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.

• Author: Schram, Krista L.

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.

1. INTRODUCTION

   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. (16) This note will also present a discussion of the New Jersey sex offender statutory scheme because it provides an important model of procedural due process. (17) Finally, this note concludes that Justice Sabers correctly argued that Z.B. and other adjudicated juvenile sex offenders should be afforded procedural due process beyond what the current statutory scheme provides. (18)

2. FACTS AND PROCEDURE

   While his parents were at a meeting, fifteen-year-old Z.B. was placed in charge of his four siblings. (19) Z.B.'s family consists of his adoptive parents and four siblings. (20) Two of Z.B.'s siblings, G.B., a nine-year-old girl and W.B., an eight-year-old boy, are the biological children of Z.B.'s adoptive parents. (21) Z.B. also has two other adopted sisters, K.B., seven years old, and M.B., four years old. (22) When Z.B.'s parents returned home from their meeting, G.B. told them that Z.B. had tried to "sex her." (23)

   A petition was filed on January 18, 2007, alleging that Z.B. was a Child in Need of Supervision. (24) A subsequent investigation into the matter was conducted, and it was determined that Z.B. had engaged in sexual conduct with G.B. and K.B. (25) An amended petition was filed, and it contained five counts:

   Count 1: Child in Need of Supervision[;] Count 2: Sexual Contact with a Child Under Sixteen Years of Age, with the victim being G.B.[;] Count 3: Sexual Contact with a Child Under Sixteen Years of age, with the victim being K.B.[;] Count 4: Rape in the First Degree, with the victim being G.B.[; and] Count 5: Rape in the First Degree, with the victim being K.B. (26) After the petition had been filed, an adjudicatory hearing was held. (27) At the hearing, Z.B. admitted to Count 4 and Count 5. (28) A circuit court in the Fourth Judicial Circuit in Butte County (29) held a dispositional hearing, and adjudicated Z.B. delinquent for committing two first degree rapes. (30) The court ordered that Z.B. be remanded to the custody of the Department of Corrections, and that Z.B. register as a sex offender. (31) Z.B. appealed the circuit court's decision to the South Dakota Supreme Court. (32)

   On appeal, Z.B. raised four issues. (33) The court only addressed the equal protection and procedural due process arguments, and declined to reach the remaining two issues. (34) The court first addressed the equal protection argument raised in Z.B.'s appeal. (35) Z.B. argued that S.D.C.L. section 22-24B-236 violated equal protection, because Z.B. and other similarly situated juveniles, ages fifteen, sixteen, and seventeen, had no right to a jury and were unable to have their names removed from the sex offender registry by receiving a suspended adjudication of delinquency. (37) Z.B. further claimed that S.D.C.L. section 2224B-2 created an arbitrary classification that treated juvenile offenders differently and more harshly than adult offenders because adults may be removed from the registry by complying with certain requirements of a suspended imposition of sentence. (38) Juveniles had no opportunity to receive a suspended adjudication of delinquency, (39) and thus would be placed on the sex offender registry for life. (40) Finally, Z.B. argued that no legitimate legislative purpose existed that was rationally related to treating a juvenile sex offender differently and more harshly than adult offenders convicted of the same crime. (41) In addressing the equal protection issue, the South Dakota Supreme Court determined that the State was unable to provide a rational basis as to why juveniles were treated differently and more harshly than adults under South Dakota's sex offender statutory scheme. (42) The court concluded, "[t]hus, to the extent that SDCL 22-24B-2 requires Z.B. and other juveniles in the same situation to register, it is unconstitutional." (43) Therefore, the South Dakota Supreme Court unanimously reversed the circuit court's order requiring registration and held S.D.C.L. section 22-24B-2 violated Z.B.'s and other similarly situated juveniles' rights to equal protection under the law. (44)

   In addition to the violation of equal protection, Justice Sabers, writing in dissent, would have also struck down S.D.C.L. section 22-24B-2 for violating procedural due process. (45) Justice Sabers argued that the statute deprived Z.B. and other adjudicated juvenile sex offenders of liberty interests without accordingly providing proper procedural due process protections before submission to registration and community notification. (46)

3. BACKGROUND

   1. History of the Juvenile Justice System in America

      Prior to the eighteenth century, the law in America did not differentiate between adult and juvenile offenders. (47) Under this classic view, children and adults were treated alike. (48) During the late eighteenth and early nineteenth centuries, the United States adopted a significant doctrinal change. (49) This doctrinal change was in response to the growing recognition of the differing reasons for juvenile criminal behavior. (50) A child's misbehavior was attributed to factors outside of the child's control. (51) These factors included: "economic status, home life, environment, genetics, immaturity leading to impulsivity, inability to assess consequences, and lack of experience and judgment." (52)

      In response to the special needs of children, in 1899 the Illinois Legislature passed the first law that created a new and separate juvenile court system (53) specifically "to resolve legal problems concerning dependent, neglected, and delinquent children." (54) The two main objectives of the newly formed juvenile justice system were rehabilitation and strict confidentiality. (55) The juvenile justice system was built on the premise that "children--even children who broke the criminal law--differed from adults," and thus "required not only separate but different treatment before the law." (56)

      The juvenile justice system was founded on the philosophical ideal of rehabilitation, or rather, "the theory that the state is parens...