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LITIGATION APPROACHES TO CHALLENGING SORNA 2012 NJDC LEADERSHIP SUMMIT PUERTO RICO» FRIDAY, OCTOBER 26, 2012 LITIGATION APPROACHES TO CHALLENGING SORNA Jill Beeler, Esq. Office of the Ohio Public Defender Columbus, Ohio Nicole Pittman, Esq. Human Rights Watch New York, New York Susan D. Roske, Esq. Office of the Clark County Public Defender/Juvenile Division Las Vegas, Nevada Tobie Smith, Esq. Legal Aid Society of Alabama Birmingham, Alabama SORNA SORNA refers to the Sex Offender Registration and Notification Act which is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law ). SORNA provides a comprehensive set of minimum standards for sex offender registration and notification in the United States. SORNA aims to close potential gaps and loopholes that existed under prior law and generally strengthens the nationwide network of sex offender registration and notification programs. Additionally, SORNA: Enacted on July 27, 2006 Extends the jurisdictions in which registration is required beyond the 50 states, the District of Columbia, and the principal U.S. territories, to include also federally recognized Indian tribes. SUBSTANTIAL IMPLEMENTATION: STATES (16) Alabama Delaware Florida Kansas Louisiana Maryland Michigan Mississippi Missouri Nevada Ohio Pennsylvania South Carolina South Dakota Tennessee Wyoming SUBSTANTIAL IMPLEMENTATION: U.S. TERRITORIES (3) Commonwealth of the Northern Mariana Islands Guam U.S. Virgin Islands SUBSTANTIAL IMPLEMENTATION: TRIBES (36) Please note that most of these systems closely follow the Model Tribal Code. Since most Indian Nations initiated their sex offender registration programs in response to SORNA, in most instances, they have not deviated from SORNA requirements. Because SMART Office Substantial Implementation Reviews are meant to highlight jurisdictions deviations from SORNA requirements, these reports may not be illustrative of the complexity of the registration and notification systems that these jurisdictions have put in place. Bay Mills Indian Community Miccosukee Tribe of Indians of Florida Bois Forte Band of Chippewa Mississippi Band of Choctaw Indians Cherokee Nation Nottawaseppi Huron Band of the Chitimacha Tribe of Louisiana Potawatomi Comanche Nation Ohkay Owingeh Confederated Tribes of the Umatilla Indian Omaha Tribe of Nebraska Reservation Osage Nation Confederated Tribes of Warm Springs Pascua Yaqui Tribe Confederated Tribes and Bands of the Poarch Band of Creek Indians Yakama Nation Prairie Band Potawatomi Nation Fort McDowell Yavapai Tribal Council Pueblo of Acoma Gila River Indian Community Pueblo of Isleta Grand Traverse Band of Ottawa and Sac & Fox of the Mississippi in Iowa Chippewa Indians (Meskwaki) Iowa Tribe of Oklahoma Seminole Nation of Oklahoma Jicarilla Apache Nation Tohono O'odham Nation Kalispel Tribe of Indians Upper Skagit Indian Tribe Kaw Nation Washoe Tribe of Nevada and California Keweenaw Bay Indian Community Winnebago Tribe of Nebraska Kickapoo Tribe of Oklahoma Kootenai Tribe of Idaho Little Traverse Bay Bands of Odawa Indians OVERVIEW UPCOMING HUMAN RIGHTS WATCH REPORT ON THE IMPACT OF SORN LAWS ON CHILDREN Impact on the Family Impact on Education Impact on Employment Impact on Housing Homelessness Impact on Access to Healthcare Psychological Effects Stigmatization Suicide Depression Isolation Vulnerability Shame Impact on Movement Impact on Immigration Status Exposure to Violence Harassment Vigilantism Impact on criminalization Likelihood to Spiral Deeper into the Justice System Failure to Register Felony Convictions *Clarify that this is not recidivism nor is it increased risk for committing additional crimes, including subsequent crimes. INITIAL REGISTRATION Age: 10 Height: 4ft, 6 inches Weight: 71 pounds Shoe: size 6 Kids NEVADA SUSAN D. ROSKE, Nevada Office of the Clark County Public Defender/Juvenile Division SORNA Status: In effect except as it applies to juvenile delinquency adjudications; deemed in substantial compliance May 12, 2011 Date(s) of SORNA Litigation: 2007, 2008, 2009 Case Law: In re Logan D. pending in the Nevada Supreme Court (Case No ); ACLU of Nevada v. Cortez-Masto, 2012 WL (CA9 (Nev.) 2/10/12) NEVADA LAW PRIOR TO ADAM WALSH ACT Adjudicated of certain felony level sex offense subject to community notification Tiered based upon individualized assessment of risk Must be on probation/parole for minimum 3 years Cannot be relieved of community notification until juvenile court makes finding the youth has been rehabilitated Community notification separate from adults and does not include website No registration; probation officer must notify law enforcement of change of school/address If not relieved of community notification by age 21; juvenile court has hearing to determine whether youth will be deemed an adult sex offender for purpose of