ARIZONA STATE LEGISLATURE
Forty-eighth Legislature – First Regular Session
JOINT LEGISLATIVE COMMITTEE ON YOUTHFUL SEX OFFENDERS
Minutes of Meeting
Cochair Karen Johnson called the meeting to order at 9:13 a.m. and attendance was noted by the secretary.
Members Present
Senator Karen Johnson, Cochair Jason Grygla
Representative Rick Murphy, Cochair Chris Phillis (for Jim Haas)
Senator Jorge Garcia Dana Paul Hlavac
Senator Linda Gray (teleconferencing) Peter Hochuli (for Barbara LaWall) Representative Rich Crandall Matthew Smith (teleconferencing)
Barbara Marshall (for Mark Faull) Kathy Waters
Members Absent
Representative Steve Gallardo
Barbara Hernandez
Melony Opheim
Speakers Present
Christina Estes-Werther, Senate Judiciary Analyst
Barbara Broderick, Probation Department
Jerry Landau, Director of Government Affairs, Arizona Supreme Court
Patty Morris, Supervisor, Sex Offender Compliance Unit, Department of Public Safety (DPS)
Mary Marshall, Public Information Officer, Arizona Criminal Justice Commission (ACJC)
Ebony Richards, representing self
Debra Bennett, representing self
OPENING REMARKS:
Cochair Johnson welcomed everyone to this final Committee meeting and asked Members to introduce themselves. It was noted that Senator Linda Gray and Matthew Smith were present telephonically. She advised that this Committee, by statute, is constituted to conclude at the end of September. The purpose of this final meeting is to review what had been accomplished during the past year, to look toward the future to see if other issues need to be addressed, and to try to determine whether this discussion should be continued in another forum.
PRESENTATION AND DISCUSSION OF YOUTHFUL SEX OFFENDERS COMMITTEE RECOMMENDATIONS AND LEGISLATIVE SESSION RESULTS:
Christina Estes-Werther, Senate Judiciary Analyst, explained the packet that was distributed: a copy of the agenda (Attachment 1), a legislative follow-up (Attachment 2), the Adam Walsh Act (Attachment 3) and proposed guidelines for the Sex Offender Registration and Notification Act (SORNA) (Attachment 4). Also included is a copy of Senate Bill 1628, youthful sex offenders; treatment, which enacted some of the recommendations of the Committee (Attachment 5). Additionally, the packet contains a questionnaire for Members to submit their thoughts and suggestions relating to the Committee (Attachment 6).
Ms. Estes-Werther reviewed the Committee’s recommendations and legislation that was introduced during this past legislative session (Attachment 2).
Mr. Hlavac questioned the extent that the residents’ restrictions on sex offenders specifically impact juveniles versus adults. Ms. Estes-Werther answered that Senate Bill 1555 excludes minors but does not exclude sex offenders. If an offense was committed by a minor, the restrictions would not apply; however, they would apply once the minor becomes an adult.
ANNUAL PROBATION REVIEW:
Barbara Broderick, Probation Department, reviewed the provisions of Senate Bill 1628 that impact probation. These provisions relate to the annual review hearing and also ensure that any youthful sex offender treatment provisions be age-appropriate and maturity-appropriate. The Department has attempted to put every adolescent sex offender into appropriate treatment. A committee was set up in Superior Court to discuss the annual review process. Those sentenced after September 19 will be given all their rights and information about an annual review process. Currently, there are 78 individuals who committed their crimes under the age of 18 but have not yet reached the age of 22, and they will be informed that they are entitled to have an annual review. A progress report will be prepared by the Probation Officer after the hearing and the Court will make a determination whether to set an actual hearing.
Ms. Broderick discussed the reverse transfer issue. She advised that a Rule of Court is out for public comment.
Cochair Johnson complimented the Probation Department for the improvements made in the relationship between Probation Officers and youthful sex offenders. Ms. Broderick noted that the Department has improved its dialog and has a more open ability to deal with some of the difficulties that have arisen.
In response to Representative Crandall’s query concerning obtaining a copy of the reverse transfer process that is out for public comment, Ms. Broderick referred him to the Arizona Supreme Court’s website.
Mr. Hlavac questioned whether the Department will be recommending that the cases be terminated for any of the 78 individuals who committed their crimes under the age of 18. Ms. Broderick said each individual case will be dealt with differently.
Ms. Phillis asked how the pre-hearing will work. Ms. Broderick answered that a pre-hearing will be set in which the parties will receive copies of the recommendation.
Jerry Landau, Director of Government Affairs, Arizona Supreme Court, advised that he will provide copies of the reverse transfer process. He explained there are different processes when a petition for a request for transfer is filed. The Court adopted the Rules on an emergency basis and will meet in December to finalize the Rules. The Rules cover both the transfer-back proceeding as well as the annual review.
