Joint Legislative Committee on Youthful Sex Offenders

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ARIZONA STATE LEGISLATURE

JOINT LEGISLATIVE COMMITTEE ON YOUTHFUL SEX OFFENDERS

Minutes of the Meeting

Tuesday, November 28, 2006

3:00 p.m., Senate Hearing Room 109

Members Present:

Senator Karen Johnson, CoChairman	Representative Rick Murphy, CoChairman
Senator Jorge Garcia	Representative Cheryl Chase
Senator Linda Gray	Barbara LaWall
Mark Faull	Melony Opheim
Jim Haas represented by Chris Phillis	Matthew Smith
Dana Paul Hlavac	Kathy Waters

Members Absent:

Representative Steve Gallardo

Jason Grygla

Barbara Hernandez

Staff:

Jennifer Eugster, Senate Analyst

Amber O’Dell, Senate Analyst

Chairman Johnson called the meeting to order at 3:13 p.m. and attendance was noted.

Senator Johnson announced that the meeting would start despite not having a quorum. She stated that some members have informed the Committee that they are running late, but would be in attendance. She announced that she would start with public testimony and do presentations as the individual speakers arrive.

Brent Gunnell distributed the following handouts: “Ethical Standards by Therapists” (Attachment A), “Justice Policy Institute” (Attachment B), and “Recommended Changes to Arizona’s Youthful Sex Offender Laws” (Attachment C). He explained that the statements he would make today are his own opinions based on his research regarding the system that works with youthful sex offenders. It is his understanding that the system for identifying, charging, incarcerating, terms of probation and treating youthful sex offenders, is demeaning and degrading to the individual and their families and contrary to common sense and true justice. The system is costly and may not have the intended results that the system is built for, which is the safety of the children. Mr. Gunnell said that he is not defending inappropriate sexual behavior at any age, but wants to put into perspective the results of the system now in place. He stated that prosecutors, in the assessment meetings, seem to be interested in the harshest punishment possible. He said he is aware of deviant sexual behavior in Arizona and he is not defending these people, but said that over 90% of all youthful inappropriate sexual behavior occurs within the home or with a close acquaintance. By and large these youthful offenders are not the dangerous predators making the headlines, which have driven much of the public’s concern about the safety of their children. He asked what do you do with young people accused of a sex crime when the law treats virtually every sex crime the same. Mr. Gunnell stated that in his opinion, laws passed by the Legislature years ago have resulted in an elaborate system. The system which is designed to find, charge, prosecute, and then provide as a result of most plea offers jail time, and/or terms of probation, includes intense probationary oversight, exhaustive therapeutic treatment with testing and retesting for virtually all sex offenders almost regardless of their crime. It is a system burdened with penalties so severe, so life changing that the significant lifetime consequences for the offenders and their families exceed justification. A few years ago the laws were changed for mandatory sentencing for sex offenders which increased the rate of plea deals, making the prosecutors the judge, jury and executioner. What constitutes a sex crime covers such a wide range of events.

In response to Mr. Faull’s question about statistics, Mr. Gunnell stated that he does not know the exact statistics on Arizona’s plea deals. He stated that he is conveying his opinions based on experience and numerous cases he has witnessed.

Mr. Faull stated that across the country, the plea bargaining rate for prosecution remains relatively constant across all systems and 95% plus cases in most jurisdictions in the country are plea bargained as a result of judicial efficiency and other relative factors.

Mr. Gunnell questioned the point of judicial efficiency.

Mr. Faull stated that there is no difference between the rate of plea bargaining where mandatory sentencing exists and where it doesn’t in terms of statistical significance.

