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

Lecture TopicTOPIC: THE LEGAL AND LEGISLATIVE RESPONSE

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

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Use SlideUse Slide #4: Confidential Information
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Use SlideUse Slide #9: Cases Excluded From Juvenile Court
Use SlideUse Slide #10–11: Cases Waived to Adult Court
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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:

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.

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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:

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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

Use SlideUse Slide #15: National Chronology of Sex Offender Registration and Megan’s Law Legislation

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.

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