘conviction.’ Sealing a criminal record, when it does not deprive it of continuing legal validity, does NOT change its status as a ‘conviction’ for purposes of SORNA purposes.

Slide 41 : Imposes an offense-based registration; eliminating judicial discretion and risk assessment. SORNA: Substantial Compliance continued-6 SORNA is harmful to minors: Knowing that juveniles are at a low risk to re-offend; the lack of safeguards to ensure confidentiality, correct errors, or remove individuals from this list; and the damage associated with being 'blacklisted' for life for a youthful offense, public safety and good policy dictate that the national sex offender registry specifically exclude persons who committed an offense prior to having attained the age of 18 years.

Slide 42 : Creates three tiers of registration (Tier III = lifetime registration & notification). Tier I Defined: Convictions that have an element involving a sexual act/sexual contact, that is not Tier II or Tier III. Required to register for 15 years must make in person “show-ups” once a year Tier II Defined: Tier I Recidivist & current sex offense punishable by more than one year imprisonment Required to register for 25 years must make in person “show-ups” twice a year Tier III Defined: Tier II Recidivist, & current sex offense punishable by more than one year imprisonment. Required to register for life must make in person “show-ups” three times/yr juveniles can petition to reduce registration after 25 years of a “clean record.” SORNA: Substantial Compliance continued-7

Slide 43 : Retroactively Applied As it relates to juveniles, It appears that an “offender” for purposes of SORNA is now limited to juveniles who committed offenses after July 26, 2006 and are either: SORNA: Substantial Compliance continued-8 Retroactivity States are considered to be in “substantial compliance” if the law applies to juveniles who committed offenses after July 27, 2006 (AWA enactment date) incarcerated or under supervision for the predicate offense or for any offense at the time AWA is enacted in their state, already subject to a pre-existing sex offender registration requirement at the time AWA is enacted in their state, or (3) re-enter the justice system due to conviction/adjudication of some other offense (regardless of whether it is a sex offense).

Slide 44 : Expands the requirements of registration & community notification SORNA: Substantial Compliance continued-9 What Information that must be made public? Name Address Employer’s Address School address License plate number Physical description and current photograph Text of the sex offense Community Notification requirements? where youth resides, works and goes to school law enforcement agencies (including probation) public housing neighboring schools Agencies that conduct background checks child welfare agencies any organization or individual requesting the information

Slide 45 : DESIGNS a national online registry – a web site searchable by anyone, anywhere. New statutory provisions for the National Sex Offender Registry and the Dru Sjodin National Sex Offender Public Website that compile information obtained from registration programs across the country and make it readily available to law enforcement or the public. Federal development of software tools, which registration jurisdictions will be able to use to facilitate the operation of their registration and notification programs in conformity with the SORNA standards. SORNA: Substantial Compliance continued-10

Slide 46 : States that have passed laws to be in compliance with SORNA - as of October 10, 2008: 1. Delaware – DE SB 60 2. Florida – FS 943.043 3. Louisiana – LA HB 970 4. Mississippi – MS SB 2484 and SB 2668 5. Ohio - Ohio SB 10 6. Nevada - NV AB 579 7. Oklahoma – HB 1760 8. New Hampshire – HB 1640 9. Nebraska – LB 957 10. Missouri – SB 714 11. Arizona – SB 1628 Montana – SB 156 Virginia – SB 590 SORNA: Compliance So far … To date no state has been deemed to be in “substantial compliance” with SORNA i.e. no state has been determined to be in “substantial compliance” by the SMART Office. All states must submit registration laws to be audited by the SMART office by April 2009.

