Weekly Notes: Walsh Act update, new funds from OJJDP, and more

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***Well, National Hamburger Day (May 28) came and went with no announcement on who might lead the Office of Juvenile Justice and Delinquency Prevention. This is day number 858 of the Obama administration with no nominee to serve as administrator of the office.

In the meantime, it appears Attorney General Eric Holder is fine with shouldering some of the load on juvenile-related appearances on behalf of the Justice Department. He released a Public Service Announcement on the Defending Childhood Initiative last week, and flew to Minnesota last Friday to address a youth violence prevention conference in the state. This week, he teamed up with a few characters from popular HBO series The Wire to launch a website aimed at helping governments serve drug-endangered children.

***OJJDP issued two interesting solicitations this week, looking for training and technical assistance providers on two major projects.

Defending Childhood: This is for nonprofits and for-profits interested in being the technical assistance provider for the initiative’s second phase. The agency expects to provide $1 million over two years; unless Defending Childhood becomes more of a permanent fixture at Justice – as Holder hopes – that could be the last money it gets.  Click here to read the solicitation; deadline is July 11.

The other solicitation is for a cooperative agreement to serve as a National Training and Technical Assistance Center for Truancy Prevention and Intervention. The winner will receive $400,000 for the first year, during which it will assist OJJDP with the development of a truancy prevention demonstration project for 2012. The agreement could be extended for as long as five years at a total of $2.4 million. Click here to read the solicitation; deadline is July 11.  

***Most state legislatures will adjourn by the last day of June. That happens to be the last month before a state will face a federal penalty unless it comes into compliance with the sex offender registry requirements of the Adam Walsh Act.

States that fail to comply with Walsh by July face a 10 percent cut to their Byrne Justice Assistance Grants, but scores of states have concerns about certain barriers to making the law work; 21 states cite inclusion of juvenile offenders as a barrier. And almost all of them fear that the costs incurred by creating the registry, and then defending it against legal challenges, will far exceed the cost of taking the Byrne Grant hit.

The act is a point of contention between some of its Congressional supporters and the governments of states they represent. House Judiciary Chairman Lamar Smith (R-Texas) introduced the 2009 bill to reauthorize Walsh; Texas conservative policy analyst Marc Levin said he hadn’t heard a peep about Walsh Act during this legislative session and there was virtually no chance that the state would be compliant by July.

Rep. Jim Sensenbrenner (R-Wisc.) chaired a February hearing of the House Judiciary Committee about the Walsh Act, and expressed frustration at the lack of states nearing compliance. His home state has yet to comply. 

Four states have been compliant for several months: Ohio, South Dakota, Florida and Delaware. On May 12, the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) announced three more states had gained compliance: Michigan, Nevada and Wyoming. JJ Today, with the help of intern Andrew Atwal, sought out details about the three states’ compliance.  

Nevada provided the biggest surprise: the state basically has been forbidden by a court injunction from imposing Walsh-compliant legislation. The state passed legislation in 2008 that SMART Director Linda Baldwin said would have gained the state compliance, but a federal district court judge declared the law unconstitutional because it required retroactive registration of people into the sex offender database. The case is still being contested in the courts.

But there is a caveat in the Walsh Act that enables a state not fully in line with the act to gain compliance, if the discrepancy is based on a binding court decision.

SMART re-reviewed Nevada’s situation, Baldwin said, and decided that “as long as the only impediment was litigation, it would not be correct to penalize Nevada for its Byrne money, because that would be a permitted exception” to substantial compliance. 

The legislation that got Wyoming into compliance puts juvenile sex offenders on the registry for the first time in state history. The criterion for including juveniles appears to be measured: Only the most serious (Tier 3) juvenile offenders are required to register, and they are exempt from the public sex offender database.

Michigan’s compliance legislation only includes on the registry those juvenile offenders who were above the age of 14 when they committed the qualifying crime. In addition, teens can avoid the registry for crimes related to consensual sex with a partner between 13 and 16 years of age – these cases are often called Romeo and Juliet cases – unless the offender is more than four years older than the victim. Juveniles who are currently on the state registry for “Romeo and Juliet” crimes will also have the ability to petition a judge to get their name removed.

On May 16, there was a report on the website of Fox4 Kansas City that Kansas had “become the fifth state in the nation to adopt The Adam Walsh Act,” but SMART Director Baldwin said “that was a surprise to us.” Kansas has definitely not been informed, at least not publicly, that it is in substantial compliance with the Walsh Act.

So with 54 days left until the July 27 deadline, there are seven states that officially are in substantial compliance.

At a House Judiciary Committee hearing in February, SMART Deputy Director Dawn Doran said the office was “reasonably confident” that between 10 and 15 states would gain compliance in July, but did not specify which states were close.

Nicole Pittman, who tracks Walsh Act legislation and other juvenile-related policy for the Defender Association of Philadelphia, believes the number could be much higher than Doran’s prediction.  Based on her survey of states, “close to 20 or more states submitted SORNA compliant legislation in February, March, April and May WITHOUT dealing with the barriers to implementation,” she said in an e-mail.

Pittman said she is dismayed at the “from the frying pan into the fryer” approach to Walsh compliance. “Instead of moving to a comprehensive system to track sex offenders, we are quickly moving toward a piecemeal, arbitrary conglomeration of registration laws based largely on misconceptions, fear and habit instead of based on evidence-based science,” she said.

JJ Today isn’t sure what the rush is all about when the Byrne fine for this year can  simply serve as a type of deadline extension for states. As explained in this piece, states are able (with SMART office approval) to use the 10 percent lost for noncompliance if  the money is spent on activity related to getting compliant.

***A lot of juvenile facilities are being mothballed as part of budget cuts. In just the past week, JJ Today saw news of closures in Washington, Florida and Wisconsin. California will almost certainly shut down more, or perhaps all, of its state training schools if the budget plan includes a transfer of responsibility for juvenile offenders to the counties. Are there any closures in your area? Let us know, Youth Today is considering publication of a story on such closures.  

California’s adult system was told last month by the U.S. Supreme Court to deal with overcrowding in state prisons. This could be accomplished either by releasing thousands of prisoners, finding/building more capacity at the state level, or paying the counties to hold more offenders with short sentences in local jails. University of California law professor and juvenile justice expert Barry Krisberg said the latter option will be the one most relied upon.

Krisberg and several other West Coast advocates said the Supreme Court decision will have no impact on the state’s juvenile offenders. They explained that even juveniles who are transferred to adult court for prosecution are held in juvenile facilities until they turn 18, sometimes even longer.