Posted by Eugene Volokh:
Retroactive Requirement to Register as Sex Offenders Violates Ex Post Facto
Clause When Applied to Juvenile Offenders:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252622308
So holds a unanimous Ninth Circuit panel opinion, authored by Judge
Reinhardt, in [1]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. [2]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 [3]How Appealing for the pointer.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/09/10/07-30290.pdf
2. http://www.law.cornell.edu/supct/html/01-729.ZS.html
3. http://howappealing.law.com/
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