Slide 47 : WV KS VA These states require juveniles adjudicated of a sex offense in juvenile court to register. MT WY NM PA IA ND ID OR CA NV CO AZ TX SD LA OK UT NE GA AR MO KY AL MN NY ME FL IL WI MI OH IN MS SC NC WV TN AK VT NH CT MA RI NJ DE MD DC OK VA WA HI KS Passed laws to be “in compliance” with SORNAas of April 2, 2009 MT WY NM IA ND ID CA CO AZ TX SD WA OK UT NE GA AR MO KY AL MN NY ME IL WI MI IN SC NC TN AK VT NH CT MA RI NJ DE MD DC OR PA NV OK LA MS FL OH VA

Slide 48 : WV KS VA These states have been deemed by the Department of Justice’s SMART Office to be in compliance with the SORNA guidelines MT WY NM PA IA ND ID OR CA NV CO AZ TX SD LA OK UT NE GA AR MO KY AL MN NY ME FL IL WI MI OH IN MS SC NC WV TN AK VT NH CT MA RI NJ DE MD DC OK VA WA HI KS States deemed to be in compliance with SORNAas of September 29, 2009 WY NM IA ND ID CA CO AZ TX SD WA OK UT NE GA AR MO KY AL MN NY ME IL WI MI IN SC NC TN AK VT NH CT MA RI NJ DE MD DC OR PA NV OK FL OH VA MS MT

Slide 49 : US House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security: Hearing on the “Barriers to Timely Implementation of SORNA”

Slide 50 : Subcommittee on Crime, Terrorism, and Homeland Security Robert C. “Bobby” Scott, Chairman and Louie Gohmert, Ranking Republican Member Hearing on “Sex Offender Registration and Notification Act (SORNA)” 2:00 p.m. Tuesday, March 10, 2009 2141 Rayburn House Office Building Washington, DC ______________ US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-1)

Slide 51 : GENERAL IMPRESSION OF THE HEARING Chairman Robert “Bobby” Scott and the Subcommittee on Crime were completely engaged in the issue. Members of the Subcommittee asked several questions extending the hearing well past the designated 1 ½ hours (the hearing was nearly 2 ½ hours in duration). Copies of our majority witnesses’ written testimony is available upon request. US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-2)

Slide 52 : THIS IS JUST THE BEGINNING . . . This hearing was just the beginning of what I hope, are a series of forums to illuminate the barriers to implementing SORNA. It would be premature to provide any details about substantive decisions. I can say that to my sheer delight, towards the end of the hearing, Chairman Scott stated that “there appears to be a consensus that the Subcommittee needs to extend the implementation deadline.” The Subcommittee seemed to garner that in addition to the fiscal and time constraints there may be some substantive problems with the SORNA that need to be remedied in order for jurisdictions to comply. Before we move on to the next steps, I would like to recap some of the goals my colleagues and I set for this first phase. To get a foot in the door on Capitol Hill and start identifying the barriers to implementing SORNA, especially as they relate to juveniles; Create an environment to make it safe for law enforcement and elected officials to speak out against the SORNA; Attempt to get legislators to delay the July 27, 2009 enforcement date of the SORNA Urge lawmakers to consider statutorily reforming the Act. US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-3)

Slide 53 : Congressional Hearing Examines State Barriers to Compliance with the Adam Walsh Act? On March 10, 2009, the Subcommittee on Crime, Terrorism and Homeland Security of the U.S. House Committee on the Judiciary held a public hearing titled “Sex Offender Registration and Notification Act (SORNA): Barriers to Timely Compliance by States.” The purpose of the hearing was to examine the reasons behind states’ failures to come into compliance with the mandates of the SORNA provisions of the Adam Walsh Child Protection and Safety Act of 2006. The hearing was chaired by Rep. Bobby Scott, Chair of the Subcommittee, and attended in whole or in part by Rep. Louie Gohmert (R-TX), Ranking Member of the Subcommittee; Rep. Sheila Jackson Lee (D-TX); Rep. Tom Rooney (R-FL); Rep. Ted Poe (R-TX); and Rep. Pedro Pierluisi (D-PR). Under the Walsh Act, states must come into substantial compliance with the provisions of SORNA by July 27, 2009. To date, however, no state has been deemed to be in substantial compliance by the federal Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (“SMART Office”) … - more on the next page – US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-4)

