States May Be Able to Shield Juveniles from Registries

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States may be able to shield most juvenile sex offenders from inclusion on a public registry and still achieve compliance with the federal Adam Walsh Act, based on the experience of Ohio, the only state thus far to be deemed Walsh compliant by the Justice Department.

Ohio used an inclusion standard for juvenile sex offenders that appears to be significantly narrower than the standards spelled out in guidelines produced by President George W. Bush’s Justice Department in July of 2008, yet the state’s plan was approved by the Obama Justice Department in the fall.  

News of Ohio’s juvenile sex offender plan were circulated in an e-mail by the National Juvenile Justice Network Director Sarah Bryer last week.

The Sex Offender Registry Notification Act (SORNA) aspect of the Walsh Act has caused increasing angst on both sides of the federal-state coin. States face a financial penalty if they don’t comply with SORNA and the Justice Department faces embarrassment if only one of the 50 states can get in line with the act by the July deadline, which was pushed back from last summer.

Many juvenile advocates hate the SORNA requirements as written because they require states to put at least the most serious juvenile offenders on a publicly viewed list. The requirements also mandate that states can include whichever juvenile offenders they want in addition to the minimum requirements.

For any juvenile who is 14 or over, the SORNA regulations require states to register the youth if he has been adjudicated for sexual acts (oral, genital or anal) that involve aggravated sexual abuse.

Ohio originally submitted a plan in 2008 to the Bush Justice Department that subjected only youth afforded due process rights to the registry. That includes any juvenile who is tried and convicted in adult court, or any juvenile handled as a “serious youthful offender.” Ohio youths in that classification remain in juvenile court but are subject to a blended juvenile-adult sentence if found delinquent. Because an adult sentence is involved, they have to be indicted by a grand jury, and are entitled to a jury trial.

Ohio is one of approximately 15 states with a juvenile blended-sentencing statute, which enables judges to impose adult sanctions in juvenile court. States that do not allow blended sentences, should they use the same standards for juvenile inclusion as Ohio did, would expose only youths transferred into adult court to sex offender registries.

For all other juvenile sex offenders, said Ohio Public Defender spokeswoman Amy Borror,  “kids in a juvenile court setting don’t go on the Internet.”

Certain youths handled in juvenile court – mostly those adjudicated for rape or sexual battery charges – would appear on a nonpublic registry viewed only by law enforcement agencies, Borror said.

Four days before Barack Obama was sworn in as president, a letter from Bush’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) informed Ohio Attorney General Nancy Rogers that the state’s plan was not in compliance in regard to juvenile sex offenders.

“Any juvenile adjudicated delinquent of an offense for which SORNA requires registration must be captured as a registered sex offender,” wrote SMART Office Director Laura Rogers. “Ohio’s system would only capture a portion of those juvenile for whom SORNA requires registration.”

But when a plan with the same proposals on juvenile sex offenders was submitted to Obama’s SMART Office, Director Linda Baldwin approved the Ohio plan in September.

The SMART Office decision seems to set a precedent that could significantly limit the number of juveniles exposed to state and national sex offender registries.

Some juvenile advocates monitoring the Walsh Act requirements do not believe any juvenile should be subjected to the public registries. While research on juvenile sex offender treatment is in short supply, there are indications that juvenile sex offenders are more amendable to treatment and far less likely to recidivate than adults.

“SORNA as applied to youth is contrary to the core purposes, functions, and objectives of

our nation’s juvenile justice systems,” said the Association for the Treatment of Sexual Abusers in a July 2007 letter, a year after Bush signed the Walsh Act. “It strips away the confidentiality and the overall rehabilitative emphasis that form the basis of effective intervention and treatment.” .

The original deadline for Walsh Act compliance was the summer of 2009, but Attorney General Eric Holder moved the deadline to July 2010. The Justice Department is also considering requests for another yearlong extension on a state-by-state basis.