Mr. Gunnell said that he does not have the statistics on that. He said that the system is burdened with penalties so severe, so life changing, with significant lifetime consequences for the offenders and their families that to him it exceeds justification. In looking at class 2 felonies, which many sex offenders are charged with, it could cover such things as kidnapping, sex trafficking, aggravated assault with a weapon, drive-by-shootings, and manslaughter. The law based on the charges and subsequent plea bargains requires mandatory levels of punishment for sex offenders. Some examples are incarceration, life time probation, lifetime registration, with the prospect of public notification, and at minimum, years of therapy. The problem is then a whole host of unintended consequences occur. For example the system has determined that every conceivable inappropriate sexual contact by juveniles which comes to the attention of the law is a depraved deviant act of an unrepentant, unremorseful child molester with many victims, who is a secretive, manipulative predator, who needs to recognize his crime, take responsibility, be punished by incarceration, probation and undergo intensive therapeutic treatment. These requirements create lifetime consequences affecting family relationships, living arrangements, education, jobs, marriage and raising families. This out weighs the theory that the punishment should fit the crime. Inadvertent or curious touching or consensual Romeo and Juliet events are given the same weight as violent and predatory sexual offenses committed by true deviant pedophiles. The current probationary system and the therapeutic practices would be better called incarceration without walls. As currently set up, at least in Maricopa County, the probation department has, in his opinion, broken ethical standards by the very nature of the contracts therapists are required to sign. They are obligated to provide the probation department with private patient/therapist information and all offenders are required to give up their right to privacy, allowing therapists to provide information to the probation department. Offenders are assured that the confidential information provided to the therapist will not be used against them, but it is often used to prolong the oversight by the probation department and the therapist. This arrangement where substantial sums of money are collected from probationers practically guarantees there is no end to treatment. In fact, even now in their own literature the probation department states strong reservations and uncertainty about the effectiveness of any treatment regiment. Many started facing the fact that it is not treatment that determines whether someone is going to relapse or not. It is the supervision they are getting and the degree to which they cooperate with the supervision. As treatment continues to exist hand in hand with supervision, we started learning that the most effective thing we can do for our client is help them deal with the appropriateness of their terms of probation as an alternative to long incarceration. This ends with extended treatment or additional jail time based on breaking rules of probation rather than re-offending sexually.

Mr. Gunnell stated that as one young man told him, he had heard things in his adult rapist group, he is not a rapist, that he would never have imagined about sex and having heard them, most of which are of a deviant sexual nature, he cannot get them out of his mind. The young man also stated his reaction to being around children, his reaction to entering a room where children are present is to get away or hide. This means if he is found by the probation department or a surveillance officer in the presence of a child without reporting it he could be put back in jail. Most juvenile sex offender treatment programs have not undergone enough study to show that they achieve a substantial reduction in recidivism. Nationally, youthful sex offenders’ rate of repeat sex offenses is well below the rate of every other criminal offense committed by juveniles. The rate of recidivism for offenders that do not get treatment is very close to the rate for those who do. Nationally, it is being recognized that placing youthful sex offenders on the National Registry is harmful and counterproductive. Even with the best tools available to the probation department and therapist, they cannot predict the outcome of any treatment program or the probability of any particular individual to re-offend. For the vast majority of those charged with sex crimes, the event did not occur at a school, a park, a playground, a library, a mall, a church or a bus stop; the places offenders are prevented from going. Mediation to transfer youthful sex offenders into programs other than the criminal system is ineffective, unavailable or underutilized.

Mr. Faull stated that Maricopa County has set up a diversionary program for nonviolent first offenders, where they get probation and go through juvenile court, and often do not see the County Attorney’s office, if it is a nonviolent first offense.

Mr. Gunnell stated that the system has been so reactive to the need to protect society from sex offenders that they have overreached to bring virtually every circumstance of an offense into the same broad brush of charges. There could be some modifications made to these areas saving the state millions of dollars in costs and relieving families and young people of wasted years of intervention.

Mr. Hlavac asked what if Mr. Gunnell’s recommendations were made with consideration to the Adam Walsh Act and what impact would they have.

Mr. Gunnell stated a harsher system could exist but it would have to be in accordance with the Adam Walsh Act.

Rhonda Lee distributed a presentation “Youthful Sex Offender Housing in Maricopa County” (Attachment D) and “Guidelines for completion of each IPS Level” (Attachment E). She explained that IPS is Intense Probation Services and discussed the different levels. Ms. Lee stated that the probation department is putting people of all ages and levels of offense treatment and housing together. She stated that offenders in IPS are not allowed to leave their housing. If they do not report back to housing in time, these children are left to sleep outside in a fenced area or on the street. The Windsor Hotel is another place the probation department warehouses many offenders. Ms. Lee showed pictures of the rundown, deplorable conditions of the laundry room, bathtub and shower at the Windsor Hotel where the children are forced to live. Ms. Lee showed pictures of the Alhambra Hotel in Mesa which has not been remodeled since 1951. She said that places such as these hotels serve a purpose for people that have nowhere to go, but not for children with options. Ms. Lee included that the fire Chief told her the buildings do not have to follow the new fire codes until they have been remodeled and the Alhambra Hotel had not been remodeled in over 50 years.

