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Retroactive Requirement to Register as Sex Offenders Violates Ex Post Facto Clause When Applied to Juvenile Offenders:

So holds a unanimous Ninth Circuit panel opinion, authored by Judge Reinhardt, in United States v. Juvenile Male (handed down today). As the panel said,

Congress in 2006 enacted the Sex Offender Registration and Notification Act and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents.

The panel said such retroactive application violates the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84 (2003), held that a similar requirement applied to adult offenders didn't violate the law, because it was a civil regulatory scheme and not something tantamount to criminal "punishment." (Since 1798, the Supreme Court has held that the Ex Post Facto Clause applies only to criminal and punitive retroactive legislation, and not to civil legislation or various regulatory disabilities.) But the panel distinguished Doe on the grounds that as to juvenile adjudications -- but not adult convictions -- the retroactive registration and reporting requirement "serves to convert a rehabilitative judicial proceeding, sheltered from the public eye, into a punitive one, exposed for all to see."

The decision is not implausible, especially in light of how mushy the Court's description of the civil/criminal line in Ex Post Facto Clause cases has been. Nonetheless, given that the decision holds unconstitutional some applications of a federal statute (as implemented by the Attorney General's regulations), and given that the decision is also not clearly correct, it seems likely that the U.S. Supreme Court would agree to hear the case even in the absence of a circuit split -- if, that is, the Solicitor General petitions the Court for certiorari.

It will be interesting to see what the SG's office does here. In Smith v. Doe, Justices Stevens, Ginsburg, and Breyer dissented, and Justice Souter concurred in a way that suggested that he thought Smith was a very close case. Their views on the issue even as to notification for adult convicts, and the views of the liberal panel in this case as to notification for people who had been found guilty as juveniles, suggests that the liberal decisionmakers in the SG's office are likely to sympathize with the result below. The question is both the extent to which they'll feel some obligation to defend the wishes of a past Congress (as implemented by the Department of Justice of a past Administration), and the extent to which the current Administration feels some pressure to back the application of the registration and reporting law in cases like this.

Thanks to How Appealing for the pointer.

OrinKerr:
Nonetheless, given that the decision holds unconstitutional some applications of a federal statute (as implemented by the Attorney General's regulations), and given that the decision is also not clearly correct, it seems likely that the U.S. Supreme Court would agree to hear the case even in the absence of a circuit split -

Also, it's Reinhardt.
9.10.2009 7:20pm
Nunzio:
Older boy who was sexual predator of younger boy for two years. I'm sure he's cured and is no danger to anyone anymore.
9.10.2009 8:05pm
martinned (mail) (www):

Older boy who was sexual predator of younger boy for two years. I'm sure he's cured and is no danger to anyone anymore.

It is impossible to overstate how much that is not the point.
9.10.2009 8:33pm
Steve:
Well, unfortunately, you can't impose an ex post facto punishment on someone just because they're "still a danger." Something about the Constitution.
9.10.2009 8:33pm
mga4 (mail) (www):
The distinction between adult and minors makes absolutely no sense in this context. Either the registration requirement is punishment or it's not. It can't be punishment for children and not for adults. This is the sort of distinction for which the 9th Circuit has become — rightly — infamous.
9.10.2009 8:34pm
ShelbyC:

Well, unfortunately, you can't impose an ex post facto punishment on someone just because they're "still a danger." Something about the Constitution.


Yeah, but you &I are too stupid to understand what the word "punishment" means. Judges aren't.
9.10.2009 8:46pm
Dave N (mail):
Here's my take:

Judge Reinhardt is wrong (which is easy for me to say because I usually think he is). I don't see a real distinction between this case and Smith v. Doe, and don't see the distinction between adult and juvenile offenders that Reinhardt draws.

That said, as conservative as I usually am on criminal justice matters, I think Smith was wrongly decided. Collateral consequences should be known at the time of conviction and I disagree with collateral consequences being retroactively applied.
9.10.2009 8:49pm
martinned (mail) (www):

Collateral consequences should be known at the time of conviction

Don't you mean the time the crime is committed?
9.10.2009 8:52pm
Steve:
Sooner or later we will find the appropriate case for Justice Thomas to overrule Calder v. Bull!
9.10.2009 8:58pm
Dave N (mail):
Martinned,

