The new unconstitutionality of juvenile sex offender registration: suspending the presumption of constitutionality for laws that burden juvenile offenders.

AuthorKlein, Spencer

In Smith v. Doe, the Supreme Court held that Alaska's sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed the issue. This Note argues that the Court should suspend the presumption of constitutionality when conducting its ex post facto inquiry for laws that burden juvenile offenders. The Court should do so because the very rationales that underlie the presumption are inapplicable in both the case of juvenile offenders and the ex post facto context. In lieu of rational basis review, this Note proposes a new framework under which the Court may evaluate laws that burden juvenile offenders. Under this new framework, a law is automatically punitive when it activates one or more of three triggers. These triggers are activated when a sanction is (1) irrevocable for life, (2) substantially likely to cause severe psychological trauma, or (3) grossly disproportionate to the culpability of the offender.

TABLE OF CONTENTS INTRODUCTION I. A SPLIT ON WHETHER JUVENILE SEX OFFENDER REGISTRATION IS PUNITIVE A. Proving Punishment: Smith v. Doe B. Judicial and Academic Treatment of Juvenile Sex Offender Registration II. JUVENILE OFFENDERS AND THE PRESUMPTION OF CONSTITUTIONALITY A. Presumption Suspended: Carolene Products and Its Progeny B. Rationales for the Presumption and Juvenile Offenders in the Ex Post Facto Context III. CHILDREN ARE DIFFERENT: THE MILLER LINE AND THE PRESUMPTION A. The Miller Line: The Constitutional Rights of Juveniles B. Children's Differences C. The Miller Line and the Presumption of Constitutionality IV. THREE TRIGGERS: A PROPOSED FRAMEWORK CONCLUSION INTRODUCTION

Alexander D. of Michigan is not your paradigmatic sex offender. (1) When Alexander was seventeen, he was convicted of a sex offense after having sex with his fifteen-year-old girlfriend, who was below Michigan's age of consent of sixteen. (2) Since 2003, Alexander has registered as a sex offender, and his personal information has been readily available on a public internet registry. (3) As a result, he has lost jobs, fallen into poverty, and faced harassment by passersby. (4) His ex-girlfriend's parents even wrote a letter requesting his removal from the registry, but to no avail: Alexander will remain a registered sex offender until 2028. (5)

Remarkably, Alexander's story is far from unique. According to a 2009 Office of Juvenile Justice and Delinquency Prevention bulletin, juveniles comprise 25.8% of all sex offenders, and 35.6% of sex offenders known to have committed a sex offense against minors. (6) Among the juveniles who committed sex offenses against minors, almost half were convicted of "fondling," (7) and 9.5% were, like Alexander, convicted of a "nonforcible sex offense." (8)

Thirty-four states currently require that all juveniles who have been convicted of a sex offense--whether they were convicted in criminal court as adults or adjudicated delinquent in juvenile court--register on a sex offender registry. (9) Sixteen states and the District of Columbia require registration by only those convicted as adults. (10) Among the states that require registration of all juvenile sex offenders, nineteen states allow for publication of the juveniles' information. (11) In twelve states, judges are not given discretion to decide whether a juvenile must be subject to registration and community notification. (12) Six states require lifetime registration for juveniles who commit certain crimes. (13)

In implementing sex offender legislation, at both the state and federal level, law enforcement officials have interpreted the laws to apply retroactively. (14) Retroactive application of sex offender laws raises constitutional concerns. Under Article I, Section 9 of the U.S. Constitution, Congress is prohibited from passing an ex post facto law. (15) Article I, Section 10 imposes a similar prohibition on states. (16) The ex post facto prohibition does not apply to all retroactive laws, only laws that inflict punishment. (17)

