Liberty and Justice News

Senate Panel Probing Juvenile Sex-Offender Bill

A state Senate committee is hoping to put the final touches next week on a requirement to add juveniles convicted of certain sex crimes to Tennessee’s adult sex-offender registry.

Sen. Diane Black, a Gallatin Republican, is sponsoring the bill — which aims at making the state hew to a 2006 federal mandate handed down by the Republican-controlled Congress and President Bush — and told members of the Senate Judiciary Committee that she’d like to only add the most violent teen offenders to the registry.

Those targeted include 14 to 18-year-olds convicted of rape, rape of a child under 13 — if there is more than a four-year age difference between the offender and the victim — as well as aggravated rape of a child three years old or younger and aggravated sexual battery in cases where force or coercion with a weapon was involved in the crime.

Juvenile offenders added to the registry would have to be judged by a mental health professional as being at a “high risk” of re-offending.

Under Black’s version of the bill, offenders would be listed on the registry for 25 years. If an offender stays within substantial compliance with any requirements or restrictions placed on them by the court system, the individual can ask to be removed from the list when they turn 19. Those not in full compliance would have to wait an extra five years before requesting to be taken off the registry.

Tennessee’s online sex offender registry receives about 10,000 visits per day, said Black, quoting the Tennessee Bureau of Investigation. More than 32 states have some type of juvenile sex offender registry in place, she said.

“Admittedly, it is an extremely sensitive issue,” said Black. “It would give an opportunity for parents and other caregivers of small children to make sure that, as they have their children exposed to these offenders, that they are given knowledge that these are offenders that are the most serious offenders and have a high risk of re-offending.”

“The intent is to protect the innocent children,” she continued. “When a child is perpetrated, we know the kinds of results of what will happen with that child for the rest of their life. We are protecting the innocent. The purpose of this is not to punish the offender because there is nothing in (the bill) that will prevent them from getting rehabilitation. We want them to get rehabilitation.”

Several senators on the panel expressed reservations about the bill.

“Not all of us sit around and peruse registries all the time, I promise you,” Memphis Democrat Beverly Marrero told Sumner County District Attorney Ray Whitley, who was testifying in favor of the bill. “It looks like you’re trying to set up people for a sort of a paranoia where people are going out everyday and going on the internet and trying to find out how many sex offenders are in their neighborhood and if they’re walking down their street.”

If people are not obsessing with the adult sex offender registry, they won’t be when the registry adds teen sex offenders, Whitley said.

Sen. Doug Jackson, D-Dickson, said he supports the new registry but is worried about some of the particulars.

“I see cases where this is not serving the public’s interest, but it’s hurting the child,” he said. “There’s no discretion with the court…and that’s the hallmark of juvenile court. This is tying the judge’s hands…to come up with the appropriate remedy.”

The bill, Jackson said, might create a system that “sweeps all of the children in rather than weigh in some mitigating factors.”

Black said only around one percent of juvenile sex offenses covered by the bill are now sent to adult court.

“These juvenile judges are not sending these most serious offenses…to the adult court,” she said.

A number of people who testified about the legislation repeated much of what they said earlier this legislative session when House committees were considering the change in law. Legislation in the House has been advancing, but it was recently put on hold until the budget situation is resolved.

Some senators who support the bill voiced concerns Thursday about the measure’s particulars.

Sen. Dewayne Bunch, R-Cleveland, worried that a mental health professional’s report to a judge could override the discretion of that judge. Relying on a mental health professionals’ decision takes power away from judges, he said, adding that a decision as to whether a juvenile ends up on the registry become somewhat “predetermined.”

He also questioned whether an offender could appeal the finding of the mental health professional and whether a lawyer representing an offender would have to prioritize fighting the alleged crime against the risk of being a re-offender.

“Should we have a separate and distinct hearing about whether the person is high risk?” asked Bunch.

The committee later agreed to amendments by Sen. Brian Kelsey, R-Germantown, designed to put more of the risk-determination decision-making authority back in the hands of judges.

Bunch also criticized the bill’s definition of “mental health professional,” because it included such professions as a licensed clinical social worker and a licensed marriage and family therapist.

About five percent of minors in the 14-18 age-range would be affected by the legislation, Black said — though she also acknowledged those estimates might be low.

The bill is scheduled to come up for more discussion before the Judiciary committee Wednesday.

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State Sovereignty Supporter Pushes Federal Mandate in TN Legislature

Earlier this year, Republican state Rep. Debra Young Maggart co-sponsored a resolution demanding that the federal government refrain from further burdening Tennessee with unwarranted and potentially unconstitutional policy mandates.

But earlier this month, Rep. Maggart and Sen. Diane Black, R-Gallatin, expressed their interest in legislatively obligating the State of Tennessee to embrace an as-yet unfulfilled federal mandate, signed by George W. Bush, that critics say violates just the sort of constitutional principles lawmakers like Maggart saw fit to reiterate in their state sovereignty resolution last session.

The federal mandate at issue here is part of the Adam Walsh Child Protection Safety Act of 2006 (pdf). Among other things, it demands harsher treatment of juveniles found guilty of committing sex crimes — in particular, by posting youthful offenders’ pictures, names, birthdays and addresses online.