Actually, time of offense is even better. But since counsel is required if incarceration is even theoretical, I am satisfied if the attorney representing the perp has the opportunity to tell him, "If you plead guilty or are found guilty, here's what's going to happen in the future."
9.10.2009 9:00pm
David Schwartz (mail):
I agree entirely with Dave N. I think this case helps to show that Smith v. Doe was wrongly decided. Much like a certain recently-argued election financing case helped to show that a certain other case was wrongly decided.
9.10.2009 9:14pm
martinned (mail) (www):
@Dave N: Sure, fair enough, but for the purposes of the ex post facto clause, or - in even better latin - the rule of nulla poena sine lege, all that matters is the time the crime was committed, right?
9.10.2009 9:17pm
PatHMV (mail) (www):
Congress can constitutionally delegate to the executive branch the power to decide whether to apply a new law retroactively or not?
9.10.2009 9:23pm
Anatid:
Doesn't this also affect how a jury might decide a case? For example, in California, many times a jury will convict for lesser charges (ex. possession of drug paraphernalia) but acquit for a main violent charge, if they have the knowledge that this would be the defendant's third strike and he'd go to prison for life.

Similarly, knowing that the fifteen-year-old you're about to convict is going to be on a list of people whose freedoms are restricted until the day she dies, you might come to a different decision than if you believe she'd serve her time in juvie and be off after a year or two.
9.10.2009 9:25pm
Daniel Chapman (mail):
Count me as another who thinks Smith was wrongly decided. They can call it a civil regulatory scheme all they want, but if they tried to impose SORNA's regulations on anyone not convicted of a politically unpopular crime it'd be a due process violation of some sort.
9.10.2009 9:29pm
Guest101:
I'll join the chorus regarding Smith. Given the consequences of sex offender registration it is simply absurd to argue that it isn't punitive.

That said, it's hard to distinguish this case from Smith merely on the ground that it involves juveniles, and I'd say it's unlikely that the current Court will overrule Smith. Alito is surprisingly reasonable on criminal law matters from time to time but I wouldn't expect him to break to the left of Kennedy on this. So, yeah, looks like a strong candidate for cert and yet another reversal of the 9th.
9.10.2009 9:44pm
Mike& (mail):
I'll join the chorus regarding Smith. Given the consequences of sex offender registration it is simply absurd to argue that it isn't punitive.

Same here. Yet the conservatives on the Court found otherwise. Judicial activism?
9.10.2009 9:49pm
Daniel Chapman (mail):
I forget... do liberals actually believe "judicial activism" means "ruling I don't like" or is that just a definition they're trying to push in order to defeat a phrase that was gaining traction with the public?

If it's the first, then you're wrong Mike. If it's the 2nd, you're probably trying to fool the wrong crowd.
9.10.2009 10:13pm
ShelbyC:
Agree about Smith. But I wonder, to what extent does Smith effect laws in other states? Folks treat it as if it decided the issue for all 50 states, but SCOTUS's assesment of the facts regarding the intent of the Alaska legislature and the effects of the Alaska statute aren't binding on lower courts deciding the issue in other states, correct?
9.10.2009 10:16pm
Daniel Chapman (mail):
To the extent that Alaska's statute is similar, it's binding. I'm guessing that there aren't any significant differences between a law in alaska ordering sex offenders to register and a law in indiana.

Anyway, the real reason this is all going to come to a head is SORNA. The Feds are tying law enforcement grant money to a requirement that states update their sex offender registration laws to a minimum federal standard. One of the most contentious points is that SORNA requires juveniles to register under certain circumstances when a lot of states exempt juveniles from sex offender reporting. Also, SORNA increases the length of time a person has to register for a lot of states.

If Smith applies to SORNA (which it does by all indications), then it will affect all states equally.
9.10.2009 10:23pm
Tim Nuccio (mail) (www):

The distinction between adult and minors makes absolutely no sense in this context. Either the registration requirement is punishment or it's not. It can't be punishment for children and not for adults. This is the sort of distinction for which the 9th Circuit has become — rightly — infamous.



Or it could be the building blocks to overrule another case. I personally think that sounds like a good idea in this instance.
9.10.2009 10:26pm
Cornellian (mail):
Smith v. Doe, 538 U.S. 84 (2003), held that a similar requirement applied to adult offenders didn't violate the law, because it was a civil regulatory scheme and not something tantamount to criminal "punishment."

This conclusion ignores reality. Given the choice on conviction of a $1000 fine (which is certainly "punishment") or a lifetime registration as a sex offender, who would choose the latter? Does anyone really think being branded with the scarlet letter of sex offender isn't punishment?
9.10.2009 10:27pm
Daniel Chapman (mail):
Of course we'd all rather that we not have a sex offender registry but darnit, we've just GOT TO to protect "the children!"
9.10.2009 10:29pm
ShelbyC:

To the extent that Alaska's statute is similar, it's binding.


Wouldn't the intent of the other state's legislature have to be similar? According to the ruling, the statute is punitive if the legislature intends it to be, or if it in punative in effect.

It's certainly possible for two states to pass the same statute with different intent. It's also possible, but less likely, for the same statute to have different effects in different states.