Slide 54 : . . . In addition, states continue to struggle with or oppose certain provisions of SORNA or the federal guidelines implementing SORNA, including but not limited those provisions that apply the mandates retroactively and subject certain juveniles age 14 or older adjudicated in juvenile court to mandatory registration on a national sex offender registry for a period of 25 years to life. US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-5) . . . During the course of the hearing, the Subcommittee questioned and received testimony and recommendations for corrective action from a number of expert witnesses, including: LAURA ROGERS, former Director, SMART Office; EMMA DEVILLIER, Asst. Attorney General, Criminal Division, Office of the Attorney General of Louisiana, Chief, Sexual Predator Unit; MADELINE CARTER, Principal, Center for Sex Offender Management; ERNIE ALLEN, President & CEO, National Center for Missing & Exploited Children; MARK LUNSFORD, father of Jessica Lunsford; DET. ROBERT SCHILLING, Sexual Assault and Child Abuse Unit, Seattle AMY BORROR, Public Information Officer, Office of the Ohio Public Defender In addition, states continue to struggle with or oppose certain provisions of SORNA or the federal guidelines implementing SORNA, including but not limited those provisions that apply the mandates retroactively and subject certain juveniles age 14 or older adjudicated in juvenile court to mandatory registration on a national sex offender registry for a period of 25 years to life.

Slide 55 : The March 10 hearing is expected to be the first in a series of hearings that may lead Congress and/or the U.S. Department of Justice to administratively or statutorily extend the Act’s compliance deadline for one or two additional years for the purposes of addressing current barriers to compliance and otherwise amending the Act or the SORNA guidelines promulgated by the SMART Office in June 2008. ? Source: The Coalition for Juvenile Justice (CJJ) has posted a brief summary of the US House Judiciary Hearing on SORNA on their website [See http://juvjustice.org/newsletter_29.html#article_213]. US House Committee on the Judiciary Subcommittee on Crime: Hearing on SORNA (continued-6)

Slide 56 : RHODE ISLAND

Slide 57 : R.I. gets extension on complying with sex offender law 01:00 AM EDT on Tuesday, September 22, 2009 By Katie Mulvaney Journal Staff Writer PROVIDENCE — Rhode Island is getting an extra year to comply with a federal law that would create a nationwide network of sex-offender registration and notification programs. But despite the additional time, serious challenges still stand in the way of the state meeting the requirements of the law by July 2010, said Michael J. Healey, spokesman for the attorney general’s office. The state might even have to ask for another year’s reprieve. “We have a lot of work to do in a very short time.” . . . Attorney General Patrick C. Lynch recently detailed the obstacles in a letter to Governor Carcieri, House Speaker William J. Murphy, … Complying with the act will mean significant changes to the state’s sex-offender registration and notification laws. Under the federal act, for example, a sex offender’s risk level would be based on the offense committed. Currently, a sex offender notification board assigns an offender’s level based on a predicted risk that he or she will reoffend, after a review of his or her criminal history, disciplinary record in prison and course of treatment, among other factors … Another … RHODE ISLAND Another concern Lynch raised in his letter is that the law would require community notification for anyone over 14, including juveniles involved in a crime of violence or a crime against a child under 12. Minor offenders — even those whose cases go through closed Family Court trials — would have to update registration information three times a year for at least 25 years, perhaps for the rest of their lives. Currently, in Rhode Island, the community is alerted to the presence of juvenile sex offenders, but their information cannot be posted on the state’s Web site.

Slide 58 : THE EFFECT OF EXPUNGEMENTS

THE EFFECTS OF EXPUNGEMENT : THE EFFECTS OF EXPUNGEMENT Delaware v. Fletcher, 2009 Del. LEXIS 250 (May 27, 2009) The two petitioners in this consolidated case had been ordered to register based on juvenile adjudications for sex offenses. Each successfully completed their periods of probation, and asked for an expungement of their convictions, and a termination of their juvenile registration requirement. The Court held that their convictions could be expunged even though they had been required to register as sex offenders, and that once those convictions were expunged, they were no longer required to maintain their sex offender registration.

