The Need for Heightened Procedural Due Process Protection in Juvenile Sex Offender Adjudications in South Dakota: An Analysis of the People in the Interest of Z.B
Schram, Krista L., South Dakota Law Review
South Dakota's sex offender statutory scheme, specifically S.D.C.L. section 22-24B-2, mandates that adjudicated juvenile sex offenders, who have not received a suspended adjudication of delinquency or who are not granted a petition for removal, participate in registration and full disclosure community notification. S.D.C.L. section 22-24B-2 does not provide a juvenile the opportunity to participate in a risk assessment hearing in order to determine the scope of community notification. In essence, S.D.C.L. section 22-24B-2 effectively deprives juvenile sex offenders of their liberty interests without providing due process in the form of a risk assessment hearing. In addition, S.D.C.L. section 22-24B-2 directly conflicts with the rehabilitation and confidentiality goals of the juvenile justice system. In order to protect juvenile sex offenders' liberty interests, the South Dakota Legislature, as Justice Richard Sabers urged in the dissent in The People In The Interest of Z.B., should consider other states' statutory schemes in order to implement an adequate procedural due process protection.
Prior to 1997, South Dakota did not require juveniles adjudicated of sex crimes to register as sex offenders. (1) In 1997, the South Dakota Legislature amended S.D.C.L. section 22-24B-2 to require a juvenile, fifteen years or older to register as a sex offender when adjudicated of the delineated sex crimes of rape, felony sexual contact, or promotion of the prostitution of a minor. (2) Currently, juveniles who do not receive a suspended adjudication of delinquency or who are not granted a petition for removal must register and submit to full disclosure community notification provisions for life. (3)
In The People In the Interest of Z.B., (4) the South Dakota Supreme Court had the opportunity to examine the constitutionality of the sex offender registry and community notification laws as applied to juveniles. (5) The majority concluded that S.D.C.L. section 22-24B-2 was unconstitutional as it violated Z.B.'s right to equal protection under the law and the equal protection rights of all similarly situated juveniles. (6) In the dissenting opinion, Justice Richard Sabers joined the majority with respect to the equal protection issue, but further argued that S.D.C.L. section 22-24B-2 violated the liberty interests of juvenile sex offenders because it deprived them of procedural due process in the form of an assessment hearing prior to registration and community notification. (7)
The South Dakota Supreme Court has previously stated that procedural due process "protects certain substantial rights, such as life, liberty, and property, that cannot be deprived except in accord with constitutionally adequate procedures." (8) Additionally, the United States Supreme Court has concluded that procedural due process encompasses the right to be heard on matters that affect one's rights and liberties. (9) Under S.D.C.L. section 22-24B-2, an adjudicated juvenile sex offender is not given the opportunity to be heard in the form of a risk assessment hearing before the juvenile is required to register and submit to full disclosure community notification. (10) Therefore, as concluded by Justice Sabers, adjudicated juvenile sex offenders who are required to register and submit to community notification without a prior assessment hearing are effectively denied the constitutional right to procedural due process. (11)
Initially, this note discusses the factual and procedural background of The People In the Interest of Z.B. (12) Next, this note focuses on the historical development of the juvenile justice system (13) followed by a discussion on the development of the national sex offender registry and community notification legislation. (14) Then, this note presents a discussion of the South Dakota sex offender statutory scheme (15) as well as the constitutional debates that encompass sex offender statutory schemes. …