CENTER FOR SEX OFFENDER MANAGEMENT
The Effective Management of Juvenile Sex Offenders in the Community
A Training Curriculum

 A Project of the Office of Justice Programs, U.S. Department of Justice

 

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Section 7: The Legal and Legislative Response
1 Hour, 30 Minutes

TOPIC: THE LEGAL AND LEGISLATIVE RESPONSE

Part I: Overall Legal Trends in the Disposition and Management of Juvenile Offenders

As we have discussed, a surge in juvenile violence in the mid–1990s resulted in a series of “get tough on juvenile crime” legislation. These changes were sweeping. Traditional cornerstones of the juvenile justice system were modified or done away with in a number of states.¹ As we mentioned in the treatment section, those changes included things like reductions in the lower age by which youth could be tried as adults, elimination of the strict confidentiality guidelines for some juvenile court records and proceedings, the establishment of mandatory minimum sentence structures for juvenile crimes, and the reduction of judicial discretion in the juvenile and family courts.²

Some examples of how these changes have played out around the country include the following:

• With regard to record confidentiality, nine states (Arizona, Idaho, Iowa, Kansas, Michigan, Montana, New York, Oregon, and Washington) now permit the public release of juvenile court records without qualifying restrictions.³
• Another 15 states (California, Colorado, Delaware, Indiana, Kentucky, Louisiana, Maine, Mississippi, Missouri, Nebraska, New Jersey, Oklahoma, Rhode Island, South Carolina, and Wyoming) allow public access to juvenile court records if the youth has committed a specified offense.⁴
• 24 states (Alaska, California, Colorado, Delaware, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Montana, Nevada, North Carolina, Ohio, Oregon, South Carolina, Texas, Virginia, Washington, West Virginia, and Wyoming) require that certain records never be sealed, expunged, or destroyed, including those in juvenile sex offender cases.⁵
• 13 states (Arizona, Colorado, Florida, Iowa, Michigan, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oregon, Texas, and Washington) permit or require juvenile delinquency hearings to be open to the general public.⁶
• From 1992 through 1999, all states except Nebraska enacted or expanded their laws related to transfer of juveniles to the criminal courts.⁷ As of the end of the 2002 legislative sessions, 22 states (Alaska, Arizona, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Maine, Maryland, Nebraska, Nevada, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin) eliminated altogether the minimum age that youthful offenders could be considered—in some form or fashion—for adult proceedings or for adult sanctions.
• 14 states (Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Louisiana, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Virginia, and West Virginia) have mandatory waivers for cases that meet certain offense, age, and other criteria, and 28 states (Alabama, Alaska, Arizona, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, Washington, and Wisconsin) designate a category of cases that are automatically ineligible to be heard in juvenile court.⁸

Partly as a result of this type of legislation, the number of delinquency cases waived to the adult criminal courts increased by 71 percent between 1985 and 1994⁹ and waivers were common for juveniles who committed sex offenses. And when they were transferred into the adult criminal justice system, those juveniles received fairly significant and punitive consequences. In fact, the majority (73 percent) of sexually abusive youth who were convicted of sexual assault and transferred from juvenile to criminal court in 1996 were sentenced to prison and received an average maximum sentence of 105 months.¹⁰ As we mentioned in the treatment section, this can result in unintended consequences, because when juveniles receive the more punitive types of dispositions and sanctions typically reserved for adults, they actually recidivate twice as often and commit more serious crimes.¹¹ That shift in approach certainly seems to be pretty different from a rehabilitative model for youth and their families, doesn’t it? And based on the outcome data, does it seem to be having the desired effect?

Obviously, these changes in law represent a very important shift in our response to juvenile offenders and suggest a belief that juveniles and adults should be treated the same in our justice systems. Ironically, the fundamental differences between juvenile and adult offenders—and in particular, juveniles’ amenability to treatment—were among the reasons juvenile offenders have traditionally been afforded legal protections that adult offenders have not: a right to confidentiality, sealed records, closed hearings, and a guarantee that up to a certain age, their cases would be tried in juvenile court.

