Juvenile sex offenders in Ohio will no longer be required to register as sex offenders for life, the state’s Supreme Court ruled last week. The 5-2 decision ruled the lifetime requirement is cruel and unusual punishment, reigniting a national debate on how young people convicted of certain sexual offenses should fare under the criminal justice system.
The majority opinion found certain parts of the Ohio Adam Walsh Act enacted in 2008 unconstitutional. Many states expanded laws pertaining to juvenile sex offenders following federal legislation in 2006 that sought to standardize how young sex offenders were classified and registered across the nation.
“Registration and notification requirements frustrate two of the fundamental elements of juvenile rehabilitation: confidentiality and the avoidance of stigma,” Ohio Justice Paul Pfiefer wrote in the court’s majority opinion. “Confidentiality promotes rehabilitation by allowing the juvenile to move into adulthood without the baggage of youthful mistakes.”
As a population, juveniles convicted of sexual offenses reoffend at a lower rate than their adult counterparts and juveniles charged with other delinquent behavior, according to the National Center on Sexual Behavior of Youth. About 5 percent to 14 percent of juvenile sex offenders
reoffend recidivate by committing some form of criminal offense, compared to 40 percent of convicted adults and anywhere from 8 percent to 58 percent of juveniles who participate in other delinquent behavior.
Ohio was among the first to comply with near identical state-level laws, Pfiefer noted, yet since then many states have refused to follow suit – based largely on opposition to lifetime registration and notification requirements.
In 2011, the U.S. Attorney General Eric Holder modified guidelines to the federal law, Title I of the Adam Walsh Act, also known as the Sex Offender Registration and Notification Act (SORNA), removing the requirement that lower jurisdictions publicly disclose juvenile sex offender information following adjudication and making it optional for states to provide the same information to sex offender websites, schools and other specified groups.
That same year, the first comprehensive survey looking at state laws for juvenile sex offender registration was published. Among the findings in “A Snapshot of Juvenile Sex Offender Registration and Notification Laws: A Survey of the United States:”
- Juveniles are subject to sex offender registration and notification requirements in 35 states.
- Seventeen of the states requiring registration of juveniles adjudicated delinquent do not subject them to adult registration requirements.
- Juveniles are subject to lifetime registration in seven states.
“It feels like almost every state objects to the cost and the juvenile [privacy] issues,” Human Rights Watch Researcher and author of the snapshot, Nicole Pittman, said – adding that only three states (New York, California and Texas) have officially refused to comply. “Law enforcement does not feel it’s necessary to track kids like they do adult predators, and it’s taking away valuable resources.”
“It’s not an effective tool.”
Despite efforts to regulate the classification and handling of juvenile sex offenders across the nation, the study found that state registration requirements varied widely more than five years after the federal legislation went into effect.
The range of state laws is due, in part, to varying interpretations of SORNA, Pittman said.
It remains a mystery whether Georgia met a critical deadline this week to comply with a federal ruling known as the Adam Walsh Child Protection and Safety Act of 2006.
“We can’t say for sure at this point, we have packets arriving in droves,” said United States Department of Justice (DOJ) Spokeswoman Kara McCarthy. “It may take up to three months for us to go through all of the packets we have received.”
Wednesday was the deadline for the peach state and more than 30 others to implement the federal mandate that requires states to establish a sex offender registry for adults and juveniles that connects with a national registry.
“To date, 14 states, nine tribes and one territory have substantially implemented Sex Offender Registration and Notification Act (SORNA) requirements,” said Linda Baldwin, Director of DOJ’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office, which administers SORNA. “We are reviewing as quickly as possible the materials submitted.”
DOJ has confirmed that Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota and Wyoming have substantially implemented SORNA, along with nine native American tribes and the U.S. territory of Guam.
States, tribes and territories that did not meet DOJ’s deadline this week will be denied different amounts of government funding for the year. The Walsh Act specifies that those that failed to substantially implement SORNA by the deadline would be subject to a 10 percent reduction in the amount awarded to the jurisdiction under the Edward Byrne Memorial Justice Assistance Grant (JAG) program. Jurisdictions often use these formula grants to improve state and local criminal justice programs with an emphasis on violent crime and serious offenders. The Act also permits states and territories to potentially recoup the 10 percent reduction in a future fiscal year if it is demonstrated that these funds will be used to implement SORNA programs. Sources tell JJIE.org that $750,000, or 10 percent of the estimated $7.5 million of the JAG money allotted to Georgia this fiscal year could be at stake.