Ms. Lee stated that one youthful offender was required to move to the Alhambra Hotel by the probation department then was told he could have no contact with anyone. A couple other youths were ordered to stay at the Alhambra when they had family they could have stayed with. She stated that the circumstances these children are in are like prison, only the mandated facilities are deplorable. Ms. Lee said that of all the people she has spoken to none have any knowledge of a hearing at the age of 18 before they are thrown into the adult system. She asked how these kids can become responsible and productive members of our community.

Ms. Phillis asked the ages of the people Ms. Lee had been discussing.

Ms. Lee stated that they go to the shelters at the age of 18.

Ms. Phillis asked what age group these 18 year olds just leaving home for the first time are being grouped with.

Ms. Lee stated that they are put with all age groups and difficulty levels.

Mr. Faull stated that there are three ways to be transferred to the adult system. At 15 years old and older there are lists of crimes that are automatic transfers; the list was passed by the people in 1996. The second category is 14 years old and older, which for certain offenses, can be transferred at the discretion of the prosecutor. The third scenario, which is the only one requiring a transfer hearing, is only individuals under 14 years of age.

Ms. Lee stated that 14 and 15 year olds put into the adult system are viewed by the public as heinous, out of control people who are sexual predators, which is not necessarily the case. These kids are not given psychological treatment nor are their families and friends conferred with in order to understand their new atmosphere. Families and friends are often not allowed to provide the child with any support.

PRESENTATION BY THE MACARTHUR FOUNDATION: Differences Between Adolescents and Adults – What Matters for the Justice System?

Edward Maldy, Professor of Psychiatry, University of Pittsburgh, representing The MacArthur Foundation, distributed a copy of his power point presentation “MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice” (Attachment F) and “University of Pennsylvania Law School - Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note” (Attachment G). He explained that the MacArthur Foundation is a not for profit research organization whose purpose is to provide research and extensive information to facilitate better informed decisions. The goals of this network are to improve decision-making and practices in the courts and corrections departments and to provide information for policy debates and public discussion. Three issues of concentration are competence, culpability and amenability. The first, competence; what age are individuals likely to have the capacity to be adjudicated in a court context. The second question is culpability, is there any part of being an adolescent that has something to do with their blameworthiness. Is there something distinctive during adolescence that changes their thinking? The third one is amenability or at what age are juveniles capable of changing, does the juvenile understand the proceedings. In addition is the juvenile able to assist council? The study looked at 1034 people ranging from 11 years old to 24 years old and was balanced across ethnic lines. Four instruments were used to test their understanding of the activities in a court of law.

Mr. Faull asked, in the research, which questions are the right ones?

In response to Mr. Faull’s question, Mr. Maldy stated that there is not a right or wrong answer. By looking at trends, it becomes evident how the majority of a certain age group will respond a certain way. As far as a cut off place or a certain level of acceptability, that is for the legislature to decide.

Mr. Maldy stated that culpability is mainly concerning maturity and the decision making process. The study then sought to find at what age individuals demonstrate adult levels of maturity. He said that research shows continued development well into the mid-20s in brain regions that govern thinking ahead, impulse control, and risk-taking. This research helps explain why adolescents tend to be more short-sighted, more impulsive, and more willing to engage in risky behavior. He said that adolescents may not have all the neural “hardware” in place for adult behavior. This “hardware” is especially important in non-routine situations when judgment calls need to be made and emotional influences are high. Implications of this are that findings provide a strong case for mitigation. Two basic approaches that have their pros and cons are individualized assessment and categorical, age-based rules. Individual assessment is that there is something related to conduct and can be assessed in each case. This is used for mentally disordered individuals. The problem with this is there are not many scientific tools to make reliable assessments of maturity and trying to do so carries substantial risks in practice. The other option is categorical line-drawing, which says that these do follow an age gradient. Customary policy is to use age-based lines to approximate required level of maturity for different tasks. The drawback is that the age-based lines are inherently over-inclusive and under-inclusive due to individual differences and situational differences in blameworthiness for any given act. The best approach from this discussion is age-based mitigation. This approach is for a group in the middle, for which adolescence is potentially a possible mitigating factor. The idea of individualized assessment for a group of people who have a consolation of factors beyond just age that might make it appropriate to consider their lack of judgment a factor in their offense.

