New Walsh Act Rules Allow States to Shield Juveniles…Sort Of

The Justice Department proposed new rules this summer that would make it optional for states to include most juvenile sex offenders on a public database. The change was meant to assuage the concerns of some states’ officials about subjecting young offenders to being named on a public list. Juvenile justice advocates say they find the new proposal confusing, so JJ Today went looking for some answers.

“It appears the supplemental guides are contradicting the regular ones,” said Nicole Pittman, a juvenile justice analyst for the Defender Association of Philadelphia, who opposes the inclusion of juveniles on the database. “It’s getting away from the uniformity that Walsh was intending to bring.”

It is just the latest chapter in the messy saga of the Walsh Act and its centerpiece, the Sex Offender Registration and Notification Act (SORNA). The act was signed into law four years ago and originally was to take effect in 2009, but right now only three states are in compliance with Justice Department regulations. The delays arise from fiscal and ethical concerns about inclusion of some or all juvenile sex offenders on public sex offender registries and the monitoring that goes along with registration.

Walsh and SORNA: A primer

SORNA established a national sex offender database of juveniles and adults that would be compiled from databases maintained by the states.

States were required to pass their own legislation by July of 2009 that met SORNA’s guidelines about who had to be included on the national database; for juveniles, that includes any crime committed by a youth 14 or older that involves aggravated sexual assault. States were also advised they could include more sex offenders if they chose, including those convicted of lesser offenses than those mandated in the guidelines.

Failure to pass complying legislation would result in a 10 percent cut to a state’s Justice Assistance Grants.

From the beginning, some juvenile justice advocates were concerned that the new regulations would keep juveniles on public registries for decades and thus jeopardize  their ability to move with their families, get into college or land a job.

Last week, the House of Representatives voted overwhelmingly to add buying a house to that list: the Federal Housing Authority Reform Act of 2010 passed by the House this month included an amendment by Rep. Chet Edwards (D-Texas) that prohibits FHA from giving mortgages to anyone who has been convicted of a sex offense with a minor.

All of these regulations have been put in place despite research that shows juvenile sex offenders are far less likely than adults to commit a second sex offense.

It has been 1,434 days since the Walsh Act was signed into law, and just Ohio, Delaware and Florida are officially in compliance with the act’s SORNA regulations.

Other states have passed laws in efforts to put them in line with Walsh, and are awaiting determinations by Justice’s Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) office.

The original deadline for compliance was July of 2009, which no state met, so Attorney General Eric Holder extended the deadline by a year. Only Ohio had gained compliance as summer began; Holder allowed states to apply for extensions that would give them until July of 2011.

As of today, 35 states and the District have received an extension, according to the SMART office.

What’s the holdup?

Why have so many states been slow to embrace the spirit of such a politically popular piece of legislation? Two factors are the costs to comply and the inclusion of juvenile delinquents.

Most juvenile advocates want to see youth shielded entirely from SORNA because of their amenability to change and the damning effect of a sex offender record on them.

Some states agree. Tennessee’s legislature has gone back and forth on which juveniles to include on its registry. Ohio’s submission for compliance was originally rejected by the Bush administration, in part because it did not include enough of the juvenile sex offender population. Obama’s Justice department looked at the same submission and deemed Ohio compliant in the fall of 2009 (click here for more details).

But the biggest factor keeping states from complying with Walsh is money. State budgets are almost universally brutal right now, and the pressure is on legislators to rein in costs wherever possible.

That has rendered federal carrots and sticks aimed at shaping youth policy less effective.

The penalty for not complying with Walsh – a 10 percent cut to a state’s Justice Assistance Grants – is likely to be significantly lower than the cost of doing what the law asks of states, according to research by the advocacy organization Justice Policy Institute (JPI). JPI wants states to ignore compliance requirements completely, and sent its report on the cost breakdown to state policy makers.

The money factor is also tied to the fact the regulations deal with juveniles. Adding anyone to the SORNA registry commits a state to a very long monitoring period for that individual; the most serious offenders (Tier III) are on it for life, and the minimum length of time for Tier I offender is 15 years. Juvenile sex offenders are the most expensive additions because of their age. And with research indicating that only between 5 percent and 14 percent of juvenile sex offenders recidivate, monitoring these individuals is often the least efficient use of money and enforcement officials’ time.  

Iowa already is feeling the financial sting of sex offender monitoring, reports Des Moines Register reporter Lee Hood. Iowa overhauled its sex offender laws in 2006, before the Walsh Act passed, and the changes removed the juvenile court’s discretionary power to keep juvenile offenders off the state registry. Iowa is one of the 35 states with a compliance extension.    

New rules

Justice proposed eight supplemental guidelines in the Federal Register on May 14. One allows states the option to “exempt from public Web site disclosure information concerning sex offenders required to register on the basis of juvenile delinquency adjudications.”

Should a state accept the exemption, juvenile sex offenders would appear on a database that only law enforcement could view, which is the system currently used by Michigan and other states. Everything else would be the same: the juveniles would have to register and update information, and would be monitored by law enforcement.

“On its face, if confidentiality can be protected, it’s better [that] it’s behind the wall,” said JPI Executive Director Tracy Velazquez. “The question is, can it stay confidential? In some small jurisdictions, where law enforcement has it, sometimes everyone has it.”

Preventing juveniles from appearing on public registries can protect them during the formative years, but what about collateral consequences? Would juveniles’ names appear on a public registry suddenly on their 18th birthday? Could employers, colleges or FHA loan officers find out about their offense through a background check, even if the name never appeared on a public registry? 

The Justice Department’s Office of Justice Programs, which houses the SMART office, provided some answers. 

Would the state have to make the juvenile sex offender’s name and information public once he/she turned 18 and was an adult?

A: No, unless there was a subsequent offense committed.

If a state opted to keep the juvenile’s name private, would a criminal background check still identify the offense even though the person was not on a public registry?

A: Maybe. The availability of juvenile sex offense records would be jurisdiction specific, so it would depend on whether (and to what extent) the state in question seals juvenile records.

You can read the entire supplement guidelines proposal here. The public can submit comments to the SMART office until July 13.

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