PRESENTATION AND DISCUSSION OF THE ADAM WALSH ACT:
Christina Estes-Werther, Senate Judiciary Analyst, gave a brief overview of the Adam Walsh Act that was passed on the federal level (Attachment 3). The Act was enacted on July 27, 2006. Title 1 of the Act is the Sex Offender Registration and Notification Act (SORNA). The goal of SORNA is a comprehensive national system of registration and notification programs. Deadline for substantial implementation is July 27, 2009. Jurisdictions that fail to substantially implement SORNA by the deadline are subject to a mandatory 10 percent reduction in funding. She pointed out that a Fact Sheet of the proposed guidelines from the Department of Justice website is included (Attachment 4). SORNA has established the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) to administer the SORNA standards for sex offender registration and notification, and to provide assistance to states, local governments, tribal governments and other public and private entities.
Cochair Johnson commented that the Adam Walsh Act appears to be something that will be extremely costly to the State.
Patty Morris, Supervisor, Sex Offender Compliance Unit, Department of Public Safety (DPS), made herself available to answer questions.
Representative Crandall asked the impact of the Adam Walsh Act on Arizona. Ms. Morris stated that Arizona currently has laws in place that regulate sex offender registration and community notification. Arizona has stricter laws in place that what is required in the Adam Walsh Act. The State has lifetime registration and maintains contact with offenders by verifying their address annually.
Mr. Crandall queried the percentage of offenders who are no longer at the same address or are not located after one year. Ms. Morris advised that Arizona has one of the lowest absconder rates in the nation at 4.78 percent of the State’s 14,332 offenders. Arizona’s offenders are classified by levels which are based upon risk. In Adam Walsh, crimes are based solely on the offense and are classified by tiers. She opined that with the Adam Walsh Act, Arizona would lose track of the less serious offenders and those may have risk. If Arizona adopts the Adam Walsh Act, she feels that the risk assessment should be maintained even though it is not required in the Act.
In response to questions, Ms. Morris related that a 10 percent reduction in funding for not complying with the Adam Walsh Act would translate to an annual loss of funding of $1 million.
Cochair Johnson queried the cost to Arizona to implement the Act. Ms. Morris advised that the cost has not yet been established; however, she believes it would be quite costly and would be considerably more than $1 million.
Cochair Johnson asked whether Arizona can opt out of the Adam Walsh Act. Ms. Morris replied in the affirmative; however, she believes it would be good to opt in at least partially. She also feels it would be good to implement the Act gradually and she reminded Members that the deadline is 2009 for Arizona to be compliant. She advised that she will have information by the end of the year on how compliant Arizona is.
Cochair Johnson expressed concern that the Committee’s work this past year might be in conflict with the Adam Walsh Act and might negate what the Committee has done. She observed that it might be wise for the Legislature to become involved with the Adam Walsh Act to determine how it will affect the State and to determine if Arizona wants to be a part of it.
Ms. Phillis noted that the Act is retroactive and would apply to juveniles who have already completed all their treatment. If Arizona adopts the Act, those juveniles will get notice that they are now required to register for 25 years, and she said that will affect their ability to live in different locations. In addition, their pictures would be on the website for anyone to see.
Cochair Johnson queried whether Adam Walsh would allow a sex offender who has not re-offended after 10 or 15 years to be taken off this lifetime probation offender list. Ms. Morris answered there is a good conduct release provision. If the person has not re-offended for a certain number of years, there is the possibility of getting a hearing and having their registration lifted. Cochair Johnson asked whether that option is available in Arizona. Ms. Morris replied in the negative. She said that option might be available to a juvenile but not to an adult.
Representative Crandall asked how much safer the children of Arizona would be if Adam Walsh was enacted as opposed to if the Act was not enacted in Arizona. Ms. Morris opined that there are certain things that Adam Walsh brings that would be good for the State. She said she feels that incorporating the Adam Walsh Act would make it safer here in Arizona while maintaining some of Arizona’s laws already in place.
Mr. Grygla questioned the percentage of the Adam Walsh Act that would have to be implemented for Arizona to be substantially in compliance. Ms. Morris said she believes 25 percent because of the laws Arizona already has. Mr. Grygla asked whether the State would be in full compliance if it adopts 25 percent of the Act or whether it would be in substantial compliance of the complete Act. Ms. Morris said she believes the State would be in complete compliance and would be eligible to receive funding; however, she will be more informed in December when the SMART office completes its study. She said she will report back to the Committee when she gets that information.
Cochair Johnson said she hopes this Committee will continue to meet to review this issue. She commented that one of her major concerns of the Act is the part relating to youth. Many of the cases heard in Committee, although grievous, involved youth who did not commit violent offenses. She thinks that if they do not re-offend, they should be allowed to be rehabilitated and to put their lives back together again.
Ms. Marshall stated her understanding that the Adam Walsh Act was implemented because of registered sex offenders moving to another state and committing new offenses. If Arizona does not implement the Act, she wondered what mechanism is in place to track these sex offenders who move here from other jurisdictions. Ms. Morris stated that Arizona currently has good communication with other states.
Ms. Waters queried whether Arizona would have access to the national database if it does not implement the Act. Ms. Morris replied in the affirmative.
