ARIZONA STATE LEGISLATURE
JOINT LEGISLATIVE COMMITTEE ON YOUTHFUL SEX OFFENDERS
Minutes of the Meeting
Thursday, November 2, 2006
4:00 p.m., Senate Hearing Room 109
Senator Karen Johnson, CoChair
Representative Rick Murphy, CoChair
Senator Linda Gray
Dana Paul Hlavac
Jim Haas (Chris Phillis)
Kathy Waters (Jeannie Lynch)
Senator Jorge Garcia
Representative Cheryl Chase
Representative Steve Gallardo
Jennifer Eugster, Senate Judiciary Committee Analyst
Amber O’Dell, Senate Judiciary Committee Assistant Analyst
Katy Proctor, House Judiciary Committee Analyst
CoChair Johnson called the meeting to order at 4:08 p.m. and attendance was noted.
Senator Johnson told the Committee that she had to leave at 6:00 p.m. to attend a prior engagement at which time, Representative Rick Murphy would Chair the remainder of the meeting.
Presentation on Sex Offender Laws
Rachel Mitchell, Sex Crimes Bureau Chief, Maricopa County Attorney’s Office, submitted a handout (Attachment A) to the Committee per request from committee member Mark Faull containing information on specific juvenile sex crime cases and how those were handled by the Maricopa County Attorney’s Office. She remarked that she had been prosecuting sex crimes for close to eleven years and has held the title of Bureau Chief for almost six years. In response to testimony she observed during the last meeting, Ms. Mitchell opined that it was very important to point out that this Committee is dealing with a specific group of individuals and it is important to identify who those individuals are. She referenced a 2005 case that occurred in Idaho in which a family of three was found murdered along with 1 boy and 1 girl that were found to be kidnapped. The boy was discovered later to be dead and the girl alive, yet molested by an adult male whose sex offending behavior had begun well before he turned 18 years of age. Ms. Mitchell explained that these are the type of individuals that those charged with protecting society must consider everyday. She stated that when considering sentencing for sex offenders, her office uses a number of determining factors to reach a conclusion. Some of these factors included:
Ms. Mitchell explained that lifetime probation is requested of most sex offenders, the reason for that is because a short probationary period can not be lengthened in a case where it is later discovered that the sexual offender has more offenses while a lifetime probationary period can always be shortened.
Senator Johnson remarked that if a sex offender wanted their probation to be shortened, that individual would have to do so by going back to court.
Ms. Mitchell agreed and added that this was sometimes done by the offender without an attorney.
In response to Senator Johnson, Ms. Mitchell stated that she did not have statistics regarding the percentage of cases in which probation was shortened when the sex offender represented themselves in court. She remarked that whether or not the individual was represented by an attorney, these factors were always considered in a request for shortened probation:
Ms. Mitchell explained that Maricopa County has a designated judge assigned to hear all cases regarding shortened probation for sex offenders.
Mark Faull asked Ms. Mitchell to explain to the Committee what a Maintenance Caseload is.
Ms. Mitchell stated that there were steps of probation in which the beginning steps were more restrictive regarding terms and conditions and once the initial steps had been completed, the individual is put on a “Maintenance Caseload” where there is less supervision, less restricted activity and less frequent testing. She told the Committee that early termination of probation does occur within the judicial system via the discretion of the Judge. She said that if an individual is prosecuted as an adult and their probation is terminated, that individual’s duty to register as a sex offender is terminated, which can be found in the statute A.R.S. 13-3821. She added that if the adjudicated individual in this instance were prosecuted as a juvenile, their duty to register as a sex offender terminates when he or she turns 25 years of age.
Senator Johnson stated that if she were a judge, she would be hesitant to release sex offenders from their convictions or expunge that individual from probation. She asked Ms. Mitchell if there were any statistics concerning how often sex offenders got released from probation.
Ms. Mitchell remarked that although she did not have specific statistics, she is part of the bureau that oversees these requests and said it does happen.
