Amy Borror SORNA

The Adam Walsh Act and Juveniles : The Adam Walsh Act and Juveniles NLADA Defender Trainers Section Webinar September 30, 2009

“If you can’t be a good example, then you’ll just have to serve as a horrible warning.”--Catherine Aird : “If you can’t be a good example, then you’ll just have to serve as a horrible warning.”--Catherine Aird

Ohio before AWA : Ohio before AWA Adult sex offender registry: SORN (sex offender registration & notification) Juvenile sex offender registry: JSORN (juvenile sex offender registration & notification): not a public registry Categorized offenders as sexually oriented offender, habitual sexual offender, or sexual predator Classification based on likelihood to reoffend Separate classification hearing; state had burden to prove likelihood to reoffend by clear & convincing evidence

Ohio Senate Bill 10 : Ohio Senate Bill 10 Introduced in February 2007, signed into law June 30, 2007, went into full effect January 1, 2008 Pushed by Ohio Attorney General Implements offense-based, three-tier classification system

Lobbying : Lobbying We focused our testimony on two broad objections: Retroactivity Juveniles

Retroactivity : Retroactivity Federal AWA requires retroactive classification of those incarcerated, under supervision (parole/probation), on a sex offender registry, and those who re-enter justice system because of another crime – “super-retroactivity” Federal AWA has an “out” clause: a state can still be in substantial compliance if the state’s highest court rules that part of the law violates state constitution

Retroactivity, cont. : Retroactivity, cont. Federal AWA is not retroactive; one-sentence delegation of authority to the U.S. AG (42 U.S.C. Sec. 16913(d)) Emphasized in recent 9th Circuit ruling: “The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders … including juvenile delinquents.” (U.S. vs. Juvenile Male, CR-05-00054-SEH)

Juveniles : Juveniles We saw juveniles as our best chance of amending the bill Law and science on our side Inherent understanding that kids are different Easier to rally allies Similar lobbying efforts previous year on Jessica’s Law

What we argued… : What we argued… History of juvenile court system Amenability to treatment Roper v. Simmons Brain science Allstate ad Low recidivism rates Limited due process protections High waiver of counsel rate Equal protection Public safety: dilute effectiveness of registry, pedophiles using registry to find kids

…and argued : …and argued Case examples Financial cost: no federal bonus $, cost of implementation & increased incarceration Non-financial costs: families not willing to report, cases pled down to assaults Law enforcement and victims groups oppose over-inclusive public registry U.S. AG guidelines: foreign & Indian tribal courts What is “substantial” implementation?

Really bad legislation : Really bad legislation As introduced, SB 10 included all kids age 14+ adjudicated of certain Tier III offenses on internet registry Would have affected hundreds of kids: 95% of juvenile sex offenders in DYS and 90% of juvenile sex offenders in private treatment programs

Less-bad legislation : Less-bad legislation Only kids transferred to adult court or designated “serious youthful offenders” Includes only 2–3% of juvenile sex offenders in DYS (only 11 kids initially) Applies retroactively to anyone on SORN or JSORN and to anyone incarcerated for a qualifying offense – no “super retroactive” application

Ohio kids under AWA : Ohio kids under AWA Tier I: register for 10 years, in-person verification annually Tier II: register for 20 years, verification every 180 days Tier III: register for life, verification every 90 days, possible community notification PRQJOR: public registry-qualified juvenile offender registrant, Tier III + included on internet

Judicial discretion : Judicial discretion Juvenile courts have discretion to classify 14- and 15-year-old first-time offenders Mandatory review hearing upon completion of disposition Petition for reclassification or declassification Motion to terminate PRQJOR child’s duty to register

Ohio’s transition to AWA : Ohio’s transition to AWA Ohio AG sent 35,000 reclassification letters Sheriffs’ workloads increased estimated 60% 77% sexually oriented ? 13% Tier I 4% habitual offenders ? 33% Tier II 18% sexual predators ? 54% Tier III

Old Law AWA : Old Law AWA

Constitutional Challenges : Constitutional Challenges Ex Post Facto, Retroactivity Separation of Powers Double Jeopardy Due Process Equal Protection Cruel & Unusual Punishment Right to Contract

Constitutional problems with AWA’s application to juveniles : Constitutional problems with AWA’s application to juveniles The guarantee of equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or classes in the same place and under like circumstances. Given that a juvenile offender is placed in the same tier structure as an adult offender, it violates fundamental fairness to deny a juvenile accused of a sexual offense the constitutional safeguards—including full due process, equal protection, and jury trial rights—that adult criminal defendants enjoy.