Slide 60 : THE EFFECT OF PRIOR JUVENILE ADJUDICATIONS

THE EFFECT OF PRIOR JUVENILE ADJUDICATIONS : THE EFFECT OF PRIOR JUVENILE ADJUDICATIONS State v. Reese, 2009 Kan. App. LEXIS 786 (July 31, 2009) • Recidivism determination—for registration purposes • Prior conviction a juvenile adjudication Kansas has heightened registration requirements for offenders “upon a second or subsequent conviction”. Reese had been convicted as a juvenile of an offense that would have Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office U.S. Department of Justice/Office of Justice Programs enhanced his registration requirement; however, because there was an obvious difference in the system between juveniles and adults required to register, that prior juvenile adjudication could not serve to enhance his current registration requirement. The court paid particular attention to the fact that juvenile adjudications were not included in the statutory definition of ‘conviction’. . . .because there was an obvious difference in the system between juveniles and adults required to register, that prior juvenile adjudication could not serve to enhance his current registration requirement.

Slide 62 : IV. Pushing Back SORNA Legislation

Slide 63 : What Science says about juvenile sexual offending behavior … KNOW WHAT THE LITERATURE SUGGESTS ABOUT JUVENILE SEXUAL OFFENDING BEHAVIOR: The literature on adolescent sexual offense is rapidly emerging and yielding some surprises regarding prediction of re-offense: In a recent study examining data from the Second Philadelphia Birth Cohort Study to understand the natural history of sex offenders and their involvement in sexual offending from age 10 to age 26, a number of key findings have emerged. First, only one in ten juvenile sex offenders have a sex-related offense during the first eight years of adulthood. Second, 92% of all the cohort males with adult sex records had no juvenile sex offense. (Zimring, 2006). Another new study employs data from three birth cohorts from Wisconsin to examine the link between juvenile and adult sex offending, and its implications for current sex offender public policy. The results which emerged from this large cohort study also found that the fraction of juvenile sex offenders who committed adult sex offenses was quite small. Second, the best predictor during a juvenile career of adult sex offending was the length of the juvenile record rather than whether a boy committed a sexual offense. Whether a male had a juvenile sex offense police contact contributed little to predicting their likelihood of adult sex offending. This study’s findings also indicated that concentrating effort on those who were juvenile sex offenders will miss more than 90% of the cohort members who commit sex crimes as adults and will misidentify 90% of the juveniles as adult offenders. (Zimring, 2007).

Slide 64 : ILLINOIS

Slide 65 : People v. Birkett, 909 N.E.2d 783 (Ill. 2009) • Juvenile Registration • Compelled by Writ of Mandamus Where a juvenile court judge refused to order a juvenile adjudicated of a qualifying offense to register as a sex offender, a writ of Mandamus sought by the state was properly granted, compelling that order to be made. ILLINOIS

Slide 66 : MASSACHUSETTS

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Slide 68 : CALIFORNIA

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Slide 70 : COLORADO

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Slide 72 : KANSAS

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Slide 74 : HAWAI'I

Slide 75 : Chair Waters and Members of the Committee: The Attorney General strongly supports this bill. The purpose of this bill is: to amend chapter 846E, Hawaii Revised Statutes (HRS) , Hawaii's sex offender registration laws, to comply with parts of Title I of the Adam Walsh Child Protection and Safety Act of 2006 . . . This bill does not provide for compliance with the following significant SORNA requirements: (1) Registration of juveniles, fourteen years or older, who have been adjudicated of committing aggravated sexual abuse crimes. HAWAI'I This bill does not provide for compliance with the following significant SORNA requirements: (1) Registration of juveniles, fourteen years or older, who have been adjudicated of committing aggravated sexual abuse crimes.

Slide 76 : VERMONT

Slide 77 : VERMONT - On March 20, 2009, the Vermont Senate Judiciary Committee voted out its “Adam Walsh” bill: They did not go back and revisit the issue of including adjudicated delinquents on the Internet Sex Offender Registry so, at least for now, those youth will not be subject to the registry requirements. Vermont Defender Bob Sheil, does not foresee any floor amendments in the Senate that would address that issue. Some think that the Vermont Department of Public Safety will raise the juvenile issue again when the bill is being considered by House Judiciary. We hear that this committee has been pretty good on children’s issues. VERMONT

Slide 78 : THANK YOU!!