Mark Faull told the Committee that if the ability was taken away from the judge to make individual assessments and decisions on whether to remove probation for sex offenders then the legislature would be put in a position to make a blanket decision for an entire class of people without the individualized information necessary to make such a decision.
Senator Johnson remarked that she was in no way suggesting that those tools be taken away.
Ms. Mitchell added that judges make these decisions on a daily basis and are very competent to do so.
Senator Johnson added that this Committee should also look at these issues on a case by case basis.
Jason Grygla stated that the juvenile probation department has more contact with youthful sex offenders than the courts do. He remarked that most of the time, the judge will make a decision based on the probation officer’s recommendation which can be largely subjective.
Jeanie Lynch, substituting for committee member Kathy Waters, asked Ms. Mitchell if the Offender Screening Tool (OST), used to measure risk factors in an adult sex offender case, was used for the juvenile offenders as well.
Ms. Mitchell said that no one particular tool was used for juveniles.
Mr. Faull stated that in a prior meeting, there was a discussion about the lack of specified tools for the juvenile cases in comparison to the OST.
In response to Dana Hlavac’s question regarding the percentage of requests for early termination of probation that were granted, Ms. Mitchell stated that although she did not know specific percentages, her department looked at each request regardless of who filed it.
Mr. Hlavac asked Ms. Mitchell if the courts ever overturned a recommendation from her office to oppose request for early termination of probation.
Ms. Mitchell remarked that although she did not have that information with her, she could not recall a situation where that has occurred. She noted if someone were sentenced under the current law, the court possesses the discretion to determine whether the sentence is disproportionate, given the conduct. Ms. Mitchell explained that this was known as judicial proportionality review. She explained that the statute A.R.S. 13-1407 has a defense built in that states when teenagers are between the ages of 14 and 18 inclusive and they engage in consensual sexual conduct, it is not a crime if they are within two years of age and can not be prosecuted. She said that the Maricopa County Attorney’s Office exceeds that by not prosecuting other cases of consensual conduct of teenagers where there is more than two years of age between them. She reminded the Committee that these cases were not dealing with voyeurism, indecent exposure and or kissing, but instead they are dealing with child molesters and rapists, offenders that were engaging in deviant sexual behavior. She defined “deviant” as sexual behavior that was not the product of an inexperienced teenager, yet the product of someone who is sexually predatory and uses manipulation or even force or threat to typically prey on younger victims. Ms. Mitchell acknowledged discussion about treating non-forced cases differently than forced cases and reminded the Committee that the vast majority of child molesters, whether 15 years of age or 50, do not use force or threat, they use manipulation and or predatory behavior.
Senator Johnson asked Ms. Mitchell if youthful sex offenders who used manipulation and predatory behavior were beyond treatment and full recovery.
Ms. Mitchell remarked that there was no blanket answer for this question therefore having that child go through the process presented to this Committee was actually the best answer because it allowed them to see what they were dealing with in each individual case.
Senator Johnson asked Ms. Mitchell how she viewed instituting more personalized sentencing for youthful sex offenders as opposed to mandatory sentencing.
Ms. Mitchell remarked that there needs to be discretion with the prosecution, which has been the societal trend both nationally and here in Arizona.
Upon request of Mr. Faull, Ms. Mitchell told the Committee that research shows about half of the sex offenders who participate in sexually offensive acts will do so before the age of 18.
Representative Murphy explained that one might ask what percentage of adult sex offenders were committing sex crimes in their teens and likewise, what percentage of teens who commit sex crimes continue to do so when they are adults. He asked Ms. Mitchell if there was any known data on the percentage of teens that have committed sex crimes and continue to do so in their adult years.
Ms. Mitchell stated that when determining the risk factor for a sex offender to re-offend, one of the major risk factors looked at is the age of onset. She explained that Karl Hanson, a highly regarded Canadian statistician in the field of sex offender research, did a meta-analysis where he looked at 61 studies of sex offenders in which he determined that the early age of onset was a major determining factor in regards of risk to re-offend.