In response to Mr. Faull’s question, Mr. Maldy stated that he is promoting an idea that a competency determination or a competency examination could potentially be done for issues not restricted to mental disorder but could be asked for upon determination that a adolescent falls, between the ages of 14 and 16, and appears to offer signs of bad judgment and immaturity along with other factors. He noted that he is not promoting a categorical distinction of competence or incompetence based on adolescence.

Mr. Maldy remarked that the last study deals with serious offenders and understanding why a large proportion of serious offenders actually do better in early adulthood in the transition from adolescence to adulthood. The idea is to provide a richer picture of the desistance process, or stopping a lot of the behaviors. The intent is to understand risk assessment and target intervention regarding sanctions for kids who are already in the system at that point. He explained that the study was taken at two sites Philadelphia and Phoenix. The study included 1,355 felony offending adolescents; age 14 - 18 years old, predominately male. The adolescents were interviewed at the time of adjudication, every six months for three years and annually thereafter. He noted that collateral information in the form of interviews and official records were compiled on these cases. These cases are with kids who have usually had two prior court appearances and approximately half appeared for a felony against a person (aggravated assault or armed robbery). It was an ethnically diverse population, primarily African American and Hispanic.

Mr. Maldy remarked that, seen over time, several distinct groups of adolescents offending, dropped. A small group of 8-9% had high and continual offending reports, a larger group reported declining offending incidents and the largest group reports low levels of offending, but still spends about 30% of the follow-up treatment in institutional care. Over the three year follow-up period, system involvement and work history do not differ for these groups, but the level of substance use and stability of daily routine do differ.

Mr. Maldy commented that the sex offender is a special type of offender. He acknowledged that he was not an expert on treating sex offenders. He noted that there is a special type of adult offender that everyone is concerned about and that model has been used to the adolescent offender to see if it fits. In most of the studies that have been done, there are three different types of sex offenders, the status offenders, sex with younger people in a romantic relationship, first offenders, and repeat offenders. Repeat offenders are in a small group of sex offenders, in most samples, 4-8%.

Mr. Maldy stated that the general conclusions in adolescent offending; there is less specialization in regards to offense. He noted that youth act on a variety of things and it is rare for them to focus on one. Most adolescents do desist over time however current prediction technology is weak. He claimed a risk management approach seems logical.

In response to Mr. Hlavac, Mr. Maldy replied that hormonal influences were not a category used in any specific study relating to adolescents’ poor decision making. He remarked that adolescents frame differently than adults in terms of the meaning, implications and long-term consequences of their behaviors. This research simply shows that at a certain point, they can have a factual or cognitive understanding, but their appreciation for what that means, their building projections for the future, are not there and are still developing.

Mr. Faull stated sexual behavior that is non-deviant or what is referred to as the Romeo and Juliet situation versus deviant sexual behavior is a focus for the Committee. Mr. Faull asked when deviancy becomes a power act as opposed to a hormonal driven normal act. Mr. Maldy stated that for some adolescents it is early on and is a mix of sexual gratification and power, which is an extremely dangerous situation. When adult offenders are systematically exposed to more deviant forms of sexual activity and evaluated, their arousal levels are much higher and more consistent than is ever found with adolescents.

In response to Mr. Faull, Mr. Malady remarked that prior sexual history of a juvenile sex offender should be relevant in assessment and response. He stated that age is not a particularly good indicator, whereas prior behavior is a much better tool to be used.

In response to Senator Johnson, Mr. Malady stated that the saying that the ”law is a blunt instrument” comes to mind when any legislation is written because not all behaviors apply. At some point there needs to be an allowance for individualized assessment in the system instead of a fixed punishment.

In response to Ms. Waters, Mr. Malady remarked that research does not show the difference between amoral behavior and unlawful acts in adolescents.

