March 2010:Introduction:
Six-year-old Amanda Wengert was kidnapped from her family’s home, sexually assaulted and murdered by her nineteen-year-old neighbor and family friend, Kevin Aquino.1 When Kevin was 17, and still a juvenile under New Jersey law, he admitted to sexually molesting three young children and was sentenced to a year’s probation and counseling.2 Like most juvenile court cases, the proceedings were private, and only Kevin’s family knew about his past offenses.3 This horrific event left everyone thinking that something had to change.4
For over a decade, every state in the United States has maintained some form of sex offender registration and notification law.5 The primary goal of sex offender registries is to track convicted sex offenders and make their personal information available to the public in order to prevent further victimization.6 Originally, juvenile sex offenders were subject to registration and notification requirements only if they were transferred out of the juvenile justice system and convicted as an adult.
More recently, however, there has been a movement to place all juveniles convicted of a sex offense on sex offender registries. At least thirty-two states have registration laws for juveniles under the age of eighteen.7 Twenty-two of those states have community notification requirements for juveniles, and many allow for removal from the registry if the juvenile can demonstrate successful rehabilitation.8
With the passage of the Adam Walsh Child Protection and Safety Act (AWA) in 2006, federal law now mandates that certain juvenile sex offenders be included with adult offenders in a national sex offender registry. The Sex Offender Registration and Notification Act (SORNA), a provision of the AWA, mandates that juveniles age fourteen or older adjudicated for certain sex-based offenses in
juvenile court must register for a period of twenty-five years to life with a national sex offender registry.9 States that fail to comply with AWA, including the juvenile registration requirements, will forfeit federal funding.10 There was considerable debate in the Senate regarding whether SORNA should apply to juveniles at all, and if so, to what extent.11 The result appears to be a compromise.12
Many sex offender registration laws, including SORNA, require retroactive registration by adults and juveniles who were convicted before the statute’s effective date. Retroactive registration requirements have been challenged as violating the United State Constitution’s Ex Post Facto Clause; however, as of 2003, the United States Supreme Court has held that laws requiring retroactive
registration are constitutional.13 While the Court did not distinguish between adult and juvenile sex offenders, the statute was challenged by adults, and many of the justifications for the constitutionality of the statute included factors that are applicable to the adult criminal justice system. Recently, in a case of first impression, the Ninth Circuit held that retroactive application of SORNA’s
juvenile registration provision was punitive, and thus violated the Ex Post Facto Clause.14
The objective of this note is to analyze United States v. Juvenile Male, the recent Ninth Circuit case, and the constitutionality of retroactive application of sex offender registry laws covering individuals who were adjudicated as juveniles. Part II of this note identifies unique aspects of the juvenile adjudication system, including the federal statutory framework governing juvenile proceedings. Part III examines juvenile registration requirements under SORNA. Next, Part IV evaluates the United States Supreme Court jurisprudence on Ex Post Facto violations. Part V discusses United States v. Juvenile Male and the constitutional implications of SORNA. Finally, Part VI summarizes practical solutions by proposing a case-by-case approach.
For the remainder of this paper: by Tara L. Merrill
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