AB2408 would prohibit Juvenile Judges and Juvenile Prosecutors from allowing minors who admit to committing an egregious sex crime into the “deferred entry judgment” program.

Under Welfare and Institutions Code section 790, children accused of certain offenses may qualify to participate in deferred entry of judgment if they are both legally eligible and suitable. Upon completion of the program which last from one to three years, the child gets the benefit of having his case dismissed and his record sealed.

According to its author, AB2408 would prohibit Juvenile Judges and Juvenile Prosecutors from allowing minors who admit to committing an egregious sex crime into the deferred entry judgment program.

“AB2408 really is a lifetime glass ceiling and punishment for these kids,” stated Los Angeles Juvenile Attorney George Kita. “Many of these allegations involve situations where the alleged victim is a family member and the minor charged lacks the maturity level that adults have. It really defeats the purpose of juvenile court which is rehabilitation. Why would you tie the hands of the courts, probation and prosecutors?”

AB2410 also addresses would prohibit a victim’s home phone and address from being disclosed to a sexually violent predator and AB2409 would allow prosecutors and other state agencies to look at all prior sex crimes committed as a juvenile.

In California, a juvenile charged with special circumstances murder who is alleged to have personally committed a homicide of the victim must be prosecuted in adult court if he or she was 14 or older at the time of the offense. Welfare & Institutions Code section 602(b)(1). Also pursuant to the United States Supreme Court case of Roper v. Simmons (2005) 543 U.S. 551, the court held that the death penalty was unconstitutional as applied to individuals who committed offense before the age of 18. A juvenile charged with certain juvenile law sex offenses must also be prosecuted in adult court if the juvenile was 14 older at the time of the alleged crime and the Juvenile Prosecutor alleged one of the circumstances stated in Penal Code section 668.61(d) or (c) (One strike law). Welfare and Institutions Code section 602(b)(2). Having an experienced Juvenile Attorney to review your child’s case is very important. When a child is prosecuted as an adult, it generally means the Juvenile Prosecutor believes the child is looking at a state prison commitment. Interestingly, the Ventura County Star newspaper reports in an article dated February 17, 2008, that juveniles tried as adults are up 170%.  The Star notes, ” proponents argue that juveniles should be punished for their crimes, but the law must take into consideration that a youngster’s brain isn’t fully developed. State Sen. Leland Yee, D-San Francisco, said that a teenager’s brain isn’t completely developed, and a teen’s impulse control, planning and critical thinking are still not yet fully matured. Yee’s spokesman, Adam Keigman, said Yee has introduced a bill to do away with sentencing juveniles to life without the possibility of parole. The bill was supposed to go to the Senate for a vote in January, but Yee postponed that action in hopes of getting the necessary two-thirds support later this year. Yee believes that a sentence of 25 years to life is fair, and it gives some hope to youngsters that, if they behave in prison, they will be eligible for parole after serving 25 years, said Keigman. There are 232 inmates in the state prison system who committed crimes as juveniles, were prosecuted as adults and sentenced to life in prison without parole, said Seth Unger, spokesman for the California Department of Corrections. Unger said he didn’t have the breakdown on how many of those inmates were convicted in Ventura County.”

California is facing a 2009 deadline to comply with a federal law passed by Congress that require states comply with the Adam Walsh Child Protection and Safety Act or receive a penalty in the form of a 10 percent cut to their share of money from a Federal Grant for crime fighting purposes. The law was signed into law by President Bush in 2006. Under current California state juvenile law, a minor convicted of a sex offense does not have to register unless that child is committed to the California Youth Authority. However, under this new federal law, some juveniles as young as 14 will be listed on states’ online sex-offender registries. States that refuse or fail to comply will lose a 10-percent reduction in criminal justice funding provided by the Byrne Memorial Justice Assistance Grant Program. California currently uses the Byrne grants to pay for drug task forces, police overtime, and other crime enforcement and prevent programs.

“It’s an outrage when you consider the purpose of juvenile court is rehabilitation of a child,” stated Los Angeles Juvenile Attorney George Kita. “When you consider the fact that juveniles are not afforded the right to a jury trial in juvenile court, kids are handicapped in fighting their cases, he added. “If a child is required to be listed on a national registry, you are talking about a life time of harassment as well as not being able to hold down a meaningful job.”

The American Bar Association has also come out opposed to the Adam Walsh Act as it applies to juvenile offenders.

In a letter  written by the American Bar Association,  Denise Cardman writes,” On behalf of the American Bar Association, I am writing to express our opposition to the proposed captioned interim regulations that would apply SORNA retroactively to juvenile offenders.

ABA juvenile justice policy is set forth in 20 volumes of IJA-Juvenile Justice Standards (“Standards”) developed by the Association in conjunction with the Institute of Judicial Administration. The Standards call for individualized treatment that is fair in purpose, scope and not arbitrary. These goals are set forth in the

Standard Relating to Disposition:
The purpose of the juvenile correctional system is to reduce juvenile crime by maintaining the integrity of the substantive law proscribing certain behavior and by developing individual responsibility for lawful behavior. This purpose should be pursued through means that are fair and just, that recognize the unique characteristics and needs of juveniles, and that give juveniles access to opportunities for personal and social growth.