Upon request of Representative Murphy, Ms. Mitchell said she would be happy to provide information on the Karl Hanson meta-analysis.
Senator Johnson remarked that information she had received indicated that the recidivism rate of youthful sex offenders was three percent.
Ms. Mitchell replied that this information was from The Department of Justice’s 1994 study and that the average sex offender in that study received an eight year sentence with the average time served being five years. She explained that this would indicate these subjects were not the most severe of sex offenders. Also, with the time served being five years, the follow up period would be three years indicating that they were on parole the majority of those three years which puts restrictions on their behavior. Ms. Mitchell pointed out that 28 percent of the individuals in the study were already in the system on a second sex crime violation. She said that this study was not a good indication that youthful sex offenders do not re-offend very often.
Mr. Faull remarked that the 1994 study has great limitations because it did not track the subjects for more than three years. In regards to Representative Murphy’s question regarding unreported cases of youthful sex offenses and how those factored in, Mr. Faull said the challenge for prosecutors was to determine what society will do when these acts are discovered and what the appropriate response should be. He explained that society does not have the option of not responding and that it was very important to have the tools in place to allow a response or public prosecution.
Melony Opheim stated that she worked with juvenile sex offenders and a vast majority of those never recidivated in a sexual way. She asked if there was a specific date that youthful sex offenders could petition to be taken off probation or if certain kids were encouraged to do so or if they were sufficiently notified that this can be done.
Ms. Mitchell remarked that due to the uniqueness of every case, there is not a specified date when youthful sex offenders can or should make a request for early probation termination. She said that encouragement to do so would be a task more suited for a probation officer or defense council.
Chris Phillis asked Ms. Mitchell if she would oppose an automatic due process hearing for youthful sex offenders at ages 18 and 25 to determine whether or not their probation can be terminated and have their name removed from the sex offender registration list.
Ms. Mitchell remarked that categorizing and restricting can hurt both the offender and jeopardize the community. She asked the Committee what would become of an offender who was ready for early termination before the age restrictions. She opined that it is better to have them looking forward to goals they must complete rather than a date that they can apply for probation termination.
Presentation on Community Notification and its Effects on Youthful Sex Offenders
Ken Bond told the Committee that he was a longtime resident of the State of Arizona, and that he was in attendance to speak on a subject that he made his life’s work for 35 years in the insurance industry. He gave a PowerPoint presentation entitled Sex Offender Registration and Notification Requirements for Youths Transferred to the Adult Criminal Justice System (Attachment B), and discussed:
He stated that clinical evaluations were wrong two out of three times, prompting the use of Actuarial instruments for objectivity. He also states that actuarial assessment instruments will probably be wrong three out of four times. He told the Committee that at present, there are individuals in various jurisdictions throughout Arizona, all using subjective judgment while following policies, practices and procedures that allow individual subjective interpretation. He said in addition, their decisions are based on actuarial instruments that are capable of doing the job which is fatal to the task at hand. Mr. Bond recommended that Arizona’s actuarial assessment instruments and processes should be reviewed by professional mathematicians, statisticians and actuaries to determine validity and reliability. He stated that Arizona should establish a sex offender Registration Review Process which allows one to appeal Registration Level assigned and request discontinuation of registration upon achieving key benchmarks. Mr. Bond remarked that Arizona’s Youthful Sex Offenders should be exempted from Community Notification, except in cases of violence or severe risk to the community.
Mr. Faull asked Mr. Bond if he submitted information contained in his presentation to the Community Notification Guidelines Committee.
Mr. Bond responded that in fact he did in the form of a 35 page paper in which the Committee followed by canceling all future meetings.
Ms. Opheim explained that as a probation officer, assessments were not a sole determining factor when deciding on a sex offender’s risk factor to re-offend. She asked Mr. Bond what he would recommend for assessing individuals of sex offenses.
Mr. Bond replied by saying that the current model used in Arizona was derived from the Minnesota Sex Offender Screening Tool – Revised (MnSOST-R), which is described in an untitled document (Attachment C) he submitted to the Committee, and was originally developed as a test for civil commitment. He stated that when you attempt to develop a test that is going to effect the lives of people, do not use an actuarial scale.