registration and community notification NEVADA S AWA LEGISLATION FOR JUVENILES Adjudicated: Sexual Assault, Lewdness with minor under 14, Battery with intent to commit sexual assault 14 years of age or older at time of offense Subject to registration and community notification as if an adult Sexual Assault and Battery with intent to commit sexual assault: Tier 3 (lifetime registration and website community notification; juveniles can apply for relief of obligation after 25 years) Lewdness with minor under 14: Tier 2 (25 years of registration and website community notification) Retroactive to juvenile adjudications since 1956 Enacted to go into effect July 1, 2008 Legislation repealed prior procedures for juvenile community notification LITIGATION Attacked Legislation on constitutional grounds: Due Process-Procedural, Substantive and Equal Protection Ex post facto violation Contract Clause Cruel and Usual Punishment FINDINGS BY DISTRICT COURT Legislation as applied to adjudications of delinquency violation of Due Process: Prior law allows court to require high risk juvenile sex offenders to register and subject to community notification if not rehabilitated by age 21 regardless of age at time of the offense New law requires juvenile sex offenders to register and subject to community notification regardless of level of risk New legislation would no longer allow court to require high risk offenders-under age of 14 at time of offense-to register after age of 21 if still not rehabilitated Cited data and evidence presented re brain science and fact that most JSO s fully treatable FINDINGS... No data submitted to support including of low risk JSO s who were 14 years of age or older at time of offense in adult registration scheme and excluding high risk JSO s who were under the age of 14 at the time of the offense Legislation appeared to be made in a perceived need for expediency with no substantive discussion of JSO s Juvenile Court has dual role to rehabilitate JSO s and to protect the public; widespread community notification of low risk JSO s is contrary to the rehabilitation goals; the dual proposes of the Court are jeopardized by the legislation FINDINGS... Abolishing ability to track and supervise high risk JSO s whose offenses occurred prior to 14 while including rehabilitated youth who were over 14 is irrational and contrary to the due process clauses of the state and federal constitutions Stated purpose of the AWA and imputed to the Nevada legislation is not fulfilled by selecting an arbitrary age of 14 and there is no rational relationship between including JSO s as noted above and a legitimate government interest. ORDER OF DISTRICT COURT Legislation as applied to Juvenile Sex Offenders violates the due process clauses of the Nevada and United States Constitutions and therefore void as applied to Juvenile Sex Offenders The statutory provisions repealed by the legislation will remain in full force and effect. Dated April 15, 2008. STATE SOUGHT EXTRAORDINARY WRIT In re Logan D. Nevada Supreme Court order briefing Oral Argument June 2009 Court requested Supplemental Briefing addressing the impact of Federal ruling ACLU v. Cortez-Masto and US v. Juvenile Male, 581 F3d 977 (9 th Circuit 2009) Supplemental briefs filed when above decisions were overturned ACLU V. CORTEZ- MASTO ACLU sought and received temporary injunction of entire legislation in June 2008 in Federal District Court for State of Nevada Permanent injunction granted October 2008 finding the entire Legislation is punitive and therefore violates the Ex Post Facto, Double Jeopardy and Due Process Clauses of the United States Constitution as well as the Contracts Clause of the Nevada and United States Constitutions State appealed to the Ninth Circuit Overturned by Ninth Circuit December 2011 OHIO JILL BEELER, Ohio Office of the Ohio Public Defender SORNA (S.B. 10) effective: January 1, 2008 Substantial Compliance: September 22, 2009 Ohio Supreme Court Rulings 2010-Present Case law: Bodyke, Williams, D.J.S., C.P., Gingell Jill Beeler, Ohio Office of the Ohio Public Defender SORNA (S.B. 10) effective January 1, 2008 Substantial Compliance September 22, 2009 Ohio Supreme Court Rulings 2010-Present Case law: Bodyke, Williams, D.J.S., C.P., Gingell OHIO LITIGATION EFFORTS Challenge Petitions (O.R.C and.032) Direct Representation and Pro Se Assistance Visits to Ohio DYS Institutions Temporary Restraining Orders and Motions for Preliminary Injunction for public registrants Appeals Supreme Court of Ohio Reclassification / Declassification OHIO SUPREME COURT DECISIONS State v. Bodyke, 126 Ohio St.3d 266 (2010) The reclassification by the Ohio attorney general, of registrants whose offenses predate the enactment of SB 10, violates the separation-of-powers doctrine. State v. Williams, 129 Ohio St.3d 344 (2011) Ohio Revised Code chapter 2950, as amended