“The adoption of this legislation would put Tennessee into compliance with the requirements for juveniles to be placed on state’s Sex Offender Registries under the Adam Walsh Act which was scheduled to go into effect in 2009,” according to a press release issued Dec. 7 by Maggart and Black. “Tennessee was awarded over $50 million in Byrne Grant funding last year, 10 percent of which could be in jeopardy unless the state adheres to these requirements.”

Failing to abide by the Act could result in a loss of state law enforcement subsidies of $750,000 to $940,000 next year, the Tennessee Office of Criminal Justice Programs reports.

“Is it a mandate? Yes,” said Maggart.

But she sees little in her past advocacy for the sovereignty resolution — combined with her support now for the Bush-era federal mandate — to indicate she’s guilty of a political double standard.

“I know we need this money,” Maggart told “It is a mandate, but again, it is what we’re operating under, and I think that we should have uniform laws on sex offenders across the country because sex offenders are really clever.”

The Tennessee sovereignty resolution, House Joint Resolution 108 (pdf), was really meant to ward off unfunded mandates such as government-run health care or expansions of education programs, Maggart said. It wasn’t necessarily intended to label all the federal government’s directives to the states as bad.

“I just think they’re two different animals,” she said. Of the federal health legislation under consideration in Congress right now, Maggart said, “The costs are going to be out of this world.”

“But keeping sex offenders out of our community where they can prey on our children,” she added, “is a completely different thing.”

Michael Hough, a public safety specialist for the Washington D.C.-based American Legislative Exchange Council, said that elements of the Walsh Act, particularly the juvenile offender provisions, were upsetting to state lawmakers, many of them conservatives, from around the country who gathered in Atlanta last summer to discuss the law.

“Everyone basically agreed that parts of the law were very good, but — as happens a lot when the federal government passes things — they don’t really understand what’s going to happen when it is put out in the states.” said Hough, whose organization tends to promote state-level, small-government, market-oriented policy solutions.

Hough said many lawmakers complained of the costs associated with implementing much of the Walsh Act — that they’re in fact even higher than the potential Byrne grant cuts that would result from noncompliance.

Likewise, the National Conference of State Legislatures has stated that the Walsh Act works to “preempt many state laws and create an unfunded mandate for states.”

The Act was also found unconstitutional in April 2008 by a U.S. District Court judge in Florida, who declared that under the general reasoning inherent in the Walsh Act, “virtually all criminal activity would be subject to the power of the federal government.”

“Surely our founding fathers did not contemplate such a broad view of federalism,” wrote the judge.

His opinion was later overturned on appeal by the Eleventh Circuit Court of Appeals, which said the provisions of the United States Constitution allowing for regulation of interstate commerce permitted Congress to pass laws that “track those offenders who move from jurisdiction to jurisdiction.”

To date, only Ohio has adopted the Walsh Act, and currently it is under review in the state supreme court.

“This is not about kids playing doctor when they’re 10 years old,” said Maggart. “The needs of the community to be protected by a 16-year-old that’s a rapist, it outweighs everything.”

But Nashville defense attorney Brent Horst, himself a former sex-crimes prosecutor in Florida, said situations where children “playing doctor” crosses a line could result in an individual being publicly labeled as a heinous sort of criminal for decades.

“No one wants to be soft on sex offenders,” said Horst, but requiring that juvenile offenders be added to the adult registry is an “incredibly stupid, unfair and unjust” idea. It could end up subjecting a “a poor kid who’s just a normal teenager experimenting with his sexuality” to years of societal contempt, he said.

“It’s all about the (federal) money,” Horst added.

If approved by both chambers and OK’d by the governor, the new law would require juvenile offenders to register if they have been found guilty of crimes such as rape, aggravated sexual battery, aggravated rape, rape of a child, aggravated rape of a child or an attempt to commit of those crimes.

Juveniles convicted as adults under Tennessee law must already register with the sex offender website.

Maggart, who, like Sen. Black, is from Sumner County, was the No. 2 co-sponsor of the HJR108 sovereignty resolution. A very popular measure, it passed 85-2 in the House and 31-0 in the Senate. Black didn’t appear to vote on the legilsation.

HJR108 reaffirmed Tennessee’s claim as a self-governing jurisdictional entity in keeping with the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

HJR108 also lamented that while “the federal government was created by the states specifically to be an agent of the states…today, in 2009, the states are demonstrably treated as agents of the federal government.”

Similar measures were enacted in several other states, but on June 23 Phil Bredesen put pen to paper and made Tennessee’s the first such resolution in the country signed by a governor.

The resolution’s chief sponsor last spring, Rep. Susan Lynn, R-Mt. Juliet, says she tends to agree with Maggart — that the Hendersonville Republican’s effort to list juveniles on public sex offender electronic bulletin boards is more an effort to improve public safety in Tennessee than an attempt to suck up to Washington, D.C.

“This would be a Tennessee law to put juveniles on a sex offender registry,” said Lynn, who supports the bill. “It would happen to be coincidence, as far as I’m concerned, that the federal government is mandating this.”