Based on what we have learned over the course of this training, we know—for at least some number of juvenile sex offenders—that delivering appropriate support, interventions, and resources can make a significant positive impact. Indeed, as you have seen, data suggests that juvenile sex offenders are more amenable to changing their behavior, or desisting from criminal activity, before becoming adults.¹² As a result, some experts have argued that the changes in our system’s responses to youthful offenders, including the blanket application of laws that were geared toward adult sex offenders, may be worthy of a second look. More specifically, it has been suggested that some of our legal responses, though well–intended, have been implemented without the full awareness of the important differences between adult and juvenile sex offenders.¹³

To be fair, it was not all that long ago when the field overall—including treatment and supervision strategies—were developed on a similar lack of understanding of the differences between adult and juvenile sex offenders. But because we are learning more and more about these youth as the field evolves, we are perhaps better equipped now to consider our management approaches and strategies, including legal responses, through a developmentally responsive lens. In so doing, we can design more informed responses that will be maximally effective and in a way that reduces the potential for unintended consequences. Perhaps the best place to begin to consider these implications is through the application of registration and community notification laws to youth. First, let me give you a brief overview of how these laws came into play.

Part II: The History of Sex Offender Registration and Notification Statutes

This may come as a surprise to many of you, but sex offender registration laws, a seemingly new phenomenon, were actually introduced in the 1940s in an effort to label and track sexual deviants, including sexual psychopaths. The movement to enforce these laws again gained steam during the late 1980s and early 1990s, after a wave of highly publicized sex crime cases. These high–profile cases caused lawmakers to re–examine sex crime policies and lent support to the wave of “get–tough” legislation. Among the most notable of these incidents:

• In 1989, a Police Chief in Washington State became aware of the pending release of a sex offender who, while in prison, had documented plans to sexually molest school children. The Police Chief weighed the potential for harm against the offender’s right to privacy and decided to notify the community. This was the first instance of community notification in the United States and was widely publicized throughout the country. As a result of the public outcry from these crimes, the Governor of Washington State appointed a task force to recommend changes to the state laws. The task force’s recommendations became an omnibus bill enacted by the 1990 Legislature, outlining sweeping changes in the penalties for sex offenses, including civil commitment, registration, and community notification.
• Also in 1989, a masked man abducted 11–year–old Jacob Wetterling at gunpoint near his home in Minnesota. Jacob remains missing to this day. In 1991, a law named in honor of Jacob resulted in the passage of Minnesota’s sex offender registration act. Prior to this act, law enforcement agencies lacked resources to identify known sex offenders residing in the state, which could assist in the investigation of these types of crimes.
• Seven–year–old Megan Kanka was raped and murdered in 1994 by a twice convicted child molester who lived on her block in New Jersey. Megan’s parents believe that if they had known that a pedophile lived nearby, this crime would never have happened. Megan’s death gave new momentum to the concept of community notification—that residents should be warned when a sex offender moves into their neighborhood. In 1995, a widespread community campaign led to the enactment of community notification legislation in New Jersey, known as “Megan’s Law.”

These tragic events sparked a movement on the national level to provide a swift and strong response to the problem of sexual offending in our communities. For example, in 1994, Congress passed the Jacob Wetterling Act, which required all states to create registries of offenders convicted of sexually violent offenses or crimes against children and to establish more rigorous registration requirements for highly dangerous sex offenders. In May 1996, President Clinton signed the Megan’s Law amendment, requiring all states to conduct community notification on sex offenders. In 1998, another law was passed by Congress, which called for the creation of a National Sex Offender Registry (NSOR). The purpose of the NSOR is to assist in tracking sex offenders as they move between states.

Generally speaking, these federal acts require all 50 states to adopt sex offender registration and community notification laws. States that failed to pass and enact such legislation would have been faced with a 10 percent reduction of their Byrne formula grant funding (with their funding being reallocated to other states that were in compliance with these requirements). The primary goals and objectives of these laws were to:¹⁴

• Serve as a deterrent to potential sex offenders;
• Reduce additional instances of offending by known sex offenders;
• Provide law enforcement with an easily accessible source of information about known sex offenders that did not previously exist; and
• Share information with the public about sex offenders residing in their communities in an effort to equip them to better protect their children.

States moved quickly to implement this legislation, with a majority passing notification and registration statutes for adult sex offenders rapidly between 1994 and 1996. However, as I mentioned, these federal laws did not specify how these statutes were to be applied to juveniles, but rather left it up to the states to decide how juveniles would be affected by these laws. We’ll discuss in the next few sections how this played out around the country.