So the court found that AK's statute was neither punative in intent nor in effect, but those are factual determinations, and you wouldn't think they'd be binding on other courts.
9.10.2009 10:38pm
David Schwartz (mail):
Yet the conservatives on the Court found otherwise. Judicial activism?
Again, I draw parallels to Citizen's United and Austin. Sometimes you have to see what your ruling actually does to realize it was wrong.
9.10.2009 10:56pm
Frank Drackman (mail):
Is this the same Judge Reinhold who wacked off to Phoebe Cates in "Fast Times at Ridgemont High"?? Phoebe Cates has a sharper legal mind...
9.10.2009 11:04pm
Angus:
I forget... do liberals actually believe "judicial activism" means "ruling I don't like"
Yes, some of us believe that is the common definition of the term. Maybe a handful of legal scholars would adhere to principle, for the vast majority of people who criticize "judicial activism," it boils down to disagreement with the outcome.
9.10.2009 11:21pm
GatoRat:
I've never understood the courts logic concerning ex post facto laws. Once again, the words are plain, but the reasoning is not.
9.10.2009 11:28pm
David Schwartz (mail):
Angus: My favorite example of that was my right-wing Christian friends anger at the "judicial activism" in the Terri Schiavo case. Apparently, when a judge follows well-settled law that they don't like, that's judicial activism too. The irony is that the ruling was even clearly supported by biblical passages (that a woman's ties to her parents yield to her ties to her husband when she gets married).
9.10.2009 11:51pm
Mike McDougal:

Older boy who was sexual predator of younger boy for two years. I'm sure he's cured and is no danger to anyone anymore.

Is there any empirical evidence that sex offender registrations have achieved any substantive crime control or prevention goal? I've never heard of any such evidence, and I'd like to see it if there is some.
9.11.2009 12:20am
Mike McDougal:

This conclusion ignores reality. Given the choice on conviction of a $1000 fine (which is certainly "punishment") or a lifetime registration as a sex offender, who would choose the latter? Does anyone really think being branded with the scarlet letter of sex offender isn't punishment?

Given the choice, I'd choose to spend a few months in jail over being put on a sex offender registry for life.

If the question is simply whether publicly accessible sex offender registries are punitive, I don't think it's even a close question. They are punitive.
9.11.2009 12:27am
Mike McDougal:

Wouldn't the intent of the other state's legislature have to be similar?

Why is legislative intent relevant at all? Giving credence to "intent" only encourages legislatures to lie. Why should my freedom from ex post facto laws be contingent upon the guile of my state's legislature?
9.11.2009 12:35am
Dave N (mail):
Is this the same Judge Reinhold who wacked off to Phoebe Cates in "Fast Times at Ridgemont High"?? Phoebe Cates has a sharper legal mind...
Reinhart, not Reinhold, though I think the ditzy actor would probably get the law right more often than the learned judge.
9.11.2009 1:05am
Dave N (mail):
OOPS! Reinhardt not Reinhold.
9.11.2009 1:06am
freedomfan:
I also fall into the camp to whom it seems that mandatory inclusion on a sex offender registry is clearly punishment, for both minors and adults.

Mike McDougal makes some good comments and asks:

Is there any empirical evidence that sex offender registrations have achieved any substantive crime control or prevention goal? I've never heard of any such evidence, and I'd like to see it if there is some.

This is outside my expertise, but, basically, what I have seen indicates that the Megan's Lay-type registries aren't effective. From the executive summary of the 2008 Zgoba et al. study for the NJ Dept. of Corrections:

[...]
* Megan's Law has no effect on community tenure (i.e., time to first re-arrest).
* Megan's Law showed no demonstrable effect in reducing sexual re-offenses.
* Megan's Law has no effect on the type of sexual re-offense or first time sexual offense (still largely child molestation/incest).
* Megan's Law has no effect on reducing the number of victims involved in sexual offenses.
[...]
* Given the lack of demonstrated effect of Megan's Law on sexual offenses, the growing costs may not be justifiable.

Unfortunately, my guess is that the supposed good intentions of those passing the laws will outweigh the reality of their lack of efficacy.
9.11.2009 2:00am
Mike& (mail):
I forget... do conservatives actually believe "judicial activism" means "ruling I don't like"

Pretty much.