Ms. Phillis asked how the $1 million is spent.
Mary Marshall, Public Information Office, Arizona Criminal Justice Commission (ACJC), explained that ACJC administers these federal funds which have primarily been authorized for narcotics interdiction in Arizona. Ms. Phillis asked whether any of the money has anything to do with sex offenders. Ms. Marshall replied in the negative.
Cochair Johnson asked whether the State would be losing more money if it decides not to implement the Adam Walsh Act than what the State would have to spend to implement the Act. Ms. Marshall said the fiscal impact of this legislation is not known at this time. She said it is dependent on whether the Department of Justice will fund a software program to put into operation the registration program that every state will use as well as the cost of implementing the Act.
Cochair Murphy asked whether the SMART Office will use a comprehensive matrix to determine whether states are in compliance. Ms. Morris advised that the SMART Office is staffed by a U.S. Attorney and a Presidential appointee. She said her office has compared Adam Walsh with Arizona’s laws and submitted the comparison to the SMART Office in June. Because of the SMART Office’s short staff, Arizona has not heard back.
Cochair Johnson believes it is incumbent as a Committee to take an in-depth look at this issue.
Ms. Estes-Werther advised Members that she has received the Arizona Supreme Court’s Petition to adopt the Rule on the reverse transfer process from Mr. Landau (Attachment 7). Copies were distributed to Members.
CALL TO PUBLIC:
Ebony Richards, representing self, testified on behalf of her fiancé, Keimond Brown. She advised that Keimond had consensual sex when he was 15 years old with a 13-year old girl. The girl reported that he raped her. He was questioned by the police, held overnight but released the next day. When he was 17 years old, the State picked up the case and charged him with the crime of Attempted Sexual Conduct with a Minor, a Class 3 felony. Although the 13-year old girl eventually said that the sex was consensual, he served time in jail and received intensive probation. She believes that if he was a predator, he should have been charged right away instead of being charged two years later. She claimed that the gap in arrest is not a rarity. She said it happens all the time.
Ms. Richards showed a video of Keimond being questioned by law enforcement. She also has a tape in which the girl admitted that the sex was consensual. She distributed copies of his court case (Attachment 8) as well as his psychophysiological evaluation and treatment plan (Attachment 9). As a result of the evaluation, the Probation Department has given him permission to be around children. She said that if the Adam Walsh Act is implemented by the State of Arizona, Keimond’s information will be put on the internet as having committed a dangerous crime against children. She feels this will destroy him and their family again.
Debra Bennett, representing self, testified that her nephew inappropriately touched his little sister when he was 13 or 14 years old. When he was 17 years old, he was arrested and spent eight months in jail. She praised the Probation officers who were involved in her nephew’s case.
REVIEW OF THE COMMITTEE:
Questionnaire:
Cochair Johnson called attention to the questionnaire in the packet. She asked Committee members to comment and return the questionnaire. She would like to raise the possibility of continuing to meet; however, it would not be under statute because the Committee’s work is over at the end of September. She said that the Committee might continue as an ad hoc committee or as a working group to discuss any issues that are raised. She said she would like to have comments on whether members would like to continue or not, as well as any other issues that should be addressed.
Discussion;
Ms. Phyllis noted that one of the issues not addressed in the legislation when reverse transfer was enacted last year was if the major crime is a sexual offense and there is another “501” charge. She wondered whether the juvenile can be entitled to request a reverse transfer hearing because of the other “501” charge. She thinks this is an issue to be looked at.
Mr. Hlavac applauded Ms. Broderick for the changes the Probation Department implemented as a result of the work of this Committee.
Mr. Grygla commented that the private treatment providers have all expressed concern about law enforcement not charging the offender right away when the offender is a juvenile. He stated that law enforcement has the responsibility to charge in a timely manner. He opined that the ability to manipulate when juveniles are charged should be removed from law enforcement agencies.
Ms. Marshall said that Mr. Grygla’s comments refer to the situation where law enforcement intentionally does not submit a case, waiting for a juvenile to get older. She pointed out that case law says it is vindictive prosecution to intentionally sit on a juvenile offense, waiting for a juvenile to get older. If there is vindictive prosecution, the case needs to be dismissed. She submitted that when there is a time gap, it is because of an on-going investigation.
Cochair Johnson said that it might be a good idea to hear from someone in law enforcement if discussions are going to continue.
Ms. Waters noted that testimony before this Committee revealed that there were huge gaps in age of offense to when the case was adjudicated or prosecuted. She pointed out these incidents were not isolated cases but were the norm.
Cochair Murphy said another issue to look at is the “Romeo and Juliet” situations where the sex is consensual. He expressed concern about the gap between the stated practice and the reality of what is happening.
Without objection, the meeting adjourned at 11:06 a.m.
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Joanne Bell, Committee Secretary
July 6, 2016
(Original minutes, attachments and audio on file in the Chief Clerk’s Office)
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Joint Legislative Committee on Youthful Sex Offenders
September 12, 2007
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