The Volokh Conspiracy - 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.

	[Eugene Volokh, September 10, 2009 at 6:38pm] Trackbacks 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.