U.S. v. Juvenile Male

• Decision Date: 10 September 2009
• Docket Number: No. 07-30290.,07-30290.
• Citation: 590 F.3d 924
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 924

UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.

No. 07-30290.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2008.

Filed September 10, 2009.

Amended January 5, 2010.

Anthony R. Gallagher, Federal Defender, District of Montana, for the defendant-appellant.

William W. Mercer, United States Attorney; Richard A. Hosley, United States Attorney, for the plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-05-00054-SEH.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and M. MARGARET McKEOWN, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The clerk is directed to hold the mandate pending further order of the court.

The opinion filed September 10, 2009, slip op. 13109, and appearing at 581 F.3d 977 (9th Cir.2009), is hereby amended as follows:

1. Slip op. at 13124, line 21: after and before, insert the following footnote:

Our reasons for distinguishing Doe apply as well to

Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997) and Hatton v. Bonner, 356 F.3d 955 (9th Cir.2004). Russell and Hatton rejected Ex Post Facto challenges to sex offender registration requirements for those convicted of sex offenses as adults. Neither discussed whether the registration requirements would be punitive if imposed on those adjudicated delinquent in the juvenile justice system, nor did they address the contrasting approaches to privacy/publicity in the juvenile and adult systems. In fact, the Russell court specifically recognized that "[t]he information collected and disseminated by the Washington statute is already fully available to the public. . . ." Russell, 124 F.3d at 1094 (rejecting offenders' contention that the registration and notification requirements violated their right to privacy).

2. Slip op. at 13140-41, replace the text of footnote 16 with the following United States v. George, 579 F.3d 962 (9th Cir.2009), addressed an ex post facto challenge to SORNA's criminal provisions from an adult defendant who was convicted of a sex offense prior to SORNA and then convicted under SORNA for failure to register. Smith v. Doe had already established that under SORNA adults may be constitutionally required to register as sex offenders based on pre-SORNA convictions, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and George did not consider the separate issue we decide here, whether juvenile offenders may be constitutionally required to register based on pre-SORNA adjudications. In any event, George was lawfully required to register as a sex offender as a condition of his pre-SORNA plea agreement. George argued that his failure to register was a one-time event that took place before SORNA took effect, and therefore his conviction for violating SORNA amounted to an unconstitutional retrospective application of a criminal law. We held otherwise, stating, inter alia, that George, whose initial requirement to register was lawful, violated the law not only when he failed to comply but as long thereafter as he continued to fail to do so. In short, we held that when there is a lawful obligation to register, that obligation is a continuing one. George's offense of not registering continued from SORNA's passage on, and SORNA's imposition of criminal liability for the post-SORNA conduct raised no ex post facto issue. George does not affect our decision here. Because Juvenile Male (S.E.) could not lawfully be required to register on the basis of his pre-SORNA conduct, and that was the only improper sexual conduct with which he was charged, he did not, under our decision here, violate any lawful requirement of SORNA. As there was no obligation on S.E.'s part to register, there was, of course, no continuing obligation to do so.

OPINION

REINHARDT, Circuit Judge:

As a society, we generally refuse to punish our nation's youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person's permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delinquents and placed in juvenile detention centers. Historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the "dissemination of truthful information" and "[t]ransparency" that characterizes the punitive system in which we try adults. Compare 18 U.S.C. § 5038(e) ("[N]either the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.") with Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ("[O]ur criminal law tradition insists on public indictment, public trial, and public imposition of sentence.").

In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act ("SORNA" or "the 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. 28 C.F.R. § 72.3 (2007).

The retroactive application of SORNA's juvenile registration provision affects people of all ages—not only juveniles. As we are still close in time to SORNA's passage, some, like S.E., were adjudicated delinquent relatively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudicated delinquent years or even decades before SORNA's enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA's retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers—many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA's enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numerous individuals for the rest of their adult lives.¹

We must decide as a matter of first impression—in our court and in any other circuit court—whether the retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA's provisions to former juvenile offenders is punitive and, therefore, unconstitutional.²

I.

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. S.E. pled "true" to the commission of acts that, had they been committed by an adult, would constitute aggravated sexual abuse under 18 U.S.C. § 1153 and § 2241(c), because the younger child was, during the period of the charges, under twelve. As a result, S.E. was adjudicated delinquent under 18 U.S.C. § 5031, et seq.³

In 2005, a year before SORNA was adopted, the district court sentenced S.E. to two years of detention at a juvenile facility followed by supervised release until his twenty-first birthday. He was not at this point, of course, ordered to register as a sex offender. S.E. completed his two-year confinement and moved to a prerelease center where, pursuant to the terms of his sentence, he was to reside for six months. When S.E. failed to engage in a required job search, center officials deemed him a program failure and requested his removal. In 2007, a year after the enactment of SORNA, the district court revoked S.E.'s supervised release due to his failure to reside at the center as required by his conditions of supervision, and ordered an additional six months of confinement and continued supervision until S.E.'s twenty-first birthday. The judge also imposed a "special condition" mandating that S.E. register as a sex offender. S.E. objected to the imposition of the registration requirement and timely filed a notice of appeal. The government argues that the special condition is valid because S.E. is required to register by SORNA. S.E. responds that the Ex Post Facto Clause of the United States Constitution bars the retroactive application of the registration provision of SORNA to persons who prior to its passage were designated as juvenile offenders.

Reviewing all questions at issue here de novo, see Beeman v. TDI Managed Care Services, 449 F.3d 1035,...