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9th Circuit Says SORNA Violates Ex Post Facto

September 14, 2009 Comments off

Sentencing Law & Policy : 9th Circuit Holds that SORNA Prosecution Violates Ex Post Facto Clause (for Juveniles).

The Ninth Circuit, in an lengthy panel opinion authored by Judge Reinhardt, today declares in US v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) (available here) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders. Here is a key paragraph from the start of the unanimous panel 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.

For a host of reasons, this ruling seems likely to get considerable attention and scrutiny from federal officials in other branches as well as perhaps from the full Ninth Circuit and/or the Supreme Court.


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Full text of REINHARDT, Circuit Judge Opinion:

“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

2 Because we reverse the district court’s imposition of the registration requirement and hold that in light of the Ex Post Facto Clause, S.E. is not required to register as a sex offender under SORNA, we do not consider his additional arguments that the retroactive application of SORNA violates procedural due process, substantive due process, and the nondelegation doctrine.

IN Cities Weighing Sex Offender Park Bans

September 14, 2009 Comments off

theindychannel.com : City Weighs Sex Offender Park Ban, Parents Mixed On Proposal.

More Indiana communities are considering the implementation of bans on convicted sex offenders in city parks because of a recent Court of Appeals ruling. Lebanon officials will consider such a ban Monday night, 6News’ Rick Hightower reported.

Law enforcement agencies and some parents worry that parks are a magnet for sex offenders, but others contend the ban infringes on rights and is unnecessary.

“We’re restricting people’s basic rights. Everybody has the opportunity for a second chance. I thought that’s what this country is all about,” said parent Anthony Spencer. “Just to say because someone made a mistake, banning them from being able to enjoy a park is kind of tough.”

Others think a park sex offender ban is too narrow and may target the wrong people.

“I think it’s something to worry about not only in the parks, but where you live, as well,” said parent Angela Summers. “Somebody may be convicted as a sex offender and really not be a sex offender.”

The Indiana Supreme Court declined to hear a challenge to Plainfield’s park ban on sex offenders, in effect letting the ordinance upheld by the appeals court stand. Greenwood has a similar ban.