PUNISHMENT THAT DOES NOT FIT THE CRIME: THE UNCONSTITUTIONAL PRACTICE OF PLACING YOUTH ON SEX OFFENDER REGISTRIES.

• Author: Brost, Ashley R.

1. INTRODUCTION

   J.L., a 14-year-old from Sioux Falls, South Dakota, first met his former girlfriend, L.C., through a mutual friend in June of 2008. (2) After meeting J.L. multiple times, 12-year-old L.C. invited J.L. over to her mother's house. (3) The two engaged in consensual sexual intercourse and continued to do so into the next year. (4) In July of 2008, L.C. became pregnant, which triggered investigations by L.C.'s middle school resource officer as well as the Sioux Falls Police Department. (5) A DNA test confirmed J.L. was the biological father of the baby. (6) Although separated by only 15 months in age, and even though J.L. and L.C. were both under the age of consent in South Dakota, J.L. was ultimately charged and adjudicated for first-degree rape, a Class "C" felony that carries a sentence of up to life imprisonment if convicted as an adult. (7) Additionally, because J.L. was 14, South Dakota law required him to register as a sex offender for life. (8)

   J.L. appealed his lifetime registry to the South Dakota Supreme Court, where a unanimous court affirmed the registration, but not without pause. (9) Justice Meierhenry, joined by Justices Konenkamp and Severson, concurred specially to note that there are "serious problems with a juvenile delinquency petition" that requires a juvenile register as a sex offender for life. (10) Justice Meierhenry argued that the "consequences of labeling this fourteen-year-old juvenile a sex offender for life are far afield from the intended purpose of a juvenile petition of 'affording guidance, control, and rehabilitation of any... delinquent child.'" (11) Although the three justices recognized that labeling J.L. as "a rapist and life-long sex offender almost assures he cannot succeed as a productive juvenile or adult[,]" the court could not conclude as a matter of law that his forced registration was an absurd result based on the plain language of the applicable statutes. (12) While the juvenile justice system "is intended to encourage rehabilitation, 'unlike the harsher, more punitive adult system,'" J.L's mandatory registration requirement ensures he will spend his life dealing with far harsher conse-quences than his actions deserve. (13)

   J.L.'s situation is not uncommon for youth charged with sex offenses in the juvenile justice system. (14) T.T., for example, was a 12-year-old boy from New Jersey when he inserted a feminine product into the anus of his six-year-old half-brother. (15) Consequently, T.T. pled guilty to aggravated sexual assault, was incarcerated, and required to register as a sex offender for life. (16) Similarly, G.P., a ten-year-old boy from Texas, was found guilty of indecency with a child after he "touched" his seven-year-old cousin. (17) G.P. is now "subject to lifetime registration." (18) Leah was ten-years-old and still in elementary school when she was placed on the sex offender registry for "flashing" and simulating the action of sex with her fully clothed younger siblings. (19) As part of Leah's sentence, she is forced to remain on the registry for 27 years. (20) In 2014, Oliver was a 14-year-old 8th grader in Minnesota when he sent a photo of his genitals via text. (21) As a result, Oliver was placed on the Minnesota sex offender registry for distributing child pornography. (22) Oliver is no longer allowed to be in a room alone with his younger brother, and now, he must remain under the constant watch of one of his parents--24 hours a day, seven days a week. (23)

   Today, there are approximately 805,000 individuals listed on sex offender registries, with 39 states including youth. (24) While precise data is unavailable for the exact number of juveniles on the registries, "it appears that as many as 24,000... registered sex offenders are juveniles," and one-third of that population is 14 or younger. (25) In 2013, the median age for conviction of a sexual offense by a juvenile was 15, with 16 as the median age of first enrollment on the registry. (26) Some states, however, will register youth as young as nine years old. (27) A 2009 Department of Justice study that focused only on sex crimes committed by children against child-victims found that "one in eight youth sex offenders who commit crimes against other children [are] younger than 12." (28)