Sources with the Georgia Bureau of Investigation, Criminal Justice Coordinating Council (CJCC) and Georgia Department of Juvenile Justice (DJJ) have declined comment on the matter, with the latter deferring to a response from Gov. Nathan Deal’s office. “We’re awaiting a response from the governor’s office, DJJ spokeswoman Scheree Moore said. “We can’t comment until we hear back from them.”
CJCC Executive Director Barbara Lynn Howell did not immediately reply to requests for interviews, but indicated earlier this week by telephone that state officials had been assessing the cost of implementing the registry system versus the potential penalties faced for compliance failure. Sources close to JJIE.org have confirmed that the price tag for implementing the system could cost more than the revenue lost.
Georgia Council of Juvenile Court Judges (CJCJ) Staff Attorney Ann Kirkhope said in late 2007 or early 2008, shortly after the federal law was passed, a task force was assembled in Georgia to study the issue. The group, comprised of the Council, along with the GBI, Georgia Sheriff's Council and other stakeholder groups, met 10 to 15 times, she said, to discuss how the statute could be carried out in the state.
"We discussed the advantages and disadvantages to being in compliance," she said. "There was so much to consider; the infrastructure had to be in place. We knew there would be a lot of changes from what we currently do [in reference to sex offenders in Georgia]. We discussed what personnel would be needed, what technology and equipment would have to be in place to make the systems in all the different counties compatible. We knew that Byrne Grant money would be at stake but that it could cost way more to implement the SORNA requirements."
Kirkhope said the group eventually disbanded after it reached a point where the work of the task force was only viable if the "powers-that-be decided Georgia needed to be in compliance," she said. "That was not a decision that we could make. Only the governor's office can do that."
Even if Georgia chose to submit an application for compliance in time for the recent July deadline, she said, sex offender guideline changes would have to be drafted into a bill and approved by the state legislature to become law.
"It still has to go through the legislative process," she said.
Also at issue with Walsh Act enforcement are concerns about whether juveniles should be required to be on a registry list at all. In fact, a document published as part of DOJ’s testimony in a hearing on the Walsh Act indicated that several states cited “juvenile requirements” as a barrier to complying with the Act.
SORNA sets minimum requirements for who to include on the registry and how long to include them. SORNA mandates that certain juvenile sex offenders be included, although a supplemental guideline issued by DOJ permits states to keep juvenile registrants on a non-public list.
Supporters of the sex offender registry legislation argue that non-compliance allows "dangerous" sex offenders to find the gaps and move around accordingly. Critics, however, believe that the danger in non-compliant jurisdictions is exaggerated. During an interview for an unrelated article earlier this week former DJJ Commissioner Garland Hunt affirmed that he believes both sides have strong arguments.
“I’m not sure the stance that the governor and DJJ are taking on that, so I prefer not to comment on that in particular,” he said. “But, I will say with sex offenders you have got to be very careful. You don’t want to stain somebody for life, so I think it should be looked at on a case-by-case basis. However, public safety is a great issue. If it’s determined that [a juvenile be listed on a registry] is what’s best for public safety, that has to be a priority.”
Kirkhope said the juvenile issue came up during the task force meetings.
"There was plenty of discussion on that; not just in our state," she said. "When we read the comments from other states, a number of organizations and agencies were speaking out about juvenile names being on a registry. Many of the states that immediately complied with the Walsh Act already had similar systems where juveniles are listed for certain higher level offenses. Ohio is one of those states."
This July deadline was the third in the slow move toward Walsh Act compliance. All states were granted a blanket extension by Attorney General Eric Holder in July of 2009. States were allowed to ask individually for extensions in 2010, and all but the initial four compliant states received one. JJIE.org will continue to update you as our request for interviews and requests are met.
States have until July to pass legislation that requires juveniles to be included on the sex offender registry database. The Sex Offender Registry Notification Act (SORNA), part of the Adam Walsh Act, requires states to register kids and teens, but gives states control on how many and which juveniles are included, according to Youth Today.
So far, Florida, Ohio, South Dakota and Delaware are the only states currently in compliance with SORNA. If the other 46 do not comply, they will lose a portion of the Justice Department’s Byrne Grant, which supplies criminal justice systems with millions of dollars.
Attorney General Eric Holder has pushed the deadline back twice now, causing frustration among supporters of SORNA. Sen. Byron Dorgan (D-N.D.), a SORNA supporter, sent a letter to Holder urging him to enforce the July 2011 deadline, according to the Scripps Howard News Service.