Mr. Grygla remarked that assessments were the only tools available in determining risk factors in sex offenders.
Ms. Opheim explained that assessments were used only as tools and were not the ultimate decision maker in assessing sex offenders.
Mr. Faull said that if a juvenile was prosecuted as an adult, the registration requirement for the list of sex offenders is required for the length of your probation.
Presentation on Treatment for Youthful Sex Offenders
Brent Gunnell stated that in the interest of time, he wanted to defer his presentation so that the family members may give public testimony.
Senator Johnson stated that this was acceptable and the Committee would accommodate Mr. Gunnell’s presentation at a future meeting.
Nancy Daily, representing self, said she would give a timeline of what happens to a juvenile when they are charged as an adult. She remarked that Devin Daily came into their home on October 17, 1996 at 5 years and 11 months old. She told the Committee that the Daily family consisted of eleven children, two by birth and nine from adoption. In April of 1997, Devin was found molesting one of the foster children in the Daily home at which point she began intensive therapy for these actions. In September of 1997, Devin revealed the secret she had kept with her birth mother, the stick game. This was where the birth mother and step father would molest her. She was then taught how to play this game with her half sibling the day they brought her home from the hospital. It was because of this admission that great advances were ahead for Devin in her therapy. In just under 18 months of therapy, she was released with a report that she was completely adoptable and safe with her other siblings. Garret Daily, Devin’s brother, began to show signs of aggression towards her. Child Protective Services (CPS) did not want the adoption disrupted so they placed a doctor and an art therapist in their home three days a week to help Devin and Garret build a bond. In the medical diagnosis, it was determined that Garrett was jealous of Devin because she was everything he was not. In February of 2000, when Nancy Daily prepared to finalize the adoption of these siblings, Garrett asked her to adopt the other kids but not to adopt Devin. Nancy Daily proceeded with the adoption for all the siblings and it was finalized. On August 21, 2001, Devin revealed that Garrett had been molesting her and her other siblings, a total of seven victims. August 22, 2001, Nancy Daily called the Gilbert Police, CPS and the family’s bishop. She drove Garrett to school and spoke with the vice president there who was shocked by the news as Garrett had never been in trouble at school. August 23, 2001, the girls were examined at Mesa Center in which the results were no sign of penetration or trauma to the vaginal area. That week was spent with the children being interviewed by the police and CPS. Mr. and Mrs. Daily instructed Garrett to tell the truth and to be polite. The Gilbert Police detective knew Garrett was on medication and would need his medication by 3:00 p.m. should he be detained. On August 25, 2001, Garrett’s school called Ms. Daily to inform her that an arrest had been made. From this point he was not allowed to have council, visitors or even receive his medication. That evening Garrett was awarded his Eagle Scout even though he was absent. On August 26, 2001, while on their way to the court house to pick Garrett up, the Daily’s received a phone call stating that he had been transported to the adult system even though no testing or trial had taken place. On August 27, 2001 as Ms. Daily prepared the children to go to church, Devin told her mother that she lied because she was afraid that she would be removed from the Daily household. Devin told her mother that she was the one who molested Garrett and the other children. The following morning, the Daily’s went to the police but were not allowed to speak to them about this. On December 27, 2001, Devin entered Bright Oaks which cost the family about $8,000 a month. Mrs. Daily was told by CPS that the only solution for her was to relinquish her parental rights, which they denied. In October of 2002, Garrett pleaded guilty to two counts of attempted child molestation. The prosecuting attorney told the family that he was not sure why this case was going forward but he had to do his job.