While your comments betray a simple mind that deals better with sound bites than legal scholarship: Even you should be able to comprehend Keenan Kmiec's article on judicial activism.
9.11.2009 2:02am
DNJ:
Dave N: surely Judge Reinhardt gets the law right most of the time. Most cases are fairly clear-cut, simple and unideologically charged. Even Judge O'Scannlain, probably the most conservative judge on the Ninth Circuit, agrees with Reinhardt on most cases when they are together on a panel.
9.11.2009 2:25am
Daniel Chapman (mail):
You're right that I can probably understand it, but your unstated assumption is that I care to read it. Way to be consistent, Mike. Hope you have a happy life.
9.11.2009 7:06am
Dcuser (mail):
It drives me nuts how Reinhardt doesn't even acknowledge the true facts of the case:

"At the age of thirteen, defendant-appellant S.E. engaged in non-consensual sexual acts with a ten-year-old child of the same sex. The sexual activity continued until S.E. was fifteen years old and the younger child was twelve."


Does this mean S.E. was raping a pre-adolescent child for three years? In what circumstances? Was there violent? To not let us know these facts -- and to focus only on the harm to S.E. from having his prior violent acts exposed -- is to engage in a phony analysis. Judges like Reinhardt are exactly why we needed victims' rights statutes.
9.11.2009 8:22am
Wahoowa:
Reinhart, not Reinhold, though I think the ditzy actor would probably get the law right more often than the learned judge.

(sung by William Hung and the Hung Jury): MOCK TRIAL, WITH J. REINHOLD! MOCK TRIAL, WITH J. REINHOLD!

Arrested Development, RIP.
9.11.2009 9:01am
martinned (mail) (www):

Judges like Reinhardt are exactly why we needed victims' rights statutes.

Cases like this are exactly why victims rights statutes would be a serious evil. (I was going to write "supreme evil", but then I remembered what this case is actually about. You can take retoric too far.)
9.11.2009 9:01am
Daniel Chapman (mail):
DCuser: Your post illustrates exactly why SOR laws are punitive in effect and practice. I agree with everything you said, but you're sort of missing the point of the discussion. If we're talking about whether S.E. should be punished for his acts, then they can't change the law years after the fact to increase the punishment. If we're talking about rehabilitation and protection of the public, then what do victims' rights laws have to do with anything? The particular victim of his crimes have no more interest in a general regulatory scheme than the rest of society.
9.11.2009 9:24am
SC Public Defender:
"The distinction between adult and minors makes absolutely no sense in this context."

Except that in my State, Juveniles are not afforded the right to a jury trial, are not technically "found guilty" but are "adjudicated delinquent", and, in my experience, the Family Court Judges lean much more toward a probable cause standard while giving lip service to the beyond a reasonable doubt standard. Finally, given the ridiculous over breadth of the registry requirement much behavior that, while bad, is ultimately immature sexual experimentation can have lifetime consequences when the likelihood of the juvenile repeating the behavior, once dealt with, is fairly minimal.
9.11.2009 9:32am
Dave N (mail):
DNJ,

I was both being sarcastic and engaging in hyperbole.
9.11.2009 12:53pm
ShelbyC:

Except that in my State, Juveniles are not afforded the right to a jury trial, are not technically "found guilty" but are "adjudicated delinquent", and, in my experience, the Family Court Judges lean much more toward a probable cause standard while giving lip service to the beyond a reasonable doubt standard.


But given that registration supposedly isn't "punnishment", none of that should matter, no?
9.11.2009 12:58pm
THESMOPHORON:
Registration itself isn't punitive. Period.

Two things associated with registration are, however, punitive: (1) restrictions on where you can live and work and (2) the public shaming of what you've done.

The distinction in this case is based on (2). It's not that registration is punitive for adults but not for minors. It's that DISCLOSURE is punitive for anyone. Adult registration is not disclosure because adult convictions are already public record. Juvenile registration is disclosure because those records are sealed.

An analogous law requiring publication of alcohol-related offenses would be mere data manipulation for normal offenders, but would be emphatically punitive for those having successfully completed diversion programs, pled under advisement, or in any other way resolved the issue without public record.
9.11.2009 3:31pm
martinned (mail) (www):
@thesmophoron: That's actually a surprisingly sound defence of a distinction that seems - at first glance - pretty silly. Of course, it doesn't change the fact that, based on your (1), I would consider a retroactive registration requirement unconstitutional for adults and juveniles alike, but given Supreme Court precedent, your argement explains why juveniles might nonetheless be exempt from retroactive registration in a way that is a lot more convincing than Judge Reinhardt's opinion.
9.11.2009 6:25pm
htom (mail):
One of the problems is that those who paid the thousand dollar fine, or served the three months in jail, now find that they have to register even though finality (is that a word?) would seem to have attached.
9.12.2009 6:12pm
David Schwartz (mail):
And what is the test for whether something is punitive or not? Why couldn't a State, say, put offenders back in jail? It's not punitive, in the sense of intended to punish, they explain, but simply intended to protect the public. In fact, the conditions of confinement are made as pleasant as possible.
9.13.2009 8:28pm

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