Equal Protection : Equal Protection Children in juvenile court receive only limited due process protections Lack right to trial by jury and right to grand jury determination of probable cause AWA imposes adult sanctions on juveniles who have not received full protection from the Constitution If the public must be protected from these children, then these children must first be protected by the Constitution

Common Pleas & Juvenile Courts : Common Pleas & Juvenile Courts At least 6,352 challenge petitions filed in 80 of Ohio’s counties Many counties still under county-wide stays, people registering under pre-AWA law, courts waiting for ruling from Ohio Supreme Court Four common pleas courts have found portions of SB 10 unconstitutional

Appellate courts : Appellate courts There have been more than 100 decisions by courts of appeals in SB 10 cases, including more than 20 juvenile cases Cases have raised all constitutional issues and no-law argument Every decision has found SB 10 constitutional as it applies to juveniles Only one, very divided, appellate court has found portions of adult AWA unconstitutional

Ohio Supreme Court : Ohio Supreme Court Chojnacki v. Dann (2008-0991, 2008-0992, consolidated) Certified conflict: “Whether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio's version of the Adam Walsh Act, Senate Bill 10, is a final appealable order.” After oral argument, Court order additional briefing: "Whether sex offender reclassification hearings conducted pursuant to the provision of Am.Sub.S.B. 10 are criminal or civil proceedings." "Whether sex offenders are entitled to the appointment of counsel for Am.Sub.S.B. 10 reclassification hearings if those proceedings are civil in nature."

Also before Ohio Supreme Court : Also before Ohio Supreme Court In re Smith: ex post facto, retroactivity, cruel and unusual punishment, no-law argument State v. Bodyke: ex post facto, retroactivity, separation of powers, double jeopardy, cruel and unusual punishment, due process, right to contracts In re Adrian R.: due process Oral arguments in all four AWA cases will be held November 4, 2009

Compliance with federal AWA : Compliance with federal AWA Jan. 16, 2009, letter from SMART Office: “At this time, Ohio has not achieved the minimum standards for SORNA compliance.” Problems: some offenses in wrong tiers, juvenile inclusion too restrictive, no super-retroactivity

But wait … : But wait … Sept. 23, 2009: SMART Office announces that Ohio has become first state to substantially implement SORNA “Ohio has made great strides since our original report in January 2009. Nevertheless…there remain a handful of outstanding issues which we encourage Ohio to address in the future.”

What does Ohio’s compliance mean for other states? : What does Ohio’s compliance mean for other states? Rationale of SMART Office not yet clear “Substantial” implementation might actually mean substantial, not strict Other states can use Ohio as a starting point, instead of SORNA guidelines: no super-retroactivity, only juveniles treated as adults included on internet registry

What you can do now : What you can do now Use impending implementation of AWA in plea negotiations, request jury trials in juvenile sex offenses cases Ask court to include exemption from registration on journal entries Request dismissal of delinquency finding for societal / best-interest reasons Encourage / assist former clients in getting old records sealed / expunged Collect case examples that highlight flaws of AWA: intra-familial, age of consent, etc.

Knowledge is power : Knowledge is power Begin to educate judiciary via dispositional memos; encourage their involvement in legislation Inform your clients and their families about the possible future impact of AWA Identify sympathetic clients, encourage them to reach out to their legislators Educate experts, treatment providers, social workers about upcoming changes in law, encourage their involvement in legislation Reach out to reporters you know; show them articles from Ohio and Nevada, also, post-Garrido articles

Identify allies (likely & unlikely) : Identify allies (likely & unlikely) National Organization of State Associations for Children (http://www.nosac.org) Parents and foster parents Treatment providers, psychologists, developmental experts Law schools Adult & juvenile prison systems Judges (especially retired), prosecutors, law enforcement agencies Victims groups (NAESV, Wetterling Foundation)

Lobbying on AWA : Lobbying on AWA Ask for ideal, but be ready with alternatives Identify exactly how to limit bill’s application: what specific groups to exclude from registry, what population to apply bill to retroactively, what due process protections are needed, etc. Remember: federal AWA has an “out” clause: a state can still be in substantial compliance if the state’s highest court rules that part of the law violates state constitution

The Adam Walsh Act is: : The Adam Walsh Act is: Unconstitutional when applied retroactively. Bad public policy when applied prospectively. Cost prohibitive.

For more information : For more information http://www.opd.ohio.gov/ The Ohio Public Defender website includes: Testimony offered at Ohio Statehouse Comments submitted to U.S. AG’s office Links to related research and cases Briefs & other information on challenges to SB 10 Sample motions FAQs Court orders Amy Borror, Public Information Officer amy.borror@opd.ohio.gov 614-644-1587