Unsurprisingly, sex offenders convicted before the passage of registration and notification laws have brought challenges to those laws under the Ex Post Facto Clause of the U.S. Constitution. (18) With few exceptions, federal courts have been unwilling to hear such challenges, stating that sex offender laws do not constitute "punishment" and therefore cannot be assailed under the Ex Post Facto Clause. (19) Whether a law constitutes a punishment depends on several factors articulated in Kennedy v. Mendoza-Martinez, (20) including whether the law has a reasonable relationship to a nonpunitive purpose and whether the law is excessive in relation to that purpose. (21) In evaluating such factors, courts have applied a presumption of constitutionality, assuming all facts necessary to support the law's constitutionality. (22)

This Note contends that courts should suspend the presumption of constitutionality and conduct a more searching inquiry when determining whether laws that burden juvenile offenders are punitive. This Note also aims to provide a framework for assessing the constitutional rights of all juvenile offenders, regardless of the nature or severity of their offense. Part I provides a brief history of juvenile sex offender registration and discusses constitutional challenges to sex offender registration and, in particular, juvenile registration. Part II argues that the presumption of constitutionality is inappropriate when evaluating laws that burden juvenile offenders, since the rationales underlying the presumption are inapplicable to juvenile offenders and the ex post facto inquiry. Part III explains how a recent string of Supreme Court cases involving juvenile justice has introduced new principles into the Court's approach to the constitutional rights of juveniles, further justifying a suspension of the presumption. Finally, Part IV provides a framework under which courts should evaluate laws that burden juvenile offenders under the Ex Post Facto Clause. This framework incorporates lessons from the Court's earlier jurisprudence on the rights of juveniles discussed in Part III, and would treat as punitive sanctions that are (1) irrevocable for life, (2) substantially likely to cause significant psychological harm, and (3) grossly disproportionate to the offender's culpability.

  1. A SPLIT ON WHETHER JUVENILE SEX OFFENDER REGISTRATION IS PUNITIVE

    This Part provides an overview of courts' divergent approaches to the question of whether sex offender laws are punitive, both generally and as applied to juvenile offenders. Many sex offenders have challenged their registration requirements under the Ex Post Facto Clause. (23) For a challenge under the Ex Post Facto Clause to move forward, however, a law must be shown to be "punitive." (24) Section I.A discusses the Court's treatment of adult sex offender registration. Section I.B examines lower courts' consideration and recent scholarly discussion of juvenile sex offender registration.

    1. Proving Punishment: Smith v. Doe

      The Supreme Court has only considered sex offender laws through the lens of the Ex Post Facto Clause once. In Smith v. Doe, the Supreme Court dismissed an ex post facto challenge brought by adult sex offenders against Alaska's registration and notification law. (25) Under the Alaska law, anyone convicted of a sex offense was required to register with law enforcement officials. (26) After registration, an offender's information was forwarded to the Department of Public Safety, which maintained a registry of sex offenders' personal information, including registrants' names, aliases, addresses, and photographs. (27) While not a requirement of the law, Alaska chose to make most nonconfidential information available on the internet. (28) The central question in the case was whether Alaska's law constituted a retroactive punishment, prohibited under the Ex Post Facto Clause. (29)

      To determine whether a law is punitive, courts first look to legislative intent. (30) To ascertain legislative intent, courts start with the text and structure of the statute. (31) Courts also look to the statute's manner of codification (i.e., whether it was placed in the criminal section of the state's code) and enforcement procedures. (32) If it is clear that the legislature intended to impose a punishment, then the measure is punitive and the inquiry ends there. (33) Even where a punishment is not intended, however, a law may be "so punitive either in purpose or effect" that it transforms the measure from a regulation into a punishment. (34)

      Whether a law is punitive in effect depends on seven factors articulated in Kennedy v. Mendoza-Martinez. (35) These factors, while not "exhaustive or dispositive," (36) serve as "useful guideposts" in the Court's analysis. (37) In Smith, the Court looked to five Mendoza-Martinez factors: "[W]hether [the scheme] ... has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." (38)

      After concluding that the Alaska legislature did not intend to impose a punishment in passing its sex offender registration law, the Court in Smith moved on to the act's effects. Going through each of the first three factors articulated above, the Court concluded that each factor indicated that the measure was not punitive in effect. (39) The...

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