Academic journal article Harvard Law Review

Criminal Law - Sex Offender Registration - Ninth Circuit Holds That Retroactive Application of SORNA to Juvenile Violates Ex Post Facto Clause

Academic journal article Harvard Law Review

Criminal Law - Sex Offender Registration - Ninth Circuit Holds That Retroactive Application of SORNA to Juvenile Violates Ex Post Facto Clause

Article excerpt

CRIMINAL LAW--SEX OFFENDER REGISTRATION--NINTH CIRCUIT HOLDS THAT RETROACTIVE APPLICATION OF SORNA TO JUVENILE VIOLATES EX POST FACTO CLAUSE.--United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009).

Since the 1990s, spurred by several highly publicized sex crimes against children, Congress and state legislatures have implemented registration laws for convicted sex offenders, many of which have resulted in the creation of public internet databases containing offenders' criminal histories and other personal information. (1) In 2003, the Supreme Court held in Smith v. Doe (2) that the application of a state sex offender registration law to adults convicted prior to its enactment was not retroactive punishment violating the Ex Post Facto Clause of the Constitution, (3) but rather was a valid regulatory measure aimed at public safety. (4) Recently, however, in United States v. Juvenile Male, (5) the Ninth Circuit held that the retroactive application of the Federal Sex Offender Registration and Notification Act (6) (SORNA) to former juvenile delinquents was punitive and hence constitutionally impermissible. Though the opinion is based on sound policy concerns about the wisdom of juvenile sex offender registration laws, it does not sit comfortably with Supreme Court precedent: Juvenile Male relies on an overly restrictive reading of Smith and oversteps the boundaries of the Supreme Court's ex post facto inquiry. The issues the opinion raises, however, make clear the need for legislative action to ameliorate SORNA's overly aggressive approach to juvenile offenders.

In 2006, Congress enacted SORNA, which requires sex offenders to register in their jurisdiction of residence (7) and to provide a variety of information, such as their photograph, address, and criminal history, (8) for the public to access online. (9) The requirements also apply to juveniles aged fourteen or older who have committed offenses comparable to or more severe than aggravated sexual abuse. (10) Congress delegated to the Attorney General the power to determine how SORNA would apply to offenders convicted prior to its enactment. (11) In 2007, the Attorney General issued a regulation stating that SORNA applied retroactively. (12)

In 2005, at age fifteen, defendant S.E. pled "true" to sexual acts that would constitute aggravated sexual abuse if committed by an adult. (13) Under the procedures of the Federal Juvenile Delinquency Act (14) (FJDA), the district court sentenced him to two years confinement at a juvenile facility. (15) The FJDA requires that juvenile records be "safeguarded from disclosure to unauthorized persons" (16) and that "neither the name nor picture" of the juvenile be made public in connection with the proceeding. (17) Accordingly, S.E.'s proceedings were closed to the public. (18) In 2007, having failed to participate in a prerelease job search, authorities sentenced S.E. to an additional six months of confinement and ordered him to register as a sex offender under SORNA. (19) He appealed, arguing that SORNA's retroactive application to juveniles violated the Ex Post Facto Clause. (20)

The Ninth Circuit vacated the registration order. (21) Writing for a unanimous panel, Judge Reinhardt (22) began by noting that the ex post facto inquiry depended on whether SORNA's juvenile requirements were punitive or civil. (23) This distinction turned first on whether the legislature intended to impose punishment--if so, the retroactive measure per se violates the Ex Post Facto Clause. (24) Because S.E. had conceded that Congress's intent in enacting SORNA was not punitive, however, the court did not address this issue. (25) The second step was to examine whether SORNA was nevertheless impermissibly punitive in its effects. Four factors from Kennedy v. Mendoza-Martinez (26) guided this analysis: (1) whether the measure imposes an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it promotes the aims of punishment, particularly retribution and deterrence; and (4) whether it appears excessive in relation to its nonpunitive purpose. …

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