9th Circuit Holds that SORNA Prosecution Violates Ex Post Facto Clause (for Juveniles)

Thanks to Sentencing Law & Policy, we see that the Ninth Circuit Court of Appeals has ruled that SORNA's retroactive registration requirement violates the Ex Post Facto clause when applied to juvenile offenders. You may read the unanimous panel opinion here. Eugene Volokh has more. From the opinion:

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.

I'm still baffled why judges aren't distinguishing the decision in Smith v. Doe from a SORNA prosecution in a more straight-forward manner. As I have argued repeatedly, the Smith court made clear that it was only considering a civil suit against being listed on the registry and NOT the criminal penalties associated with failing to register: 

A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion.

If even Judge Reinhardt, the author of the Ninth Circuit opinion, is unwilling to distinguish Smith on such grounds, I'm beginning to wonder if any Circuit will. However, there is reason for why Judge Reinhardt did not endorse what is, in my opinion, the easier and better argument for distinguishing Smith. From Footnote 16 of the opinion:

United States v. George, ___ F.3d ___, 2009 WL 2591677 (9th Cir.), addressed an ex post facto challenge to SORNA’s criminal provisions from a 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 (2003), and George did not consider the separate issue of whether juvenile offenders may be constitutionally required to register based on pre-SORNA adjudication.

Because another panel of the 9th Circuit had already decided a typical 2250(a) prosecution involving an adult offender, the only possible grounds for Judge Reinhardt to distinguish the cases was based upon the defendant's status as a juvenile (which I think is a suspect distinction). However, if the 9th Circuit hears the case en banc, that panel would be free to distinguish Smith on the grounds above and overrule the George panel opinion. I'm doubtful that will happen, but I hope it will so that some sense is finally added to the discussion of the Ex Post Facto Clause.

Comments

[Sex Offender Issues]

http://sexoffenderissues.blogspot.com

Why for juveniles only? If it's unconstitutional it's unconstitutional, period!