In response to Senator Johnson, Mrs. Daily explained that they pleaded guilty because Garrett was facing 40 years and the family’s attorney advised them there was very little chance of winning the case due to the uncertainty of what Devin would say once on the stand. The judge sentenced Garrett to two years in jail, Monday through Friday spent at the Dorothy Mitchell Residency and the weekends spent in the adult jail at the age of 16. Mrs. Daily noted that Garrett was placed in counseling by the family immediately once all of this news came out, before any legal prosecution took place. In December of 2002, Devin was released from Bright Oaks. Due to young children still living in the Daily household, Devin went to live with a family that had no other kids living there. In May of 2004, Garrett was released from the Dorothy Mitchell Residency and went to live with his Grandparents in a gated community in Chandler. He followed his rules of probation and acquired a job. Two weeks later, Garrett’s surveillance officer came to his school and told him he had to move out of his Grandparent’s home. He was then placed in the East Valley Men’s Center. On October 9, 2004, the Daily family received a phone call from the East Valley Men’s Center stating that Garret was in grave danger. He was eventually kicked out of the center becoming homeless until Mrs. Daily found him on the street. She immediately took him to work as not to violate his probation. Garrett’s surveillance officer showed up at his work place and announced to everyone in the front of the store that Garrett was a sex offender. At this point Garrett was instructed to go to a hotel in which he waited with his mother. Later, police officers arrived and arrested him for being kicked out of the East Valley Men’s Center. A guard at the jail told the other prisoners that Garrett was in there for sex offenses which is a fact that he was advised by his attorney, to keep a secret when incarcerated. At the advice of the family’s attorney, Garrett was placed on Intensive Probation Service (IPS). On October 13, 2005, Garrett was arrested once again, this time under 49 violations. Devin asked to speak in front of the court this time. On April 26, 2006, Garrett was arrested again for deviating from his IPS schedule and going to his high school counselor to ask about college.
Devin Daily told the Committee that her brother Garrett was on probation for molesting children because of a lie that she told. She stated that when she was young, her birth parents would molest her. Thinking this was normal behavior, she did this to her younger sister. Garrett did not like his sister Devin because of jealousy so Devin thought if she molested him like their parents did to her, he might like her. Later, both Garrett and Devin began to molest their younger sister also.
Mr. Daily stated that he has practiced dentistry for over 30 years in Chandler and is a father of 11 children. He stated that in his profession, he must constantly learn new ways and technologies to stay current in his field. He told the Committee that this was the same for those dealing with sex offenders. He stated that everyone in this field should keep an open mind to what is best for our children as opposed to who will win or lose as professionals, an understanding might be reached and people could get the necessary help. Mr. Daily remarked that although Garrett was not allowed to watch PG-13 rated movies in the Daily household, he now sits in counseling sessions with much older men where he is taught how to have sex with animals. He has also had his penis attached to a wire while being shown child pornography that he said was “disgusting.” He urged the Committee to work together for a common goal without worrying over personal gains.
Mr. Faull stated that his office was following up with issues raised by the public testimony.
Dan Raynack, attorney, stated that he did not believe anything would change for the better. He told the Committee the reason he came to testify was due to a story of a man in Arizona who was convicted of a sex crime at age 14. This man was now 31 and chose to go to prison for 10 years, to be released at the age of 41 as an alternative to spending one more day on probation as a sex offender. He stated that there was no reason to treat some of these children under the same guidelines as more severe offenders. He explained that once the account of a sex offense has been told to the authorities as the result of an arrest, whether it is true or not, it is held as the truth throughout the remainder of the case with no accounting for children being scared or protecting other siblings. He said that the probation department never sides with the children when they request an early probation termination. Mr. Raynack remarked that he hoped this Committee could help towards solving this issue.
Senator Johnson stated that she prayed about this having this Committee and to change the way sex crimes are handled was not an easy thing to do. She said that there was a major problem to be dealt with regarding youthful sex offenders and that it is absolutely necessary that something be done. She suggested that the Committee come together and at least begin to work on these issues. Senator Johnson encouraged families of sex offenders to go to their local Legislator and talk to them personally about this issue because unless you hear it in person, it’s hard to understand the need for help in this area.
There being no further business, the meeting was adjourned at 7:08 p.m.
(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 2, 2006
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