PRESENTATION BY CHILDREN’S ACTION ALLIANCE: SAFEGUARDING THE COMMUNITY AND YOUTH – LEGISLATIVE OPTIONS

Beth Rosenberg, Director of Child Welfare and Juvenile Justice, Children’s Action Alliance, distributed a copy of her power point presentation “Safeguarding the Community and Youth – Legislative Options” (Attachment H) and “Prosecuting Juveniles in the Adult Criminal Justice System” (Attachment I).

She explained that the Alliance is a non-profit, non-partisan organization dedicated to promoting the well-being of all of Arizona’s children and their families through research, policy development, media campaigns and advocacy.

Ms. Rosenberg stated that in 1979, the Arizona Supreme Court decision limited juvenile justice system jurisdiction of youth to age 18. She noted that prior to the ballot initiative that passed in 1996, there was only one pathway to the adult criminal court through judicial waiver, which was a court hearing. Transfers were common for older youths, providing little time for rehabilitation.

In 1996, Proposition 102 mandated youth age 15 and older be prosecuted in adult criminal court for violent offenses (defined by statute) or chronic felony offenders (defined by statute). In 1997, the Legislature passed Senate Bill 1446 which defined “other violent offenses” and “chronic felony offenses” and gave prosecutors discretion to direct file in adult court without a hearing for youth ages 14 or greater for a broader range of crimes.

Now there are three pathways to the adult court for youths. The first is exclusion from the juvenile court by crimes listed in the Constitution, such as statutory crimes the Legislature has created. The second is prosecutorial discretion that allows county attorneys to determine without a hearing whether a case should be filed in criminal or juvenile court. The third is by judicial hearing where the judge decides, based on information presented at a court hearting.

The judicial waiver for juveniles is based on a variety of things; the county attorney must make a request for a county hearing, the judge orders a psychological evaluation and considers factors listed in ARS 8-327, the probation officer conducts a full background investigation, and then there is a transfer hearing where the judge reviews all these reports, any additional testimony and makes a public safety determination.

In the prosecutorial discretion, the prosecutor’s decision is based on limited information. The decision to try a youth in adult court is made behind closed doors, without a court hearing and without sufficient information on the youth’s background, social development or mental health.

Ms. Rosenberg stated that the adult criminal system is not prepared for youth and recidivism is worse for youth remanded to adult court. The Alliance makes the following recommendations:

· Reverse remand from the adult criminal court to the juvenile court

· Amend the 1997 legislation ARS § 13-501.B and require judicial waiver to adult court for the following:

§ All sexual offenses except forcible sexual assault

§ Youth younger than 15

§ Non-violent offenses

· Increase treatment funds in both juvenile and adult systems

· Provide treatment in juvenile justice system until age 21

· Allow criminal court judges to impose a sanction on either the juvenile or the adult system

· Tailor laws related to sex offender community notification, residency restrictions and life-time probation so they work for youth to succeed.

Ebony Richards, representing herself, testified that her fiancé is currently incarcerated for sexual conduct with a minor. She described the circumstances leading up to his incarceration and remarked that the system does not work correctly.

Mr. Kepler, representing himself, testified on his family’s experience with their son being convicted as a sexual offender. He remarked that in addition to the turmoil his family went through he was sued for $3.5 million, which he lost. He opined that the system is corrupt and broken.

Senator Johnson remarked that the next meeting would be held Wednesday, December 6, 2006.

Senator Johnson expressed her appreciation for the family members coming forward to provide testimony for the Committee.

Senator Gray stated that she would like to hear from probation officers the reasons why a person is not allowed to go back to their home. Senator Johnson asked staff to make arrangements for this to be done at the next meeting.

Mr. Smith requested police reports on testimony given at the time of the investigation in order to better assess the stories that are being told.

Representative Chase wanted to stress the importance, urgency and the real need of the rural areas of the State.

There being no further business, the meeting was adjourned at 6:04 p.m.

Respectfully submitted,

Shelley Ponce

Committee Secretary

(Tapes and attachments on file in the Secretary of the Senate’s Office/Resource Center, Room 115.)

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Joint Legislative Committee

On Youthful Sex Offenders

November 28, 2006

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