   Sexual desires rarely motivate children who are placed on the registry. (29) Instead, children tend to offend based on "impulsivity and sexual curiosity, which diminish with rehabilitation and general maturation." (30) In fact, a recent study found that juvenile offenders have a less than two percent recidivist rate. (31) Yet, in spite of these known low rates of reoffending, under the mandatory registration requirements of current federal law (as well as many states), youth--including the 98% that will likely never reoffend--are forced to be "caught in the maelstrom of the sexual registry and all of its consequences." (32)

   The following article provides a history of the evolution of juvenile registry laws and the constitutionality of placing youth on sex offender registries. (33) The article urges states to recognize the harm imposed by notification and registration requirements on youth registrants and to acknowledge the negative fiscal consequences of placing youth on registries. (34) This article contends that juvenile courts should focus its resources on rehabilitation rather than imposing the harsh punishment of registration. (35) Finally, this article urges South Dakota to not only discontinue the practice of placing juveniles on registries, but also to retroactively remove and expunge any youth currently on the registry. (36)

2. BACKGROUND

   When federal sexual registration laws were first adopted, youth were not included. (37) In the mid-1990s, however, as the media stirred up fear about juvenile "superpredators," society began to paint youth as a threat to public safety. (38) While the "superpredator jeremiads... proved to be nonsense," they still had consequences. (39) In response to the "hysteria," many states revised their statutes to include children adjudicated delinquent of sex offenses on their state registries. (40) In 2006, youth offenders were also added to federal regulations. (41) Yet, the inclusion of children on registries raised significant constitutional concerns. (42)

   1. ADAM WALSH CHILD PROTECTION AND SAFETY ACT

      The Federal Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act") established a national sex offender registration system under the Sex Offender Registration and Notification Act ("SORNA") (43) SORNA requires states to impose registration requirements on juvenile sexual offenders or otherwise lose ten percent of their Edward Byrne Memorial Justice Assistance Grant Programs grant funding. (44) Although some states registered youth prior to the passage of SORNA, the federal statute did not expressly require or prohibit the inclusion of youth offenders. (45) In 2006, "Congress redefined the term 'convicted' in the Adam Walsh Act to include juvenile adjudications of delinquency...." (46) The Act's change required states to create uniform registration mechanisms and definitions that applied to both adults and youth sex offenders. (47) However, under SORNA, state courts still have the power to analyze their individual registration schemes according to their state constitutions. (48) If the registration requirements are deemed unconstitutional by the state's highest court, the states' federal Byrne grant funding is not jeopardized. (49)

      Currently, 20 states and territories have "substantially implemented" SORNA. (50) SORNA developed a series of documents to define and guide jurisdictions in their implementation of the Act. (51) These guides provided a set of minimum registration and notification standards to achieve substantial compliance. (52) Compliance with SORNA, however, has been uneven. (53) A number of states have opted to accept deductions in their federal Byrne funding, acknowledging that the high cost and unknown benefits of registering youth does not make the monetary benefit worthwhile. (54) According to the National Consortium for Justice Information and Statistics, the most commonly cited barrier to SORNA compliance is its juvenile registration and reporting requirements. (55) In 2008, the Council of State Governments issued a resolution urging Congress to revise SORNA to better address the needs of youth offenders. (56) This Resolution prompted the United States Attorney General to remove any SORNA requirements that mandated jurisdictions to publicly disclose information about sex offenders whose predicate sex offense "convictions" are juvenile delinquency adjudications. (57)

   2. CONSTITUTIONALITY OF PLACING YOUTH ON SEX OFFENDER REGISTRIES

      The United States Supreme Court has yet to decide whether the placement of youth on sex offender registries constitutes "punishment." The first modern challenge to sex offender registration schemes came in Smith v. Doe. (58) In Smith, the Court held that the retroactive application of a sex-offender-registration scheme did not violate the ex post facto clause because the registration scheme was civil in nature. (59) The Court reasoned that "[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment."(60) The Court relied on the later disproven belief that the public should be protected from sex offenders who recidivate at very high rates. (61)

      Ohio and Pennsylvania are the only two states that have found juvenile registration unconstitutional, however, a number of other states are making strides in this area. (62) Successful state challenges relied on the United States Supreme Court's conclusions in Roper v. Simmons, (63) Graham v. Florida, (64) and Miller v. Alabama, (65) which underline the important differences between the treatment of children and adults in the justice system. (66)

      1. United States Supreme Court

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