by SB 10, is punitive, and therefore cannot be applied retroactively. JUVENILE CASES In re D.J.S., 130 Ohio St.3d 257 (2011) In re A.R., 130 Ohio St.3d 258 (2011) In re Cases Held for D.J.S., 130 Ohio St.3d 253 (2011) SB 10 cannot be applied retroactively to juveniles. (Remands in both cases have been held for the decision in In re J.V.) In re C.P., 131 Ohio St.3d 513 (2012) Automatic, lifelong registration and notification requirements for public-registry juveniles violate due process and prohibition against cruel and unusual punishment. Registration Eligibility and Timing of Classification Hearing Flow Chart Age at time of offense 13 yrs old (or younger) yrs old yrs old Never a Registrant SYO? SYO? No Yes No Yes No Youth committed to secure facility? No Discretionary Registrant (The court is not required to classify this youth at all). Hearing conducted - Based on consideration of factors in R.C (D), should the youth be classified as a juvenile offender registrant? No If yes, then upon release Prior Adjudication for Sexually Oriented Offense? Yes Mandatory Registrant Yes Mandatory Registrant Prior Adjudication for Sexually Oriented Offense? Yes No Hearing conducted pursuant to R.C to determine Tier level. Public Registry Qualified Juvenile Offender Registrant Automatic Tier III, Community Notification, Publication on esorn No Hearing. Youth committed to secure facility? No If yes, then upon release Court issues order finding that youth is not a juvenile offender registrant. Court issues order finding youth to be a Tier I, II, or III, offender registrant with a duty to comply with the registration requirements in R.C as applicable to juveniles. For Tier III youth, the court also determines whether to order community notification it is not mandatory to order community notification. FAILURE TO REGISTER DECISIONS State v. Gingell, 128 Ohio St.3d 444 (2011) Registrants who were unconstitutionally reclassified (see State v. Bodyke) cannot be convicted for failing to register based upon those unconstitutionally-imposed increased reporting requirements. PENDING JUVENILE CASES In re J.V. Proposition of Law: A juvenile court does not have the authority to impose criminal punishment (including post-release control) after the delinquent child turns 21. In re J.B. Propositions of Law: A juvenile court lacks jurisdiction to hold an initial classification hearing and classify a youth as a juvenile offender registrant after the child completes disposition and is discharged from parole. A juvenile court lacks jurisdiction to hold a juvenile sex offender classification hearing outside of the specified timing requirements of R.C (A). A failure to comply with the timing requirements constitutes a denial of the child's right to due process UPCOMING CHALLENGES & ISSUES Equal protection Timing provisions of statutes Prospective application of punishment to children Out-of-state offenders Failure-to-register cases Accuracy of registry Ohio meets sex-offender registry standards By: Randy Ludlow The Columbus Dispatch - October 05, :10 PM Thirty-four states are in danger of losing federal funding for failing to comply with federal standards for sex-offender registries, but Ohio is not among them. Ohio is one of only 16 states in compliance with the 2006 Adam Walsh Child Protection and Safety Act to create a uniform system of registering and tracking sex offenders, according to the office of Attorney General Mike DeWine. Some states have concluded that it will be cheaper to forfeit 10 percent of their federal law-enforcement grants as a penalty rather than spend millions to upgrade their systems to meet federal requirements, the Associated Press reported. Ohio's sex offender registry lists 19,174 names -- including 1,678 in Franklin County, 314 in Licking County, 133 in Fairfield County, 84 in Delaware County, 66 in Pickaway County, 53 in Union County and 32 in Madison County. Cuyahoga County has the most sex offenders in the state with 2,929. The state spends about $400,000 a year on vendors on top of in-house costs for maintaining the registry, according to DeWine's office. TOTAL DYS ADMISSIONS: SEX OFFENDERS CY 2006 TO 2011 Juvenile Justice Continuum September 19, CCF SEX OFFENDER ADMISSIONS FY 2006 TO 2012 Juvenile Justice Continuum September 19, ALABAMA TOBIE SMITH, Alabama Legal Aid Society of Birmingham SORNA status: Legislation enacted June 9, 2011; effective date July 1, 2011; deemed in substantial compliance July 28, 2012 [compliance review letter from SMART dated July 14, 2012.] Date(s) of Litigation: Alabama s SORNA legislation has not been litigated Case law: State v. C.M., 746 So. 2d 410 (Ala. Crim. App. 1999) (holding prior version of Community Notification Act unconstitutional, as applied to juveniles, on equal-protection and ex post facto grounds).
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