The Standards set forth clear parameters for juvenile justice sanctions: the definition and application of sanctions should address public safety; give fair warning about prohibited conduct; and recognize “the unique physical, psychological, and social features of young persons.”1 The Standards, as well as accepted research in developmental science, recognize that juveniles are generally less culpable than adults, and that their patterns of offending are different from those of adults.2 Thus, ABA policy supports sanctions that vary in restrictiveness and intensity, and are developmentally appropriate and limited in duration.

Given the goals of the juvenile justice system and the transitory characteristics of juvenile offenders, ABA policy also limits the way juvenile records are compiled and disseminated. The Standards frown on “labeling” offenders, require very careful control of records, and prohibit making juvenile records public. In addition, “[a]ccess to and the use of juvenile records should be strictly controlled to limit the risk that disclosure will result in the misuse or misinterpretation of information, the unnecessary denial of opportunities and benefits to juveniles, or an interference with the purposes of official intervention.”3 This is so because most adolescent anti-social behavior is not predictive of future criminal activity.

Most importantly, ABA policy prohibits collateral consequences for delinquent behavior: “No collateral disabilities extending beyond the term of the disposition should be imposed by the court, by operation of law, or by any person or agency exercising authority over the juvenile.” 4 Lifetime registration violates this Standard and is detrimental to both rehabilitation and crime prevention.

The ABA opposed those provisions of the Adam Walsh Act that apply to juvenile offenders. A large percentage of “sex offenses” occur within families and do not rise to the level of sexual predation that is the target of the Act. The “Lifetime Registration” provisions of the Act are likely to have a chilling effect on the reporting of these crimes and will reduce admissions (guilty pleas) to the charges in the cases that do get reported. Concerns about the prospects of the retroactive application of the Walsh registration provisions already are having an adverse effect across the country with respect to admissions and delinquency adjudications in sex offense cases. As a consequence of its “Lifetime Registration” provisions, the ultimate impact of the Walsh Act here will be far more contested proceedings in these cases; far fewer delinquency adjudications; and far fewer juveniles getting the treatment they need. In addition, the fact-finding and guilty plea (admission of guilt) processes in most juvenile courts have fewer safeguards than in the adult system. Adjudications for sex offenses tend to lack the precision required by ABA policy (See Standards Relating to Adjudication). Furthermore, sex offending in adolescence has limited correlation to adult sex offending (the number of false positives close to 90 percent).5

Because the Adam Walsh Act is inconsistent with ABA juvenile justice policy and because we believe the statute is overbroad in this respect, we urge you to draft the regulations so as to not further broaden the reach of the act and to minimize the harm that will result from application of the statute. The clearest way to accomplish this is to reject retroactive application of the Act to those who were under 18 at the time of their offenses. To the extent possible, the regulations should also provide a reasonable method for low-risk offenders to petition to be removed from federal and state sex offender registries. Finally, the ABA also suggests that the Department of Justice urge Congress to reconsider whether the Act should apply to juvenile offenders.  Sincerely, Denise A. Cardman.”

The law defines and requires a three-tier classification system for sex offenders, on which other requirements are based. The tier levels are established as:

• Tier I are those other than a tier II or tier III.
• Tier II are those other than Tier I with an offense punishable by imprisonment for more than one year and comparable to or more severe than the following federal offenses involving a minor: sex trafficking; coercion and enticement; transportation with intent to engage in criminal sexual activity; abusive sexual contact. Also includes any offense involving use of a minor in a sexual performance, solicitation of a minor to practice prostitution, or production or distribution of child pornography.
• Tier III are sex offenses punishable by imprisonment for more than one year and comparable to or more severe than the following federal offenses: sexual abuse or aggravated sexual abuse; abusive sexual contact against a minor less than 13 years old; offense involving kidnapping of a minor (parent or guardian excepted); or any offense that occurs after one has been designated a tier II sex offender.

Regarding juveniles, the Adam Walsh Act defines a conviction for purposes of registration and classification to include juvenile adjudications if the juvenile offender is at least (1) 14 years of age at the time of the offense and (2) the offense adjudicated is comparable to or more severe than the federal offense aggravated sexual abuse.

The Adam Walsh Act sets requirements on duration of the registration requirement, according to the classification system. Tier 1 sex offenders are required to register for 15 years; tier II for 25 years and tier III offenders must register for life. Registration periods may be reduced, also according to the tier system, for completing certain programs or having a clean record for specified periods of time.

Six states have already jumped on the bandwagon including Delaware, Louisiana, Ohio, Mississippi, Nevada and Florida.

California can apply for an extension under the act if they fail to comply by next year’s deadline.